text:
    BIDDLE v. BIDDLE.
    Partition — Estates—Parties.
    One of the several owners of an undivided interest in lands in possession may maintain a bill for a partition, under 2 How. Stat. chap. 270, agains this co-tenants, joining as defendants —by reason of their having independent interests which may be affected by the [proceeding — the. tenants for life of the other undivided interests and all the remaindermen in being, though, by the terms of the will under which the several interests were acquired, persons not yet in being may be entitled to an interest in the remainders at the termination of the life estates.
    Appeal from Wayne; Donovan, J.
    Submitted April 19, 1898.
    Decided May 10, 1898.
    Bill by Louisa Biddle against William S. Biddle, executor of the last will and testament of Eliza E. Biddle, deceased, and others, for a partition of real estate devised under said will. From a decree for complainant, an appeal was taken by one of the defendants, Eliza B. Williams, for the purpose of obtaining the sanction of the Supreme Court to the proceedings.
    Affirmed.

      Sidney T. Miller, for complainant.

      Gray & Gray, for appealing defendant.

      James C. Smith, Jr., for other defendants.
   Moore, J.

This case grows out of some questions which arose in an effort to make a contract authorized by a decree made in the case of In re Beecher’s Estate, 113 Mich. 667, and a reference to that case may be profitable in considering this. An agreement was entered into between the representatives of the estate of Luther Beecher, and the owners of the Biddle House, in Detroit, the heirs of Eliza E. Biddle, for its purchase by the first-named parties. It was proposed to give a deed signed by the three surviving children and by the sixteen grandchildren of Mrs. Biddle, all of whom are of age. It was said there was a vested salable title only as to an undivided fourth of the property, and the sale was not completed. This bill was then filed for a partition of the property. Because of the character of the building, a partition can be made only through a sale.

At the time of her death, Eliza F. Biddle was duly seised of the property, and devised the same by will to her four children, each to hold an undivided one-fourth for life. Upon the death of each life tenant, one undivided one-fourth was devised to the grandchildren of the testatrix then living (without regard to representation), or to the issue then living of any deceased grandchild (by right of representation). It was also expressly provided that no grandchild or great-grandchild should take a vested interest until the death of each life tenant, each one-fourth thereupon vesting. Edward J. Biddle, one of the life tenants, died, leaving five children, all now living. There were then, and still are, sixteen grandchildren, all of age, who thereupon became seised of an estate in fee and in possession of an undivided one-fourth of the property, each owning an undivided one sixty-fourth of the whole.

The parties to this suit are all of the living descendants of Eliza F. Biddle, being her three surviving children, her sixteen grandchildren, and the wives of the four grandsons who are married, and the twenty-two great-grandchildren, who are all minors. Bosa Doran is a party defendant, because the will gives her an annuity of $500 from the rents. Sidney T. Miller and the administrators of the estate of Luther Beecher are brought in, because they hold, one a mortgage upon, and the others a leasehold interest in, the property involved in the partition. Of the three life tenants, one was brought in by publication, and two appeared voluntarily. Of the fifteen grandchildren, defendants, one was personally served with process, eleven were brought in by publication, and three appeared voluntarily. Of the fo.ur wives, two were brought in by publication, and two appeared voluntarily. Of the twenty-two infant great-grandchildren, eleven were served with process, and the other eleven, being beyond the reach of process, were brought in by publication. Rosa Doran was brought in by publication, and Sidney T. Miller and the administrators of the Beecher estate entered appearance voluntarily. All of the adult defendants were represented in court except Rosa Doran and Stratford Biddle, against whom a default was taken. Upon a showing of the infancy of the twenty-two great-grandchildren, the court appointed Felix A. Lemkie as guardian ad litem. The proofs were taken in open court, in the presence of the guardian ad litem and all the counsel, none of whom controverted the facts alleged in the bill. The court below ordered a sale and partition of the property, from which decree Eliza B. Williams appeals.

It is conceded by all the solicitors that there would be no doubt about the jurisdiction of the court to make the decree which was made had it not been for the decision in Metcalfe v. Miller, 96 Mich. 459 (35 Am. St. Rep. 617). We think the cases are distinguishable. In the Metcalfe Case it was shown that Mrs. Metcalf owned four-fifths of a life estate. Her husband owned one-fifth of the life estate and one seventy-second part of the reversion, all of which reversion was subject to the life estate. Mr. Metcalfe filed his bill for partition, not simply of the life estate, but of the whole estate, in which his reversionary interest did not vest until the life estate had passed. In that case it was said that the owners of the life estate were holders as tenants in common, and that, as between them, partition might be had; but that it did not follow that they were entitled to it against the reversioners. In this case the property was of such a character that it could not be divided by metes and bounds. Mrs. Biddle gave to each of her children an undivided fourth of the property for life, with remainder over. Upon the death of any one of the four children of Mrs. Biddle, his interest vests in all of the grandchildren of the testatrix. If any grandchild die leaving descendants, they take by right of representation. Edward J. Biddle, son of Eliza E. Biddle, has died. At his death there were sixteen grandchildren, all of whom yet live. They at once, by the terms of the will, became vested in fee with the quarter interest held during his life. One of them has filed the bill for partition, asking for her one-sixteenth of the quarter in fee, in possession. She asks partition among the sixteen grandchildren who own the quarter interest in common. The other parties to the suit are brought in as having interests in the premises which may be affected by the proceeding.

The proceeding is brought under the provisions of chapter 270, 2 How. Stat., and the interests of these parties are fully protected by the decree, from which none of them appeal. The interest of each grandchild is the same as the interest of any other one. As to the one-fourth interest sought to be partitioned, they are tenants in common and in possession. It was stated in Metcalfe v. Miller, supra, that “the object of the statute was * * * to enable joint tenants, or tenants in common, or persons having an undivided possession, to have partition between themselves.” See, also, 2 Barb. Ch. Prac. (2d Ed.) book 5, chap. 9, §§ 1, 2. As to the one-fourth interest sought to be partitioned in this proceeding, the life estate was •extinguished by the death of Edward J. Biddle. The other three children of Mrs. Biddle had no interest in it. The sixteen grandchildren were the reversioners. Their interests were'in common.

The decree is affirmed. As all the grandchildren are alike interested in having this question settled, the costs will be paid by the estate belonging to them.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    ALDRICH CAR-SEAL MANUFACTURING CO. v. AMERICAN EXPRESS CO.

    Express Companies — Delivery oe Package.
    Plaintiff, desiring to submit bids with, samples to the United States government, expressed them to “Hon. J. G. Carlisle, Secretary United States Treas. Dept.,” indicating in the margin of the express package what it contained. The express company caused the package to be delivered at the treasury, at the place where express packages so directed are customarily delivered if there are no contrary instructions, within, the time agreed upon, half an hour before the time that the bids were to be opened, but for some reason the package did not reach the secretary personally, or the department of the treasury where bids are received, until one hour too late to have consideration. Held, that the express company made a proper delivery of the package in due time, and was not liable for the subsequent delay.
    Error to Wayne; Hosmer, J.
    Submitted April 19, 1898.
    Decided May 10, 1898.
    Case by the Aldrich Car-Seal Manufacturing Company against the American Express Company for an alleged failure to deliver a package at an agreed time. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff brings suit for damages for alleged failure to deliver-a package at the United States treasury department, Washington, D. C., before 2 o’clock p. m., July 1, 1896. The facts in this case are not in dispute. The following statement is taken substantially from the brief of the defendant: The plaintiff, desiring to submit bids for furnishing car seals to the United States government, inclosed its bid, with samples of the seals, in a box addressed, “Hon. J. G. Carlisle, Secretary United States Treas. Dept., Washington, D. C.” On the right-hand upper corner was written, “From the Aldrich Car-Seal Manufacturing Co., Detroit, Mich.and on the left-hand lower corner, “ Proposals for devices for cording and sealing packages, and for sealing cars and vessels. ” On the morning of June 29, 1896, its manager took the box to the express office, and, going to the department where miscellaneous packages are received, handed it to the clerk; telling him that it must be in the treasury department before 2 p. m., July 1st. The clerk informed him that it would be delivered on the first delivery on the morning of July 1st. The clerk was about to write a receipt, when the manager informed him that he wanted the package sealed. The clerk then told him to take it over ta the money-order department. The manager then took the package over to the money-order side, and said to the clerk in charge of that department, “I want to send that package to Washington.” No further conversation was had with the clerk in the money-order department. The clerk then wrote the usual receipt, and the manager paid him 25 cents charges for carrying the package. The package left Detroit the same day, at 1:20 p. m., on the first train, and arrived at Columbus, Ohio, about 9:15 p. m. that evening. The next morning, at 7 o’clock, it was transferred to the Adams Express Company, at Columbus. The package was forwarded from Columbus on the first train that the Adams Company did business on. The nearest point to destination reached by the defendant was Columbus, Ohio. The package arrived at Washington July 1st. It was delivered at Washington by the Adams Express Company’s driver July 1st, at 1:25 p. m., to C. E. Vickery, at his office, the storeroom of the treasury department, and his receipt was taken therefor. At this time Mr. Vickery “was employed in the department of the secretary of the United States treasury as the storekeeper in charge of the storekeeper’s department.” He liad “charge of all the store supplies in the treasury department,” and had been so employed since the administration of Secretary Carlisle. The court directed a verdict for the defendant, upon the ground that the package was delivered within the time agreed upon.

      Henry M. Cheever and Alfred Russell, for appellant.

      Wisner & Harvey, for appellee.

       Rehearing denied June 28, 1898.

   Grant, C. J.

