author: MoAlvay, J.

text:
    CORLISS v. VILLAGE OF HIGHLAND PARK.
    1. Statutes — Implied Repeal — Municipal Corporations — Special Assessments — Limit op Taxing Power.
    Act No. 39, Pub. Acts 1899, providing that special assessment rolls to defray the cost of paving in villages shall be made in five parts, does not repeal section 2856, 1 Comp. Laws, limiting the amount of special assessments that may be levied in any one year against lands in any village organized under the general law to five per cent, of the value of such lands.
    2. Municipal Corporations — Special Assessments — Extension op Time por Payment — Eppect on Limit op Taxing Power.
    A paving assessment in a village organized under the general law, which, under Act No. 39, Pub. Acts 1899, is made in five parts, payable one part in each year for five years, is none the less a single assessment for a single year, and if its total amount exceeds the limit of five per cent, on the value of the property imposed by section 2856, 1 Comp. Laws, it is void as to the excess.
    3. Same — Priority op Assessments.
    Where several special assessments are levied against land in a village, the sum of which exceeds the limit of taxing power, the payment legally enforceable against the land must be applied in favor of the assessment the roll of which was first confirmed. Section 2841, 1 Comp. Laws.
    Appeal from Wayne; Mandell, J.
    Submitted May 2, 1906.
    (Docket No. 137.)
    Decided December 17, 1906.
    Bill by John B. Corliss and Frank D. Andrus against the village of Highland Park and William H. Davison, village treasurer, to restrain the collection of a special assessment. From a decree for complainants, defendants appeal.
    Affirmed.

      Paul B. Moody (Charles D. Joslyn, of counsel), for complainants.

      Rowland M. Connor, for defendants.
   MoAlvay, J.

Defendant in this case appeals from a decree setting aside as excessive two special assessments for local improvements levied by it upon lands of complainants in the year 1899. These lands are two certain lots, 6 and 7, Highland Park subdivision, in the village of Highland Park, each being assessed on the general tax roll of said village for that year at a valuation of $2,250,'being a valuation of $4,500 for both lots. The two special assessments levied against these lots for 1899 were special assessment-No. 15, for paving "Woodward avenue, and special assessment No. 17, for lateral sewers; the total of both assessments on the two lots aggregating $1,095.41. Special assessment district No. 15, which included complainants’ lots, was established by the resolution of the village council, June 26, 1899, which provided for the cost of said paving (except as to street intersections and street railway right of way) to be assessed upon the lands in said district. Later, the assessors were directed to make an assessment roll assessing the cost of the paving according to frontage; and, on July 29, 1899, said assessment roll having been duly made and filed was confirmed by the council and given to the treasurer for collection. On July 10, 1899, special assessment district No. 17, which also included complainants’ said lots, was established by resolution, which provided for the construction of certain lateral sewers in said district. In due course of the proceedings the assessors were directed to make an assessment roll for the purpose named. On August 11, 1899, the council confirmed this roll, assessing, upon the lands in said district the cost of said lateral sewers. Notices of these various proceedings were posted in said village as provided by the statute. Complainants were nonresidents of said villagej and had no other notice of these assessments until in April, 1900, after the work was completed. This special assessment for sewers against these lots as originally assessed was as follows: Lot 6, $68.60, lot 7, $68.71. John B. Corliss, one of these complainants, and the owner of other lots in said special assessment district No. 17, attacked the validity of the said assessment. This court (in Corliss v. Village of Highland Park, 132 Mich. 152) decided said special assessment invalid as to the excess over 5 per cent, of the assessed valuation, and directed a reassessment within the statutory limit of 5 per cent. A reassessment was made late in 1903, against lot 6, $34.55, and lot 7, $34.91. These assessments were returned delinquent with the delinquent taxes of 1904, and now stand against these lots which are liable to sale therefor.

The special assessment roll No. 15, for 1899, for paving above described, was made in five parts under the provisions of Act No. 39, Pub. Acts 1899, and said lots 6 and 7 were each assessed upon each part of said roll the sum of $95.81, making a total sum of $479.05 against each lot. Complainants made no election to pay by installments as they claim is required by said act, and, the first part not being paid, the whole amount was placed upon the general village tax roll for 1900 at the sum of $518.97 against each lot, being the sum of the five parts with interest at 6 per cent, from October 1, 1899. These amounts now stand upon the books of the county treasurer of Wayne county and of the auditor general against these lots which are liable to sale therefor. There is no dispute as to the facts in the case, the same having been stipulated. Complainants attack these two special assessments, on the ground that an amount exceeding 5 per cent, of the assessed valuation of their lots 6 and 7 was raised by the village in the year 1899 therein for local improvements, contrary to section 2856, 1 Comp. Laws. This is the sole question in dispute in the case.