(after stating the facts). The receipt in this case is identical, except in the names and address, with that found in Smith v. American Express Co., 108 Mich. 572. The defenses were: (1) That the package was delivered in time; and (2) that the defendant had complied with its contract, by delivering the same in the regular course of business to the connecting carrier, the Adams Express Company. There was no request or direction on the part of the plaintiff to deliver the package directly to the secretary of the treasury, or to any one of its numerous departments. It is conclusively proven that it was delivered at the treasury department, at the customary place for such packages to be delivered, in the absence of express directions to the contrary, three-quarters of an hour before the time that the bids were to be opened and examined. If there was fault anywhere, it was attributable to the treasury department, at Washington, and not to the express companies who agreed to transport and deliver it. The agent of the Adams Express Company, who delivered it, swore positively to its delivery at 1:25 p. m., July 1st, and that he minuted upon the proper book at that time the date of such delivery. This book was identified and received in evidence. Two witnesses, employed in important positions in that department of the treasury where these bids would be received, testified that they were not received in that department till 3:07 p. m. This testimony is not in conflict with that of -the agent of the express company who delivered the package. That company had discharged its full duty in delivering the package at the usual place in the treasury department. It did not agree or assume to deliver it to the appointment division, which had charge of these contracts, and bids, or to the secretary in person. Plaintiff gave no such direction to defendant, and did not inform it that there was any particular person or department to whom, or to which, the package was to be delivered. The court properly directed a verdict for the defendant.

Judgment affirmed.

The other Justices concurred.


text:
    PHELPS v. WAYNE CIRCUIT JUDGE.
    Arbitration and Award — Confirmation—Review of Evidence.
    Under the arbitration statute (2 How. Stat. chap. 292), where the proceedings of the arbitrators are regular, and an award is duly and legally made, such award should be confirmed by the court; it having no power to examine the evidence, and to vacate the award because, on such examination, it reaches a different conclusion from that of the arbitrators.

      Mandamus by Ralph Phelps to compel Joseph W. Donovan, circuit judge of Wayne county, to set aside an order vacating an award by arbitrators.
    Submitted April 19, 1898.
    Writ granted May 10, 1898.

      Edwin F. Conely and Orla B. Taylor, for relator.

      Emory T. Wood, for respondent.
   Grant, C. J.

The relator and one Cyrus Johnston entered into an agreement of arbitration, under chapter 292, 2 How. Stat. Three arbitrators were chosen. The proceedings were regular, and an award was duly and legally made. Relator moved for a confirmation. Johnston moved to vacate the award, upon the ground that the arbitrators exceeded their powers. Upon the hearing of the two motions, the former was denied, and the letter granted. The grounds upon which such award may be vacated are defined in the statute (2 How. Stat. § 8482). Johnston claimed before the arbitrators that he should be allowed an item of $500. . This was contested by the relator. The testimony was conflicting, and the arbitrators decided in his favor. The circuit judge reviewed this evidence, and reversed the decision of the arbitrators.

The vacation of the award involved an examination into the testimony 'iipon which the arbitrators based it. Courts do not possess this power, under the statute. Chicago, etc., R. Co. v. Hughes, 28 Mich. 186. The circuit judge was in error in holding that it was in his power to vacate the award if, in his opinion, the ends of justice required it. The award is conclusive, and the court can only refuse to enter judgment confirming it for one of the reasons specified in the statute. Neither of these reasons existed. The circuit judge, and not the arbitrators, exceeded his powers. He should have confirmed the award.

The writ will issue as prayed.

The other Justices concurred.


text:
    MORSE v. BLANCHARD.
    1. Appeal — Assignments of Error — Absence of Exceptions.
    Errors assigned upon the admission of evidence cannot be considered where no exceptions were taken in the court below.
    2. Evidence — Written Instruments — Microscopical Examination.
    It is proper for the circuit judge, in a case tried without a . jury, to subject an instrument in suit to a microscopical examination, after the case is submitted, to aid him in determining which of two words, one of which was written over the other, was written first.
    3. Promissory Notes — Acceptance of Interest — Accommodation Maker — Extension of Time.
    An accommodation maker of a note is not relieved from liability by the acceptance by the holder from the principal debtor, before the maturity of the note, of interest covering the entire period for which it was to run, where no express agreement was made that the time of payment should thereby be extended.
    Error to Kent; Adsit, J.
    Submitted April 20, 1898.
    Decided May 10, 1898.

      Assumpsit by Charles Morse against Duane Blanchard, impleaded with Elmer E. Johnson, on a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. W. Hunter, for appellant.

      L. E. Carroll, for appellee.
   Grant, C. J.

Plaintiff brought suit in assumpsit against the defendants, declaring upon the common counts. A bill of particulars being demanded, he furnished one, declaring his demand to be upon a promissory note dated November 3, 1894, for J>150, due one year from date thereof, with interest at 8 per cent., and signed by defendants. Blanchard was an accommodation maker. The defense was that plaintiff had extended the time of payment without the consent of Blanchard, and had thereby released him from liability. The case was tried without a jury, and the court made a finding of facts and law, and rendered judgment for the plaintiff.

It is urged that the court erred in receiving the note in evidence, because an alteration appeared upon its face, which required explanation before it was entitled to be admitted. It was claimed that the word “one” had been changed to “two,” making it read payable in two years instead of one. No exception was taken to the ruling of the court admitting it, and therefore this objection cannot be considered.

It was conceded that the word “two” and the word “one” had been written in the note. It was a question which was written first. The note was written by Johnson’s wife. Johnson procured the signature of Blanchard, and then delivered the note to plaintiff, and received the money. The testimony on the part of plaintiff was direct and positive that the note was in the same condition when received by him as when produced upon the trial. The defendants gave evidence tending strongly to show that it had been changed. Both parties conceded that it was executed and delivered as a note for one year. The court found as follows:

“The note, when produced in court, bore upon its face a blot or smear, which the court finds by examination of the said note to consist of a blurred ‘two,’ over which there is written the word ‘one,’ and that this condition existed at the time that the note was delivered to the plaintiff.”

It is urged as error that the judge, after the submission of the case, made a microscopical examination, in order to determine which word was written first. Whether the court made such examination does not appear. If he did, he committed no error. Judges and jurors have the right to the most critical examination in such cases, and to use magnifying glasses for that purpose.

The testimony as to the extension of time was- in direct conflict, and will not be reviewed by this court. Johnson paid a year’s interest towards the end of the year, but this did not operate to extend the time. Plaintiff testified that nothing was said between them about extending the time, and that he made no such agreement.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    TREBILCOCK v. ANDERSON.
    1. Libel — Mayor's Veto Message — Privilege.
    A communication from the mayor of a city to the common council, advising them of his grounds for vetoing a resolution passed by them, is, so far at least as the matter therein contained is pertinent to the subject, absolutely privileged.
    2. Same — Pertinency—Question of Law.
    The question whether such a message contains matter not pertinent is one of law for the court.
    3. Same.
    The mayor of a city, in communicating to the common council his reasons for vetoing a resolution allowing to a “taxpayers’ association” the use of the council rooms, has a right to state any matters bearing upon the previous relations of the individuals comprising the association to the city, and their alleged unfitness to influence public affairs.
    Error to Gogebic; Haire, J.
    Submitted January 4, 1898.
    Decided May 17, 1898.
    Case by ‘William Trebilcock against Andrew E. Anderson for libel. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Charles E. Miller, for appellant.

      John D. Barry (T. E. Tarsney, of counsel), for appellee
   Hooker, J.

In December, 1894, the defendant was mayor of the city of Ironwood, and the plaintiff had been his predecessor for three years, ending in the spring of 1894. Previous to December, 1894, there was organized in that city an association called the “Taxpayers’ Association.” A short time before December 4, 1894, this organization presented to the common council of the city a request for the privilege of. holding its meetings in the common council chambers, and a resolution granting it was adopted by unanimous vote of the aldermen'. Within 24 hours, the defendant filed a written message, addressed to the common council, announcing the veto of the resolution authorizing the use of the council rooms, and giving what purported to be reasons therefor. This message afterwards appeared in the official organ (i. e., newspaper) of the city. Thereupon this action for libel was brought.

In opening the case, counsel for the plaintiff said, after stating the foregoing facts, that—

“We expect to show that the publication of this paper by the defendant in this case was malicious, and intended to injure the plaintiff, and that the plaintiff has suffered damage thereby. The alleged libel, known as the ‘veto message,’ I hold in my hand, and ask to have treated as a part of this opening.' We do not expect in this case to prove any other publication than the writing by the mayor of the so-called ‘veto message,’ the presenting it to the city clerk, its publication by being read by the city clerk in the common council, and its subsequent publication by being published in the official paper of the city. We expect to show no other publication by the defendant.”

An objection was made to the introduction of any testimony, upon the ground that the writing was ‘ ‘ absolutely privileged.” The learned circuit judge sustained the objection, and directed a verdict for the defendant.

There are two views that may be taken of this writing, and the circumstances under which it was published, i. e., filed: First, that it was conditionally privileged; second, that it was absolutely privileged. If it was only conditionally privileged, the question of malice should have been submitted to the jury upon the testimony offered; but we must consider it as absolutely privileged, under the decision in the case of Wachsmuth v. Merchants’ Nat. Bank, 96 Mich. 427 (21 L. R. A. 278), unless there is that in the message itself which was not a proper subject for communication to the council, by reason of its not being pertinent to the subject. Whether the law justifies even this limitation upon the absoluteness of the privilege, we will not inquire, and design to imply no •opinion, but will treat the existence of such a limitation as conceded, for the purpose of the case. Whether or not the message contains anything in its nature libelous, that was not pertinent, was a question for the court, inasmuch as it and the proceedings of the council were in writing.

The plaintiff, with others, had organized what they called a “Taxpayers’ Association,” apparently with a, view to influencing the management of public affairs which were confided to the council. To further that end, they asked the use of public property. It was the duty of the mayor to veto the resolution if, in his opinion, the interests of the city required it; and it was proper for him to advise the council of his reasons therefor in his veto message, as required by the charter. In this, he was warranted in stating any reasons legitimately bearing upon the relation of the plaintiff to city affairs, and the fitness of the association to influence them; and, if his privilege depends upon the question of pertinency, reasonable latitude should be permitted. Our examination of the article leads us to the conclusion that the entire message was pertinent to the subject, and that the same was privileged. The judgment is therefore affirmed.

The other Justices concurred.


author: Moore, J.

text:
    FEATHERLY v. HOFFMAN.
    Tax Sales — Affidavit of Publication — Mutilation—Evidence.
    An affidavit of publication, in proceedings for the sale of lands delinquent for taxes, which recites that “the order and petition, of which a printed copy is hereto annexed, were published,” etc., and has attached a newspaper clipping containing the order and petition, but no schedule of the lands advertised, is not shown to have been mutilated after filing by the testimony of the publisher that he presumed everything was all right when the paper was filed, and of another witness, who examined the files 15 months after the sale, that it is his recollection that at that time the affidavit was pinned to the full list.
    Appeal from Bay; Maxwell, J.
    Submitted January 6, 1898.
    Decided May 17, 1898.
    Petition by Harriet C. Featlierly against John M. Hoffman and the auditor general to set aside a tax sale. From a decree for petitioner, defendants appeal.
    Affirmed.

      Fatio Colt (F. A. Cooley, of counsel), for petitioner.

      Avery Bros. & Walsh (Fred A. Maynard, Attorney General, of counsel), for defendants.
   Moore, J.

The petitioner was the owner of certain lands in Bay county, which were sold for the taxes of 1893, at a sale made in December, 1895, and were bid in for the State. In April, 1897, the lands were deeded by the State to defendant Hoffman. • The petitioner claims that the court obtained no jurisdiction to make a decree for a sale of the lands, and asks that the sale be set aside and the decree vacated. The petitioner offered to pay the taxes and costs. After a hearing, before the circuit judge, he vacated the decree, and set aside the sale, first requiring the petitioner to pay the taxes and costs, which were at once paid by her into 'court. From that decree defendants appeal.

A number of questions are raised by the record and argued by counsel. We think one of them disposes of the case. The record shows that the publication of the order, petition, and schedule was made in a supplement to the Bay City Tribune. The order, petition, and schedule made nearly four seven-column pages of that paper. This proceeding was heard before the same judge who made the decree ordering the sale of these lands. The original files in that matter were offered in evidence. The proof of publication was made by the publisher of the paper, and recited “that the order and petition, of which a printed copy is hereto annexed, were published,” etc. Pinned to the affidavit of publication is a slip of paper one column wide and about one-third of a column long, evidently cut out of a newspaper, containing the order of the circuit judge and the petition of the auditor general, but not containing a schedule of the list of lands, which followed this order and notice as published in the paper.

On the part of the defendants, an attempt was made to show by parol that the paper attached to this affidavit contained the schedule containing the list of the lands when it was filed with the clerk of the court. It is conceded that the affidavit was not attached to the notice, petition, and schedule by pasting or in any permanent way, but that whatever paper was attached was simply pinned. The publisher of the paper was sworn as a witness, but his recollection was not at all clear as to the condition of the paper when he filed it. He is not certain that when he swore to the affidavit it was pinned to the order, petition, and schedule, or that the schedule was attached when the paper was filed with the clerk, though he says he presumed at the time it was done right. Neither the clerk nor the prosecuting attorney was sworn as a witness. Mr. 'O’Connor, a dealer in tax titles, was sworn as to an examination made by him of these and other files in March or April, 1897. On his direct examination he testified that at that time the printed list and affidavit of publication were in the files; the affidavit was pinned to the printed list. On his cross-examination he testified:

“I looked over the.list for a number of years. My impression is that the affidavit was pinned to the list of lands to be sold for the taxes of 1893 when I looked at it; in other words, that is simply my recollection. If it had not been there, I should have noticed it, and been a little bit scared of the proceedings. I was more interested in this one than in all the rest combined, but am not willing to put it any stronger than that it is my recollection that the affidavit was pinned to the full list. ”

It is contended that it is not competent to impeach or contradict a record by parol. Without passing upon that question, we are all agreed that, before a record can be added to, contradicted, or impeached, the proof ought to be clear and convincing. It is a somewhat significant fact that the printed slip which was attached to the affidavit did contain a copy of the order made by the circuit judge and a copy of the petition of the auditor general, and it might well be said that a layman would think the attaching of the order and petition would be a sufficient compliance with the requirements of the blank furnished the affiant upon which to make proof of publication, without attaching the schedule. It is conceded that, taking the record as it now stands, it is not sufficient to give the court jurisdiction to make the decree directing the sale. We do not think the evidence is so clear that we ought to find that the record has been mutilated since it was filed.

The decree is affirmed. The petitioner will recover costs of this court

The other Justices concurred.


text:
    MAY v. CLELAND.
    Corporations — Stock and Stockholders — Unrecorded Transfer — Execution Sale.
    A pledge oí corporate stock as collateral for a Toan will be upheld as against one who, with notice of the transfer, purchases the stock at a sale under execution levied upon it as the property of the pledgor, although the transfer to the pledgee was never recorded upon the books of the corporation.
    Appeal from Ingham; Person, J.'
    Submitted April 22, 1898.
    Decided May 17, 1898.
    Bill by John A. May, receiver of the Ingham County Savings Bank, against Holland J. Cleland, Sidney Edson, Frederick Thoman, Philip Perkins, and the Michigan Knitting Company, to foreclose a lien on certain shares of stock in the defendant corporation. From a decree for complainant, defendant Thoman appeals.
    Affirmed.
    The facts are undisputed, and are as follows: The complainant, as receiver of the Ingham County Savings Bank, filed the hill of complaint in this cause to foreclose a lien on certain shares of the corporate stock of the Michigan Emitting Company, pledged December 13, 1895, with said bank, by the defendant Rolland J. Cleland, as collateral security for the payment of a certain loan made to him, and certain indebtedness owing said bank by one George M. Dayton. At the time of receiving the stock, the bank did not notify the Michigan Knitting Company of its rights therein, nor did it have or seek to have a transfer of the stock upon the books of the company until after the levy of the execution hereinafter mentioned. On the 9th day of July, 1896, a levy was made upon this stock under a writ of execution issued on a judgment in the circuit court for Ingham county in favor of one Philip Perkins and against the defendant Cleland and others. The levy was regularly made, and proper proceedings to a sale thereof followed. On August 13, 1896, said shares of stock were sold by Sidney Edson, deputy sheriff, to the defendant Frederick Thoman, for the sum of $7.50, such sum being the highest bid made therefor. While the sale was in progress, and before Mr. Thoman purchased, the complainant caused public notice of its rights in said stock to be given to all bidders attending the sale; and the defendant Thoman had full notice of complainant’s rights and equities in the stock. The case was heard upon pleadings and proofs, and a decree made in favor of the complainant, establishing his prior rights and equities in the stock, and decreeing a sale thereof for the satisfaction of the debts for which it had been pledged. Defendant Thoman alone appeals.

      Charles F. Hammond, for complainant.

      Stewart & Heck (Harris E. Thomas, of counsel), for appellant.
   Grant, C. J.

(after stating the facts). The sole question is: Does the transfer of shares in a corporation at an execution sale take precedence of a previous bona fide sale and transfer not entered on the books of the corporation? The authorities are in conflict. In 30 Am. Law Rev. 223 et seq., the decisions in the various States are collected. In that article the author argues forcibly for the execution creditor, and reaches the conclusion that the weight of authority supports that theory. He, however, says: “As a theory, this ground is opposed by most of the text-writers, including Cook, Morawetz, Lowell, and Pomeroy.” Counsel for the defendant have given us the benefit of an able and exhaustive examination of the decisions in the States where the question has arisen. We deem it unnecessary to discuss or to distinguish them. We think our own court has settled the question. Mandlebaum v. North American Mining Co., 4 Mich. 465; Newberry v. Detroit, etc., Manufacturing Co., 17 Mich. 141; McLean v. Charles Wright Medicine Co., 96 Mich. 479. In the Newberry Case it was held that a transfer of stock, though unrecorded, conveys the interest of the holder, and is valid, except as against persons having equities; and that a judgment creditor buying at an execution sale, with notice of the transfer, can get no better title than his debtor had. One Russell was the owner of the stock, as appeared by the books of the corporation, but had sold and transferred his shares to two other parties before Newberry’s levy was made. Chief Justice Cooley said: “The levy was entirely ineffectual.” Justice Campbell said: “No title passed under the execution sale, as Russell’s rights had been already divested.” In the Mandlebaum Case it was held that these certificates of stock are “not commercial paper, in the strict sense of the term, but that the holder is entitled to every right respecting them, as against third parties, which the law confers upon the holder of commercial paper.” In the McLean Case we cited with approval the Mandlebaum Case, and held that the transfer upon the books is not essential to the validity of the purchaser’s title. An execution creditor has no prior equities, nor are we able to see that he has any existing equities in consequence of his levy. He has parted with no interest or right, and is in no worse condition by the failure of the levy than he was before. If his debtor has no title, he can acquire none by a levy and sale, any more than he could by a levy and sale of land, the title to which, upon the record, stood in the debtor, but with which he had parted, or by a levy and sale of personal property in his possession, but to which he had no title. Cook, Stock, Stockh. & Corp. Law, §§ 486, 487; 1 Mor. Priv. Corp. §§ 193-195.

The decree is affirmed.