The village of Highland Park is incorporated under the general village act of this State. Section 2856, 1 Comp. Laws, being section 5, chap. 9, of said act, reads as follows:

“Sec. 5. The council may raise by special assessment upon lands in sewer districts and special assessment districts, for the purpose of defraying the cost and expense of grading, paving, planking, and graveling streets, and for constructing drains and sewers, and for making other local improvements, charged upon the lands in the district in proportion to frontage or benefits, such sums as they shall deem necessary to defray the costs of such improvements, but not to exceed in any one year five per cent, of the assessed value of the property in the district chargeable with such expense. Moneys raised by special assessments to pay the cost of any such local improvement shall be held as a special fund to pay such cost and expense, or to repay moneys borrowed therefor.”

Act No. 39, Pub. Acts 1899, under which the special assessment roll No. 15 for paving was divided into five parts, adds a new section to the general village act (chap. 8) as follows:

“Sec. 22. Special assessment rolls to defray the cost of street paving shall be made in five parts, each part to contain a list of the lots or parcels constituting the special assessment district with the names of the owners or occupants of each lot or parcel, and one-fifth of the cost or expense of the work shalb be' assessed upon each one of said five parts. Such parts of the assessment roll shall be numbered one, two, three, four and five, respectively, and any person so electing may pay part one and have an extension of time for the payment of parts two, three, four and five, of one, two, three and four years respectively. If part one is not paid on or before the same shall become due, the whole amount of the assessment against any lot or parcel shall be due and no extension of time shall be granted thereon. Deferred payments shall draw interest at the rate of six per cent, per annum, and if any default shall be made in the payment of an installment or of the interest thereon, the whole amount of the assessment then remaining unpaid shall mature and become due and payable, and thereupon the same proceedings shall be had for the collection of the amount still due as are authorized by this act in case the owners or occupants have not elected to pay in installments. The village council shall have power to issue bonds * * * to the amount of the deferred payments. * * * Owners and occupants electing to pay by installments shall pay the full amount of the interest on each installment down to the maturity thereof, but may pay the principal and such interest into the village treasury before maturity. * * * ”

In the. case of Corliss v. Village of Highland Park, supra, this court construed section 2856, and also section 2835, 1 Comp. Laws, of the general village act. The part of this last section then under consideration reads as follows :

“In no case shall the whole amount to be levied by special. assessment upon any lot or premises for any one improvement exceed 25 per cent, of the value of such lot or land, as valued and assessed in the last preceding tax roll. Any cost exceeding that per cent., which would otherwise be chargeable on such lot or premises, shall be paid from the general funds of the village.”

The following language was used:

“These two sections must be construed together. So construed one fixes the limit to the amount of the assessment ; the other fixes the limit which shall be assessed in any one year.”

In 1899, and before special assessment district No. 15 for paving Woodward avenue was established, and the assessment confirmed, the legislature passed Act No. 39, Pub. Acts 1899, under which the village council made this assessment. There was no. express repeal of any of the sections of the general village act and the added section 22 will not operate as such repeal unless its terms are in such conflict with other parts of the act it necessarily does so by implication. Without repeating this section again at length, we may briefly state its provisions which are necessary to be considered:

1. Special assessment rolls to defray the' cost of street paving shall be made in five parts.

2. The parts shall be numbered from 1 to 5, respectively, “ and any person so electing may pay part 1 and have an extension of time for the payment of” the other parts “ of one, two, three, and four years, respectively.”

3. If part 1 is not paid when due, the whole amount of the assessment against any lot shall be due, and no extension of time shall be granted thereon.

4. Deferred payments shall draw interest, at 6 percent., and, in case of default in payment of any installment or interest thereon, the whole amount of the assessment then unpaid shall become due and payable, and the same proceedings are authorized to collect the same as in case the owners or occupants have not elected to pay in installments.

5. The village council is authorized to issue bonds to the amount of the deferred payments.

6. Owners or occupants electing to pay by installments shall pay the full amount of interest to the maturity thereof, but may pay principal and interest before maturity.

, It is urged that the legislative intent and purpose by this amendment was to make the same provision for special assessments in villages as is made by the general act for cities, which was construed in Boehme v. City of Monroe, 106 Mich. 401-406, making the provisions of section 22 paramount to the provisions of the earlier sections with which it may be found to be in conflict. The legislative intent must be found in the enactment. The general act for cities relative to special assessments provides (section 3208, 1 Comp. Laws):

“The amount thereof may be divided into not more than five installments, one of which shall be collected each year, * * * but the whole assessment after confirmation may be paid * * * at any time in full. ”

And section 3210:

“A special assessment roll shall be made for each installment as the same shall become due. * * * Such special rolls may be made and confirmed without notice to the persons assessed.”

The limitations upon the municipal authorities, in the two acts, as to the per cent, which may be raised for one improvement upon any one parcel, and the per cent, upon a whole district in any one year are identical. The sections above quoted provide that in cities the amount of a special assessment may be determined within the limitations, and divided into not more than five installments not to exceed 5 per cent, each, one of which shall be collected each year, and that special assessment rolls for each installment shall be made and confirmed as the same shall fall due. This provision was held by this* court in Boehme v. City of Monroe, supra, not to be in conflict with the above limitation upon the municipal power.