The other Justices concurred.


text:
    ROUGH v. BREITUNG.
    1. Foreign Corporations — Nonpayment of Franchise Fee.
    While the failure of a foreign corporation to pay the franchise fee required by Act No. 79, Pub. Acts 1893, renders void the contracts of such corporation made in this State, it does not affect the validity of its corporate existence..
    2. Contracts — Evidence.
    Where the offer stated in a letter, and the telegram accepting it, are clear and unmistakable in their terms, they constitute a contract, which cannot be varied by evidence of prior negotiations.
    3. Same — Construction—Foreign Corporations — Sale of Assets.
    Defendant wrote the president of a foreign mining corporation offering to take the mine operated by it, and all property belonging thereto, on terms stated, which included the assumption of the debts of the corporation, and the payment of a certain amount in mortgage bonds to its stockholders. The president accepted, and, with the secretary, assigned to de-fendant the mining lease owned by the company, and delivered over the corporate property. The stockholders retained their certificates, and made no tender of them to-defendant till the close of the trial of an action brought by them upon the contract. Held, not a contract by the stockholders to sell capital stock, but a corporate one for the sale of corporate property, and within the statute making void all contracts of a foreign corporation in this State which has not paid the franchise fee required.

    4. Corporations — Title to Property — Stockholders.
    Title to corporate property being in the corporation, the stockholders, whether they act separately or collectively, cannot sell, mortgage, or convey it.
    5. Same — Certificates of Stock — Negotiability.
    Certificates of stock, in the absence of statute to the contrary, stand upon the same basis as commercial paper, and innocent purchasers and pledgees take title by assignment and delivery.
    6. Same — Joint Act of Stockholders — Evasion of Law.
    The joint act or contract of the stockholders of a corporation, performed or entered into for the purpose of evading a law preventing the corporation from itself doing the act or making the contract, is likewise invalid.
    Error to Marquette; Stone, J.
    Submitted February 5, 1898.
    Decided May 17, 1898.

      Assumpsit by James H. Rough and others against Edward N. Breitung upon a contract of sale. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    The contract upon which this suit is based is evidenced by the following writings:
    “Chicago, December 19, 1895.
    “Mr. James Rough, Mining Inspector,
    “Negaunee, Michigan.
    “Dear Sir: The parties I have will take the Davis Mine, and all the property, machinery, etc., belonging thereto, on the following terms: We will pay all the debts of the mining company as reported to me per statement of the secretary, Mr. Nightengale, and also those incidental debts that you mentioned in our conversation on my last trip to Negaunee, and give stockholders of Davis Mine, as it now stands, $3,000 in first-mortgage bonds, to be secured on all property of the Davis and Milwaukee Mines, said bonds to be made payable on or before six years from January 1, 1896, at 5 per cent, per annum. If you can accept these terms, let me know at once, so I can obtain coal and make necessary improvements. Telegraph me at once on receipt of this at Hotel Richelieu, so that I may know just what to do.
    “Yours very truly,
    “E. N. Breitung.”
    Telegram:
    “December 20, 1895.
    “E. N. Breitung,
    “Care Hotel Richelieu, Chicago, Ills.:
    “ Letter received; will accept terms as stated in letter.
    “James H. Rough.”

      Telegram:
    “Chicago, III., 12 — 20—95.
    “To James H. Rough,
    “Mine Inspector
    “ Have your telegram of the 20th. Will wire Rothwell to take charge of Davis. Send all the books and papers of the Davis Mine to my office at Marquette.
    “E. N. Breitung.”
    On December 20th, Rough and Nightengale delivered to Mr. Breitung, at Marquette, the journal, time-book, ledger, contract-book, record of unpaid bills, the seal, stock-certificate book, containing the stubs of .outstanding certificates, and the certificates which had been transferred by the company, canceled, and surrendered. On the same day the mining lease owned by the Davis Mining Company was assigned to Mr. Breitung in the following language :
    “For a valuable consideration, the within lease is assigned and transferred to E. N. Bi-eitung, with all the rights and interests thereto pertaining of the Davis Mining Company.
    “In witness whereof the Davis Mining Company has-hereto affixed its corporate seal and signed its name by its president and secretary.
    “James H. Rough, Pres.
    “F. E. Nightengale, Secy.”
    Breitung went into actual possession of the mine, and sent a check to the city treasurer for the payment of taxes, signing it “Davis Mining Company, E. N. Breitung, Secretary and Treasurer.” On December 28th defendant wrote the cashier of the First National Bank: “Personally I do not assume anj^ of the liabilities of the Davis Mine, but the Davis Mining Company, as it now stands, assumes them. Their address will be Marquette.” He also did other acts as secretary and treasurer of the said company. He had not been chosen as such, but assumed to act by virtue of the transfer to him. He continued in the actual possession of the mine until January 31, 1896, when he wrote, through his attorney, the following letter to the Davis Mining Company:

      “You will please take notice that I hereby rescind and refuse in any manner to be bound by an alleged agreement to purchase, on behalf of myself and others, the Davis Mine, for the reason that the said alleged agreement is entirely void for many reasons, and, among others, for the following: (1) Because the principal thing proposed to be sold was real estate, and the stockholders of the said company had not, nor have they yet, authorized or ratified the said agreement or the purported transfer of the real estate of said company, and therefore said agreement and purported transfer are absolutely void. (2) Because the said Davis Mining Company is a corporation organized under the laws of the State of Illinois, and has not filed or recorded its articles of association under the laws of this State, and been thereby authorized to do business therein, nor has it paid to the secretary of state a franchise fee of one-half of one mill upon each dollar of the authorized capital stock of such corporation, and therefore its contract is wholly void. You ai’e further notified that the attachment suits commenced by the Negaunee Iron Company, Mary Kaufman, and myself against the said Davis Mining Company have been discontinued, and the sheriff is no longer in possession of any property of the said mining company. You are also notified that I am no longer in possession of the said mine, nor of any property connected therewith. I have already tendered you all the books, papers, and evidences of title of the said mining company, and I hold the same subject to your order, only because you have refused to accept the same, and I will at any time deliver the same to you, or send them to you, on your request. I have directed Mr. Matthews to Iceep the water out of the mine for one week from the date hereof, unless you shall sooner take possession of the property. I do this entirely for your accommodation.
    “Edward N. Breitung,
    “ By Scott W. Shaull, His Attorney in Fact.”
    The Davis Mining Company was a foreign corporation, organized in Illinois on July 11, 1893. Its capital stock was $500,000, of which only $13,803 had been paid in. It was in debt about $20,000. Plaintiffs were the owners of the entire capital stock, and had been since 1893. Mr. Rough was president and Mr. Nightengale secretary. They had always done their business as a corporation. Plaintiffs did not assign and transfer or tender to defendant the stock which they held until at the close of the trial, when they produced the certificates and offered to transfer them to defendant. The property of the Davis Mining Company consisted of a lease, executed by the fee owners to it, of whom Mr. Breitung was one, of the land on which the mine was situated, and the usual machinery, tools, etc., which constitute a mining plant. In 1893 the legislature passed an act requiring foreign corporations doing business in this State to pay a franchise fee, and provided: “All contracts made in this State after the first day of January, 1894, by any corporation which has not first complied with the provisions of this act, shall be wholly void.” Act No. 79, Pub. Acts 1893. This fee had never been paid by the company.
    When the plaintiffs had rested their case, the court directed a verdict for the defendant, because under the first count of the declaration, and under the undisputed evidence, plaintiffs were simply stockholders of the corporation, and, although owning all the capital- stock, they were not owners of its property, which belonged to the corporation, and that as stockholders they did not possess the right or title to the property so that they could convey it. The court also held that there could be no recovery under the second count, because the evidence was undisputed that there was no sale of the capital stock, the Davis Mining Company was a necessary party to the litigation involving the sale of its property, and the corporation had never paid the franchise fee.

      F. A. Bell (Hayden & Young, of counsel), for appellants.

      S. W. Shaull (Arch B. Eldredge and W. A. Lantz, of counsel), for appellee.

       The validity of contracts made by foreign corporations which have not complied with statutory conditions of the right to do business in a State is considered, and the different theories discussed, with a review of the authorities, in a note to Edison General Electric Co. v. Canadian Pacific Navigation Co., (Wash.) 24 L. R. A. 315.

   Grant, C. J.

{after stating the facts). The learned counsel for the plaintiffs state their claims under the two counts of the declaration, as follows:

“ The first count is based upon the theory that the Davis Mining Company was not a legally organized corporation, and was designed to permit recovery by plaintiffs in case it should be found there was no such legally authorized incorporation, but only an association of individuals (themselves) under a corporate name. The second count is based upon the theory that the Davis Mining Company was a corporation, at least de facto, all the capital stock of which was owned' by the four plaintiffs. Under each count the bargain claimed to have been made and carried •out by actual delivery (the second count including the capital stock) was the same. ”

There is nothing in the record to sustain the theory that the Davis Mining Company was not a legally organized corporation, or that plaintiffs were doing business as tenants, partners, or in any other capacity than that of corpora-tors. They had only the powers and rights of stockholders. The company was duly incorporated, and had a president, secretary and treasurer, and board of directors. It carried on its entire business and kept its books and records as a corporation. It was not only a de facto, but a de jure, corporation. The act of the legislature above referred to recognizes such a corporation as valid, and only declares its contracts void when made in this State before it has complied with the provisions of the law; The court below was therefore right in holding that there could be no recovery under the first count.

Under the second count, it becomes necessary to. determine what the contract was and with whom it was made. The offer stated in the letter of December 19th, and the telegram accepting it, constitute the contract. Its terms are clear and unmistakable. All prior conversations and negotiations, whether written or verbal, cannot be invoked to change the letter of the contract. The defendant offered to buy “the Davis Mine, and all the property, machinery, etc., belonging thereto.” It was not an offer to buy the stock of the individual stockholders. This is further made clear by the proposed terms of payment, to wit, to pay all the debts of the mining company and $3,000 to the stockholders. It meant a purchase of the franchise of the corporation, with all its rights and property. The letter was written to the president of the company. There is nothing in the record to indicate that the parties understood that the one was selling and the other was buying the stock of the plaintiffs. Their conduct at the time and subsequently clearly shows that they understood that they were acting in a corporate capacity, and not as individual stockholders. They retained their certificates of stock. They had previously attempted to sell defendant 13,000 shares of it, but he refused to purchase. They made no tender of the certificates until the close of the trial.

The original declaration was filed March 26, 1896, and was upon the common counts alone. Nothing .further appears to have been done in the case until July 6, 1896, when plaintiffs filed an amended declaration containing a special count setting forth that they were the owners of the property, and describing it, and that they had sold it to the defendant for $26,000. To this amended declaration the defendant pleaded the general issue. Subsequently, by the permission of the court, he filed an amended plea, giving the special matters in defense as stated in his letter of January 31, 1896. Plaintiffs, by leave of the court, on March 20, 1897, filed a second amended declaration, in which for the first time they alleged a sale of the stock.

There was no corporate action taken by the stockholders or by the directors authorizing the transaction. The assignment of the lease was made by the president and secretary in behalf of the corporation, and on the face of it was a corporate act. Stockholders do not own the corporate property, and cannot mortgage, sell, or convey it. The title is in the artificial being called the corporation, not in the stockholders. Such property is not under the control of its stockholders, whether they act separately or collectively. The laws under which these corporations are organized provide the agencies and methods by which their property can be sold and transferred. Randall v. Dudley, 111 Mich. 437; Humphreys v. McKissock, 140 U. S. 304; Fitzgerald v. Railway Co., 45 Fed. 812; England v. Dearborn, 141 Mass. 590; Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131); Baldwin v. Canfield, 26 Minn. 43; Gashwiler v. Willis, 33 Cal. 11 (91 Am. Dec. 607). In Smith v. Hurd, 12 Metc. (Mass.) 371 (46 Am. Dec. 690), Chief Justice Shaw said:

“The individual members of a corporation, whether they should all join, or each act severally, have no right or power to intermeddle with the property or concerns of the bank, or call any officer, agent, or servant to account, or discharge them from any liability.. Should all the stockholders join in a power of attorney to any one, he could not take possession of any real or personal estate, any security or chose in action; could not collect a debt, or discharge a claim, or release damage arising from any default; simply because they are not the legal owners of the property, and damage done to such property is not an injury to them. Their rights and their powers are limited and well defined.”

In Button v. Hoffman the court say:

“These general principles sufficiently establish the doctrine that the owner of all the capital stock of a corporation does not, therefore, own its property, or any of it, and does not himself become the corporation, as a natural person, to own its property and do its business in his own name. While the corporation exists he is a mere stockholder of it, and nothing else.”

The artificial being known as the Davis Mining Company was still in existence after the alleged sale and transfer to defendant. The transfer of the stock-book to him, either individually or as secretary of the company, did-not operate to cancel the stock standing in the names of these plaintiffs. They might have sold the stock to an innocent purchaser, who would take a good title. Such certificates, in the absence of some provision of law to the contrary, stand upon the same basis as commercial paper, and innocent purchasers and pledgees take title by assignment and delivery. McLean v. Charles Wright Medicine Co., 96 Mich. 479, and authorities there cited.

We are forced to the conclusion from this record that this was a corporate contract, and void under the law above cited. While the corporation might be estopped to plead such a contract in its defense, it cannot maintain an action upon it without annulling the law. Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430, 55 Am. St Rep. 457); People’s Mut. Ben. Society v. Lester, 105 Mich. 716; People v. Hawkins, 106 Mich. 482.

If, however, all the stockholders of the corporation could by unanimous action contract, instead of the corporation, acting through its properly authorized officers, it would not aid the plaintiffs. What such a corporation could not do in its corporate capacity all its stockholders acting together could not do for it. If the act or contract of the corporation is void under the law, so, also, is the joint act or contract of all the stockholders, designed to accomplish the same purpose, and thus evade the law.

The judgment is affirmed.

The other Justices concurred.


text:
    HUSTED v. WILLOUGHBY.
    1. Declaration — Land Descriptions.
    Where one section only in a certain township contains land in a given subdivision lying north of a certain county drain, a declaration which describes the land as being all that part of said subdivision lying north of such drain is sufficiently definite without specifying the section.
    2. Same — Boundaries—Acquiescence.
    A declaration which lays a trespass with reference to an eighth section line as established by agreement and acquiescence on the part of the adjoining proprietors is not open to objection because such line is not coincident with that run by the government surveyor.

      Error to Eaton; Smith, J.
    Submitted April 6, 1898.
    Decided May 17, 1898.
    Trespass guare clausum fregit by Henry Husted against Samuel Willoughby. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Powers & Stine, for appellant.

      Fred J. Slayton and Huggett & Smith, for appellee.
   Moore, J.

This is an action of trespass brought in justice’s court for the removal of what was claimed to be the line fence between the lands of the parties. The defendant pleaded the general issue, and gave notice of title. The case was certified to the circuit court by the magistrate, where a trial resulted in a verdict in favor of plaintiff for $13.30. The material part ot the declaration is as follows:

“For that the defendant on, to wit, the 20th day of April, A. D. 1895, with force and arms, the close of the said plaintiff, situate in the township of Hamlin, in said county, and known and described as being all that part of S. W. of the N. W. fractional lying north of county drain known as ‘Sidewell and Relaid Mills Drain,’ broke and entered.”

It was admitted that defendant was the owner of land in the same township, but it is now said that the declaration is not specific enough to entitle plaintiff to recover, as it omits all reference to any section. The land Owned by the parties to the litigation was on section 6. If the declaration had made ho reference to the county drain known as “Sidewell and Relaid Mills Drain,” it is probable the objection would have been well taken. The record discloses, and the jury found as a matter of fact, that there are no other lands on the southwest quarter of the northwest fractional quarter in the township of Hamlin lying north of this county'drain except on section 6. A drain of the permanence and character of this county drain is a known boundary or monument (Kinnie v. Bare, 68 Mich. 635), and we think the description in the declaration was specific and sufficient.

The jury found that the grantors to the parties to this suit in good faith employed a surveyor to determine the boundary line between the lands now owned by the plaintiff and defendant, and that the line thus established was regarded- by the grantors and by the subsequent purchasers and owners as the boundary line until the purchase by Mr. Willoughby, and that it was acquiesced in for more than 15 years before the alleged trespass, and that the wire fence which was destroyed was built on the line established by the survey for the parties who procured the survey to be made. The jury found on the part of the defendant that the wire fence was from one to three rods north of the eighth line according to the government survey, and it is insisted by the defendant that the alleged trespass did not occur upon the land described in plaintiff^ declaration, but occurred north of that line, and that plaintiff cannot recover. In Diehl v. Zanger, 39 Mich. 606, it was said: “The long, practical acquiescence of the parties concerned in supposed boundary lines should be regarded as such an agreement upon them as to be conclusive, even if originally located erroneously.” See Smith v. Hamilton, 20 Mich. 433 (4 Am. Rep. 398); Joyce v. Williams, 26 Mich. 332; Stewart v. Carleton, 31 Mich. 270; Dupont v. Starring, 42 Mich. 492; Burns v. Martin, 45 Mich. 22; Jones v. Pashby 67 Mich. 459 (11 Am. St. Rep. 589). If, then, the agreement as to what should be regarded as the true line between these two descriptions, which was made when the surveyor was employed, is conclusive, it would logically follow that the line so established was the south line of the northwest quarter of the northwest quarter, and the north line of the southwest quarter of the northwest quarter.

We think it unnecessary to discuss the other assignments of error. Judgment is affirmed.

The other Justices concurred.


text:
    MORGAN v. JONES.
    1. Bail — Surrender—Procedure.
    Under 2 How. Stat. § 7338, providing that, in proceedings by the special bail of any defendant to effect his surrender in exoneration of his bail, two “copies of the bail piece” shall be produced before the officer authorized to accept the same, the production of papers, sworn by one of the signers of the bail bond to be true copies of the bail piece delivered to him, though not certified as copies by the clerk, is a sufficient compliance
    2. Same — Commitment—Evidence.
    In proceedings for the surrender of defendant in exoneration of his bail, the commissioner indorsed an order of commitment on one copy of the bail piece, and the sheriff certified on the other copy that he had defendant in custody by virtue of a commitment of him in exoneration of his bail, and acknowledged it before the commissioner who issued the order. Held, that the sheriff’s certificate sufficiently showed that defendant was in custody by virtue of a commitment made by the officer before whom he was brought for the purpose of surrender.
    3. Same — Discharge—Accrued Costs.
    Where plaintiff, though notified of the surrender of defendant by his special bail, makes no objection to an order discharging the latter from liability because they have not paid the accrued costs, and fails to call the attention of either the court or the bail to the matter of costs until the trial of an action upon the bond, he cannot claim that the nonpayment of accrued costs rendered the proceedings for the surrender void; and a judgment sustaining the validity of the proceedings, but directing the bail to pay such costs, is sufficiently favorable to him.
    Error to Clinton; Daboll, J.
    Submitted April 7, 1898.
    Decided May 17, 1898.

      Assumpsit by William W. Morgan against Hiram F. Jones and Henry H. Jenison on a special bail bond. From a judgment for defendants on verdict directed by tbe court, plaintiff brings error.
    Affirmed.

      Edivin H. Lyon, for appellant.

      William B. Clark and Spaulding & Norton, for appellees.
   Moore, J.

Plaintiff sued George Minkler by capias. Defendants became special bail therein. Plaintiff recovered judgment against Minkler of $4,000 and costs. Execution was issued, and returned nulla bona. A ca. sa. was then issued, and returned unsatisfied, for the reason that Minkler could not be found within the county. This action was then commenced upon the bail bond by declaration filed February 27,1897, and served on both defendants on March 18th. Defendants pleaded the general issue, and gave notice that defendants had surrendered Minkler in exoneration of his bail on March 24,1897, and were discharged from their liability as bail on March 30, 1897, by Lewis Severence, a commissioner of said court. In support of their contention, they offered and the court received in evidence, against plaintiff’s objection, the proceedings taken in reference to such surrender and discharge, and the court directed a verdict for defendants. Plaintiff appeals.

Six days after the declaration was served upon the defendants, they appeared before one of the circuit court-commissioners with Mr. Minkler and the sheriff, with two copies of the bail piece, each of which was sworn by Mr. Jenison to be a true copy of the original bail piece delivered to him upon his signing the bail bond. The original bail piece was in the form given in the statute. Upon one of these copies the following indorsement was made:

“Let the defendant in this cause be committed to the custody of the sheriff of the county of Clinton in exoneration of his bail at the suit of the plaintiff in the plea within mentioned.
“Dated March 24, 1897.
“Lewis Severenoe,
“Circuit Court Commissioner for Clinton County.”

The sheriff took Mr. Minkler into custody. On the other copy of the bail piece the following entries were made:

“I hereby certify that George Minkler, the above-named defendant, has been committed to and remains in my custody by virtue of a committitur of him in exoneration of his bail at the suit of the plaintiff in the plea within mentioned.
[Signed] “Alonzo E. Dunn,
“Sheriff of Clinton County.”
“State oe Michigan, ) County of Clinton, j
“On this 24th day of March, 1897, before me, the subscriber, a circuit court commissioner in and for said county, personally appeared Alonzo E. Dunn, to me known to be the sheriff of said county and the person whose name is attached to and who made the above certificate, and who acknowledged the same to be true.
[Signed] “Lewis Severence,
“Circuit Court Commissioner for Clinton County.”

And the circuit court commissioner made the following order:

‘ ‘ In the Circuit Court for the County of Clinton.
“William W. Morgan v. George Minkler.
“Due proof having been made before me that the defendant in this cause has been committed to, and remains in the custody of, the sheriff of the county of Clinton, let the plaintiff show cause before me, at my office in the village of St. Johns, in said county of Clinton, on the 30th day of March, 1897, at 9 o’clock in the forenoon, why the bail of the said defendant should not be exonerated from their liabilities.
Dated this 24th day of March, 1897.
“Lewis Severence,
“Circuit Court Commissioner in and for Said County of Clinton.”

A copy of this order was served upon one of the attorneys for the plaintiff March 25th, at his office. The copy was signed in typewriting. Neither the plaintiff nor his attorney appeared before the commissioner at the hearing, and the commissioner made the following order:

“The Circuit Court for the County of Clinton.
“William W. Morgan v. George Minkler.
“The defendant having been, on his own prayer, and by his bail, and in exoneration of his bail, committed to the custody of the sheriff of the county of Clinton at the suit of the plaintiff in the plea within mentioned, and the said sheriff having certified that the said defendant remained in his custody by virtue of such order of commitment, which certificate was duly acknowledged by the said sheriff, an order was thereupon granted that the plaintiff show cause before me at chambers why the bail of the said defendant should not be exonerated from their liabilities; and the plaintiff not having appeared, and proof of the due service of such order on the said plaintiff’s attorneys being produced to me, I do hereby declare that the bail of the said defendant are discharged from all liability as such bail, in the suit in which the within-mentioned bail piece was taken.
“Dated the 30th day of March, 1897.
[Signed] “Lewis Severence,
“Circuit Court Commissioner in and for the County of Clinton.”

It is now said these papers ought not to be received in evidence, because the copies of the bail piece, produced before the commissioner, were not certified by the clerk to be copies/and therefore the commissioner got no jurisdiction to act. The proceedings were under 2 How. Stat. § 7338. This section provides that there shall be produced to the officer authorized to accept the surrender two copies of the bail piece. The statute does not require them to be certified copies, and we think the copies produced, sworn by one of the signers of the bail bond to be true copies of the original, were a sufficient compliance with the statute.

It is said that the certificate made by the sheriff does not show that Minkler was in the sheriff’s custody by virtue of a committitur of him in exoneration of his bail, made by the commissioner before whom he was brought for the purpose of surrender. "When we take into account the papers upon which this certificate was written, the order of commitment made by the commissioner, and the sheriff’s acknowledgment of his certificate made before the commissioner, we are led to say the objection is not well taken.

We have considered the other objections to the reception of these papers in evidence, but we do not think it necessary to discuss them.

The plaintiff paid no attention to the proceedings before the commissioner, but noticed the case for hearing. No costs had been paid by defendants. When the proofs were all in, the trial court inquired how much plaintiff’s costs were when defendants’ plea was filed. It was agreed that they amounted to $14. The court directed the defendants to pay this amount forthwith, which was done, and the court directed a verdict in favor of defendants. This is said to be error. Plaintiff claims that because defendants, when they undertook to surrender Mr. Minkler, did not pay the costs incurred by plaintiff to that date, the proceedings were a nullity; citing Mayell v. Follett, 7 Wend. 507; Bank of Geneva v. Reynolds, 20 How. Prac. 18; Cozine v. Walter, 55 N. Y. 304. None of these cases disposes of the question involved here. The case of Mayell v. Follett was one where plaintiff took judgment against the bail before the time had expired in which he might surrender his principal, and the court stayed the proceedings, and said that the bail might surrender the principal, and that on his doing so, and paying the costs of suit, the judgment and execution would be set aside. In Cozine v. Walter the defendant was a sheriff, who was sued by the bail for a false return. He •sought to justify upon the ground that the bail had not paid him his fees when the principal was surrendered. It was held that he could not do so, under the facts of that case. In Bank of Geneva v. Reynolds the bail applied, some months after the time had expired in which they could surrender their principal, for leave to do so. It will be seen that this was an appeal to the favor of the court, and it was held that, under the showing made, the bail should be allowed to surrender the principal on payment of the costs of the action, unless it was shown that they had been indemnified by the principal. In 2 Burrill, Prac. 230, it is said:

“If a suit should have been commenced on the recognizance, notice of the surrender having been made should be given to the plaintiff or his attorney, which will operate as a stay of proceedings, provided the render' be made within the time allowed for that purpose by the statute; otherwise, the plaintiff may treat it as a nullity. If the plaintiff proceed in the action after notice of the render, because no tender was made to him of the costs already incurred, nor any rule obtained to stay the proceedings, the subsequent proceedings will be irregular, the statute of itself operating as a stay of proceedings. 3 East, 306.”

The plaintiff, though notified of the proceedings before the commissioner, did not appear before him; and no objection was made to the order made by the commissioner upon the ground that the costs had not been paid, nor was the attention of the circuit court called to this fact before the trial began. There is nothing to indicate that plaintiff made any suggestion to the defendants about the costs, or that the defendants had any knowledge of the amount thereof until it was stated in court. The statute providing for the surrender of the principal is silent in relation to the question of costs'. 2 How. Stat. § 7338, subd. 4.

We think the trial judge made a proper disposition of the case.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

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    JEWELL v. WELCH.

    Civil-Damage Aot — Separate Torts — Release.
    While persons who contribute by sales of liquor to an intoxication are, under the statute (3 How. Stat. § 2283e3), jointly and severally liable for injuries resulting therefrom, a settlement with one liquor seller for intoxication induced during a certain period does not preclude a recovery from another seller for intoxication induced during the same period, where the sales were separate and distinct, each producing intoxication to which the other in no way contributed.
    Error to Ionia; Davis, J.
    Submitted April 8, 1898.
    Decided May 17, 1898.
    Case by George E. Jewell against Patrick Welch, a saloon keeper, and Herbert Babcock and Andrew Haberstumpf, his bondsmen, under the civil-damage act. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      McGarry & Nichols, for appellant.

      Chaddock & Scully, for appellees.

      Rehearing denied June 28, 1898.

   Montgomery, J.

This action is brought against the defendant Welch and his bondsmen to recover damages for selling liquor to the plaintiff’s minor son, Glenn Jewell. The declaration counts on sales on the 7th of January, 1896, on the 1st of July, 1895, and on divers other days and dates, too numerous to mention, since May 1, 1895. The defense showed on the trial that the plaintiff had previously brought an action against one Andrew Flegler and his bondsmen, counting on sales of liquor to his son on the 1st of‘May, 1895, on the 7th of January, 1896, and on divers other days and dates; and further showed that, after this action was brought, a settlement was made between plaintiff and Flegler, Flegler paying plaintiff a sum of money in satisfaction of the injuries sustained. These facts were all conceded, but plaintiff’s counsel stated that he proposed to show that at one date alleged in the present declaration, and at other dates, the plaintiff’s minor son became intoxicated in the saloon of Patrick Welch, and that such intoxication was distinct and separate from any intoxication induced by liquors received from Mr. Flegler, or any one else. The circuit judge, being of the opinion that the settlement with Flegler was a bar to the plaintiff’s action, directed a verdict for the defendants.

It is the general - rule that a release to one of several joint tort feasors discharges all. Under the statute (section 2283e3, 3 How. Stat.) the parties who contribute by sales of intoxicating liquors to an intoxication are jointly and severally liable (Franklin v. Frey, 106 Mich. 76; Johnson v. Johnson, 100 Mich. 326); but this court has never held that, where the acts are separate and distinct, one having no connection with the other, the parties can be held jointly liable. The furthest that the court has gone in this direction was in the case of Johnson v. Johnson, supra, where the plaintiff’s husband commenced a protracted debauch on the 23d or 24th of July, and his spree lasted until August 9th, and it was held that it was competent for the court to award damages against all those whose sales contributed to this continuous intoxication. But under the proposition stated by plaintiff’s counsel to show separate and distinct sales by the defendant, producing intoxication, to which intoxication Flegler in no way contributed, the plaintiff is entitled to recover, unless it is conclusive that the matter settled with Flegler was that which was set out in the declaration. It is to be bornp in mind that the defendants were not parties to the Flegler suit, and are in no way concerned in the pleadings, except that, as the law does not permit two satisfactions for the same wrong, defendants are entitled to set up' this satisfaction if it in fact covers the same cause of action for which defendants are sued, and to the extent to which the causes of action are identical it is a complete defense. But it is held that, if the causes of action in two distinct suits brought against different defendants are in fact distinct, although the declarations are identical in form, the acceptance by the plaintiff of a sum of money in satisfaction and discharge of the cause of action in one suit will be no defense in the other. Miller v. Patterson, 31 Ohio St. 419; Jewett v. Wanshura, 43 Iowa, 574. If the plaintiff had shown the facts claimed to exist, he would have shown that, as to the particular sales named, the parties were not joint tort feasors. Defendants’ counsel rely on Aldrich v. Parnell, 147 Mass. 409. The rule in that case is not inconsistent with the views here expressed. To show the precise point decided in that case, we quote from the statement of the court:

“The instructions to the jury assumed that the defendant and Gabb and the proprietor of the Mansion House might all have contributed to the intoxication, for which-damages might be assessed, and it was ruled that a settlement with one of them would not operate as a release to this defendant, nor bar the present action.”

The supreme court disapproved this instruction, and held that the statute did not authorize the plaintiff to multiply her damages; that, whenever she has received satisfaction for damages sustained by her, her right to recover is gone. So in this case, to the extent that the plaintiff has received satisfaction, his right to recover is gone; but, if the plaintiff is able to show distinct transactions with which Flegler had no connection, and out of which a liability arose to plaintiff, he would be entitled to recover.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

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    MILLER v. LACHMAN.

    1. Appeal — Remarks oe Counsel — Review.
    Remarks of counsel, alleged to have been prejudicial, cannot be considered on appeal, where they were not excepted to and ruled on at the trial.
    2. Witnesses — Husband and Wipe — Adultery.
    In an action for the alienation of a wife’s affections, in which adultery was charged, plaintiff was permitted, under objection, to testify, but all of his testimony was finally stricken out, and the jury instructed to disregard it. The testimony given by him had no bearing on the charge of adultery, nor did it ‘ relate to any conversation between himself and his wife; and it was fully sustained by other witnesses. Held, that defendant was not prejudiced.
    Error to Ottawa; Padgham, J.
    Submitted April 8, 1898.
    Decided May 17, 1898.
    Case by Grant E. Miller against Henry Lachman for alienating the affections of plaintiff’s wife. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      George A. Farr (Turner & Turner, of counsel), for appellant.

      J. H. Tatem, for appellee.

       Rehearing denied October 18, 1898.

   Long, J.

This action is brought to recover damages which the plaintiff claims to have sustained by the wrongful and willful conduct of the defendant in alienating the affections of plaintiff’s wife, breaking up and destroying his home; for aiding, counseling, and assisting plaintiff’s wife in procuring a divorce; and for having debauched and carnally known her.

It appears that in July, 1895, the plaintiff and his faipüy, consisting of his wife and three daughters, the eldest of whom was then nine years of age, were living in the village of Lisbon, Ottawa county. The defendant lived on a farm about one mile west from there. The two families were acquainted, and occasionally visited each other. In July the plaintiff went west to find work; leaving his family in Lisbon, provided with all the necessaries of life. He was gone about 11 months. It is claimed that during that time the defendant visited plaintiff’s wife at her home almost daily and nightly, and that he completely alienated the wife’s affections, and had carnal knowledge of her person. After plaintiff’s return, his wife commenced proceedings for divorce, and for the custody of the children. Plaintiff answered the bill, and in his answer prayed the custody of the children. On the hearing of that case, the court granted the custody of the children as prayed in the answer and cross-bill. After the conclusion of the divorce proceedings, this action was brought.

The adultery is alleged to have been committed on or about September 20, 1895; also, on the 27th, 28th, and 29th days of April, 1896, and on divers other days and times between September 20j 1895, and the commencement of this suit. It appeared by the testimony on the part of the plaintiff that defendant and plaintiff’s wife were often together; that defendant was seen frequently visiting her house at different times of night. It was shown that at one time these parties left their homes at Lisbon, together, about 4 o’clock in the morning, and did not return until the evening of the third day, during which time they were in the city of Grand Rapids, and attended a public dance. Other testimony was given which had a tendency to show the close relations of these parties. Several of the neighbors were called, who testified to the defendant’s constant visits to the house, and remaining late at night.

The court charged the jury, at the request of counsel for defendant, as follows:

“First. Before the jury in this cause can return any verdict in favor of the plaintiff, they must first find, by a preponderance of evidence, that the defendant did actually, and at the time or times set up in the declaration in this cause, have criminal intercourse, and committed adultery, with Louisa Miller, wife of said plaintiff in this cause. * * *
“Seventh. The charge in this case is criminal conversation, which consists in carnally knowing and committing adultery with plaintiff’s wife; and the loss of comfort, society, and assistance of the wife are charged, as a result of the adultery; and, unless you find from the evidence that the defendant did commit adultery with plaintiff’s wife, then your verdict shall be, ‘No cause of action.’
Eighth. The charge in this case is adultery alleged to have been committed by the defendant with the wife of said plaintiff between the 20th day of September, 1895, and the time of granting the decree of divorce in evidence in this cause. The burden of proving the charge of adultery is upon the plaintiff, and this he must establish by competent evidence. It cannot rest upon mere suspicion, but it must be proved by such a preponderance of evidence as convinces you of its truth. Where the burden of proof consists of circumstances only, to establish this fact it is necessary to show (1) an adulterous disposition on the part of the defendant; (2) an adulterous disposition on the part of the plaintiff’s wife; and (3) opportunity for the commission of the offense of adultery.”

The jury returned a verdict in favor of plaintiff for $2,000. Defendant brings error.

Several assignments relate to claimed errors in the opening to the jury by counsel for plaintiff. It is not necessary to set out here the remarks complained of, as no exceptions thereto were taken on the trial, and, so far as appears by this record, no objection was then made. It has been several times held by this court that, when the course of counsel in addressing the jury has not been excepted to and ruled on, this court cannot review it, even though recited in the bill of exceptions. Maclean v. Scripps, 52 Mich. 214; Hart Manfg. Co. v. Mann’s Boudoir-Car Co., 65 Mich. 564.

Error is assigned upon the ruling of the court in permitting the plaintiff to give testimony in the case. This question need not be discussed, as it appears by the record that, while the plaintiff was permitted to give some testimony, the court thereafter, upon motion, struck the testimony from the record, and instructed the jury not to consider it. It is contended, however, by counsel for defendant, that the admission of this testimony was error, and, though stricken out, the effect of it upon the jury was prejudicial to the defendant. The plaintiff was not asked by his counsel, nor did they attempt to show by him, any fact or circumstance bearing upon the question of the adultery between his wife and the defendant; nor was he asked to state any conversation between himself and his wife. What testimony was given by him was fully sustained by other witnesses. We think the defendant’s case was not prejudiced by this testimony, in view of the fact that the court instructed the jury that they should not consider it.

It is contended that there was error “in plaintiff’s seeking to show, and parading before the jury as a fact, that there was common and notorious neighborhood talk of defendant’s relations with plaintiff’s wife.” The record does not bear out this claim. We find no evidence in the record as to the neighborhood talk about this matter. Plaintiff’s counsel sought to show what the talk was, and the court ruled against them.

It is contended that the court was in error in refusing to give certain requests of the defendant in charge to the jury. We have examined the general charge, and think that it covers the requests made by defendant, so far as he was entitled to them. • It would profit no one to set out here the requests, and the charge as given.

We find no error in the case. The judgment must be affirmed.

The other Justices concurred.


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    WALKER v. FISHER.
    Landlord and Tenant — Attornment—Summary Proceedings— Defenses — Invalid Foreclosure.
    A tenant who, after the foreclosure of a first mortgage on the premises occupied by him, attorned to the purchaser, may show in defense, in summary proceedings by such purchaser to recover possession for nonpayment of rent, that, after attornment, he was notified of the invalidity of the foreclosure as toa second mortgage, the assignee of which was not made a party notwithstanding the assignment was of record when the foreclosure suit was commenced, and of the fact that the second mortgage had been regularly foreclosed.
    Error to Wayne; Donovan, J.
    Submitted April 19, 1898.
    Decided May 17, 1898.
    Summary proceedings by Bryant Walker, administrator de bonis non with the will annexed of the estate of Corydon L. Ford, deceased, against Truman S. Fisher, to recover the possession of land. The commissioner found for complainant, and from a judgment of the circuit court, affirming the decision, defendant brings error.
    Reversed.

      E. S. Clarkson, for appellant.

      H. E. Spalding, for appellee.
   Long, J.

This action was commenced before a circuit court commissioner, to recover possession of certain premises in the city of Detroit. It appears that in 1887 the premises were owned by Edwin W. Abbott. He and his wife ■ gave a mortgage thereon, which was afterwards foreclosed in chancery, and the property sold under the decree to the claimant. This sale became absolute August 29, 1897, and the claimant then received a deed as purchaser. He found the defendant in possession of the property, and made a demand that he pay rent to him for the month of October, and showed him his foreclosure deed. Defendant paid the rent for that month, and agreed to remain in possession thereafter as claimant’s tenant. About November 1st, when the second month’s rent became due, claimant called upon defendant for it, who refused'to pay it, and claimed that he had received a notice from one Mary Sherman that she was the owner of the premises, and entitled to the rent. Proceedings were then commenced by claimant to recover possession. The commissioner found in favor of claimant, and the defendant removed the cause to the circuit court for Wayne county by writ of certiorari, where the judgment of the commissioner was affirmed. Defendant brings the case to this court by writ of error.

It appears from the return of the commissioner to the circuit court that the claimant, in the foreclosure of this mortgage, made Edwin W. Abbott and his wife, Daniel B. Newkirk, William L. Newkirk, and Clara I. Sheldon parties defendant to the bill. Defendant put in evidence, under objection, a mortgage on the premises made by Clara I. Sheldon to Nancy Newkirk, dated September 24, 1894, and recorded on the same day in the office of the register of deeds of Wayne county. He also gave evidence that this mortgage was assigned to Joachim Theeck, and that assignment duly recorded, June 26, 1896. A sheriff’s deed on foreclosure of this mortgage was also put in evidence, running to Charles C. Stewart, and having indorsed thereon the certificate of the sheriff that the year’s redemption would expire, and the deed become operative, October 27, 1897. Defendant also put in evidence a quitclaim deed from Charles C. Stewart to Mary Sherman, covering the premises, and recorded October 30, 1897. Upon this evidence being in, the commissioner returns that he found that—

“The defendant, on the 1st day of October, 1897, attorned to the claimant, recognized him as his landlord, and became a tenant of said premises under said claimant, from month' to month, at a rental of $16 per month,, payable in advance on the first of each month, and that the proceedings in foreclosure of said Abbott mortgage, and the deed thereunder, gave the claimant the-right to the possession of the premises.”

The commissioner further decided that the evidence of defendant above stated was inadmissible, and insufficient to make out a defense. The circuit court evidently held to the same view, and affirmed the judgment. It was. evidently the opinion of the commissioner that the defendant, having attorned to the claimant, was not in a position to dispute the landlord’s title, and that, therefore, the evidence given by defendant was hot admissible.

In this court it is contended by claimant that, though the defendant might be permitted to show that claimant’s title had expired, yet the evidence was not sufficient to-show such fact, and therefore the commissioner was right in his decision. Mary Sherman was not made a party to. the claimant’s foreclosure. She claimed the rents from the defendant. At the time of the foreclosure of claimant’s mortgage, the proceedings for which were apparently commenced as early as August, 1896, the deed to Mary Sherman was not of record. Her deed was not recorded until October 30, 1897. ' Up to that time there was nothing upon the record to advise the claimant that Mary Sherman claimed any interest in the property. She obtained her title through the foreclosure of the mortgage given by Clara I. Sheldon to Nancy Newkirk, September 24, 1894. Clara I. Sheldon was made a party defendant to the claimant’s foreclosure proceedings. Defendant testified that he originally rented the premises from Clara I. Sheldon, and paid rent to her up to the time he received notice from claimant that he must attorn to him. The record shows, however, that, before claimant’s foreclosure suit was commenced, the mortgage was assigned to Theeck, and his assignment was of record. Mr. Theeck was not made a party to the claimant’s proceedings to foreclose, and Mary Sherman claims title through that foreclosure. Under these circumstances, the foreclosure of the claimant’s mortgage was not effective to cut off Mrs. Sherman’s rights under the Sheldon mortgage, though Mrs. Sheldon was made a party. Mrs. Newkirk had parted with her interest in the mortgage before this foreclosure, and it then rested in Theeck, who was not made a party. It follows that Mrs. Sherman was in no way affected by this foreclosure, and that, when she became possessed of the property under her deed, she was entitled to the rents until her rights were cut off by proper foreclosure of claimant’s mortgage.

The defendant was entitled to show these facts in his defense; that is, he had the right to show that claimant’s title had been cut off as to Mrs. Sherman by the foreclosure of the Sheldon mortgage, and that the title then rested in Mrs. Sherman, and would so rest until a new foreclosure by claimant, in which Mrs. Sherman is made a party. Jenkinson v. Winans, 109 Mich. 524; McGuffie v. Carter, 42 Mich. 497. We think there was sufficient evidence before the commissioner to show this, and that he was in error in ruling that the evidence offered by the defendant was inadmissible.

The judgment of the circuit court and of the commissioner must be reversed, and a judgment entered here in favor of defendant, with costs of all the courts.

The other Justices concurred.


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    CITY OF DETROIT v. MACIER.
    1. Names — Idem Sonans,
    The names “Ellen Macier” and “Ellen Marcier” are idem sonans.

    2. Same — Taxation—Assessment.
    Where one's name is misspelled on a tax roll, and a name idem sonans employed, it will be presumed that he was the one intended to he assessed.
    Error to Wayne; Carpenter, J.
    Submitted April 19, 1898.
    Decided May 17, 1898.
    Debt by the city of Detroit against Ellen Macier to recover a tax. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gray & Gray, for appellant.

      Eli R. Sutton (C. D. Joslyn, of counsel), for appellee.
   Montgomery, J.

This action is brought to recover a. tax assessed in the year 1894 against Ellen Marcier. The defendant contested the case on two grounds: First, that she was not a resident of Detroit at the time of the assessment; and, second, that the assessment against Ellen Marcier cannot be held as an assessment against the defendant. The first question was determined in favor of the city by the jury. At the trial the circuit judge charged that the error in naming the defendant on the tax roll was not fatal. On a motion for a new trial the circuit judge held, in effect, that the assessment could only be sustained if the name in which the assessment was made was in law the name of the defendant, and also held that, under the rule of idem sonans, the names were identical. We think the holding of the court is supported by the following authorities: Boyce v. Danz, 29 Mich. 146; People v. Gosch, 82 Mich. 22; People v. Hildebrand, 71 Mich. 313.

It is urged that the court erred in not directing a verdict for the defendant, for the reason that there is no proof that the defendant was the person intended by the assessing officer. The answer to this is that, if the name used is in law the name of the defendant, the presumption is that she was the person intended.

We have considered the other questions raised, but we think no error was committed to the prejudice of defendant. Judgment will be affirmed.

The other Justices concurred.


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    SCUDDER v. CITY OF DETROIT.
    Streets and Alleys — Dedication—Discontinuance—Reversion.
    Where, under the terms of a dedication of lands in a city plat for streets and alleys, there is a reservation of the reversion, in the event of discontinuance by law, to the platter, his heirs or assigns, the grantee of the platter, and not the platter himself, who purchases lands bounding upon an alley, will, upon its vacation, succeed to the reversion. Plumer v. Johnston, 63 Mich. 165, distinguished
    Appeal from Wayne; Donovan, J.
    Submitted April 20, 1898.
    Decided May 17, 1898.
    Bill by Frances M. Scudder against the city of Detroit to restrain the enforcement of a paving assessment. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    Complainant owns lot No. 7, block 4, in Henry Weber s subdivision of parts of sections 55 and 56, Ten Thousand Acre Tract, in Detroit. The plat is recorded, and contains the following terms of dedication:
    “We do hereby dedicate to the perpetual use of the public all streets and alleys represented thereon (not heretofore dedicated), reserving to ourselves, our heirs or assigns, the reversion or reversions thereof, whenever discontinued by law. ”
    The situation of block 4 appears from the following portion of the plat:

    The platters have parted with their interest in all the lots in said subdivision. The city opened Delaware' avenue through said subdivision, vacated the alley, and the result is that the southerly half of said alley intervenes between lot 7 and Delaware avenue. The city has made an assessment for paving Delaware avenue against the northerly 90 feet of the easterly 40 feet of lot 7, and also against the westerly 40 feet of that part of the vacated alley lying east of the east line of Third avenue. The bill is filed to restrain the enforcement of this assessment. Defendant ■demurred, and the demurrer was sustained.

      James C. Smith, Jr. (Herbert Bowen, of counsel), for complainant.

      C. D. Joslyn, for defendant.
   Grant, C. J.

(after stating the facts). The claim of the city is that the adjoining lot owners own the fee to the ■center of the alley subject to the public easement, and that, when the alley was vacated, the lots of block 4 abutted upon Delaware avenue, and were subject to assessment as abutting lots. Complainant is willing to pay the assessment if she owns the fee in that portion of the alley opposite her lot, but contends that under the rule in Plumer v. Johnston, 63 Mich. 165, she does not own it. The statute provides that such recorded plat—

“Shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses in the county in which town, city, village, or additions lie, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.” 1 How. Stat. § 1474.

Section 1478 provides that when a street or alley is vacated—

“The same shall be attached to the lots or ground bordering on such street or alley, and the title thereto shall vest in the person or persons ownipg the property on each side thereof, to the center of such street or alley.”

The case of Plumer v. Johnston does not affect the question here presented. In that case the dedication had not been accepted, and the offer to dedicate was held to be terminated by the resolution of the common council to vacate it. The reservation was “to ourselves,” not to heirs or assigns. After this was done the owner replatted. In this case the dedication was accepted, and the lots have been sold as abutting upon the streets and alleys. Where one conveys land bounding upon a public highway, or lots upon a plat, representing them to be bounded by a street, the grantee takes the land to the center of the highway or street. Snoddy v. Bolen, 122 Mo. 479 (24 L. R. A. 507), and authorities there cited. Under a statute identical with ours, it was held that a conveyance of a lot abutting' on the street, without any express limitations, conveyed all the interest to the center of the street or alley. Tousley v. Galena, etc., Smelting Co., 24 Kan. 328. The reservation in the dedication in that case was of “all the mineral under the surface of such streets and alleys.” The conveyance of the lot contained no reservation. Justice Brewer said: “If the dedicator may reserve nothing in the street, his conveyance of the lot passes nothing in the street; but, if he reserves anything in the street, his conveyance of the lot passes the reservation.” The reservation in this case gave the platter the same interest in the streets that he would have had without the reservation, and his grantees take by virtue of their deeds all the rights he had to the center.

Decree affirmed, with costs.

The other Justices concurred.