In the amendment of the general village act under consideration the division of special assessment rolls for paving into five parts is mandatory and not directory. But one assessment roll is made and confirmed. The taxpayer so electing may pay part 1 and have an extension of' time for the payment of the other parts. If he does not pay part 1 when due, the whole assessment becomes dué and payable, and no extension of time is granted. One act in clear terms provides for an assessment for each installment of the tax as it falls due. The other as clearly provides for one assessment of the entire tax, with a privilege to the taxpayer, if he so elects upon the payment of part 1, to have the time for payment of the other parts extended. The amendment makes no reference to the per cent, of the assessment authorized, and therefore does not conflict with the provisions of the general village act limiting the per cent, of special assessments io be raised in any one year.

This assessment was but a single one, and was made in the year 1899, and is in excess of the amount authorized to be raised in any one year. It is admitted that, unless authorized by the amendment of 1899, the village had no authority to levy special assessments in excess of 5 per cent, in any one year. See Corliss v. Village of Highland Park, supra.

Special assessments No. 15 for paving, and No. 17 for lateral sewers, were both made in the year 1899. These amounted in the aggregate to the sum of $1,095.41 against complainant’s property. The total amount lawfully assessable for such purposes under the statute was $225, or $112.50 upon each lot. All in excess of that amount was illegal and invalid, and properly so held by the trial court. It appearing from the stipulation of facts in this case that the total amounts of these special assessments were returned as delinquent taxes, and these lots now stand upon the list of lands subject to sale as delinquent tax lands, the trial court properly decreed that upon the payment of the sum of $225, being the amount of said assessments which was valid, complainants were entitled to full release and discharge of the lien thereof upon said lots. Complainants have always admitted that a 5 per cent, assessment could have been made upon these lots for the year 1899 for all special purposes. The situation was such that they could not know which assessment was valid, or in what proportion either or both were valid. It is of no consequence to complainants how the amount .they are required to pay may be apportioned, provided their lands are released. Defendants, however, are entitled to know upon which assessment payment should be applied. Section 2841, 1 Comp. Laws, provides:

“All special assessments shall, from the date of the confirmation thereof, constitute a lien upon the respective lots or parcels of land assessed. * * * ”

The paving assessment having been first confirmed became a lien prior to the assessment for lateral sewers, and upon the paving assessment the payment should be made.

The decree of the circuit court is affirmed, and a decree will be entered, containing the foregoing instruction as to application of payment, with costs to complainants.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    DAHLEM v. ABBOTT.
    1. Tenancy in Common — Adverse Possession — What Constitutes.
    Where co-tenants are brothers and sisters claiming as heirs of a common ancestor, mere possession by one co-tenant is not sufficient to establish ouster and adverse possession.
    2. Adverse Possession — Tenants in Common — Evidence—Sufficiency.
    In ejectment to establish plaintiff’s, title as tenant in common with defendants, evidence examined, and held, not to show that the possession of defendants was at any time adverse to that of plaintiff.
    3. Tenancy in Common — Rights of Tenants — Purchase of Tax Title.
    A tenant in common cannot acquire a title as against his co-tenants by purchase of the entire premises at a sale for taxes assessed during the period of the co-tenancy, in the absence of statutory authority.
    Error to Muskegon; Russell, J.
    Submitted June 6, 1906.
    (Docket No. 13.)
    Decided December 17, 1906.
    Ejectment by Lucy C. Dahlem against John Abbott and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Stephen H. Clink, for appellant.

      Nims, Hoyt, Erwin & Vanderwerp, for appellees.
   MoAlvay, J.

Plaintiff brought ejectment against defendants for the recovery of one-sixth of certain lots situated in the village of Fruitport, Muskegon county, as one of the heirs of Ursula Converse, her grandmother, who died in 1872, being the owner in fee of the entire property in controversy. Ursula Converse, the ancestor; upon her death, left surviving her a husband and five children, Charles, Augustus, Howell, Matilda, and Mary. Of these all are now dead, except her daughter, the defendant Matilda Converse. Of those representing the other children there now survive: A widow of the son Augustus; Paul and Fred, sons of the daughter Mary; the plaintiff and her brother Charles, children of the son Charles. During the lifetime of Ursula Converse these premises were the home of the family and she conducted a hotel, acting as landlady. After her death the daughter Matilda and her father continued to occupy the premises, carrying on the same business, with the father as head of the household and Matilda as landlady; some of the children returning home when out of work. After the father’s death in 1895, Matilda continued the business up to the present time. The expenses connected with the premises have been paid from the proceeds of the business. During all the years since the death of Ursula Converse these premises have been so occupied except for about a year in 1893, when they were leased to another party. The estate of Ursula Converse was never probated or divided. At her death her children were all of age. John Abbott [husband of the daughter Mary] alone defends this suit. The other defendants make no contest.

During the term of years above mentioned, and after the death of the daughter Mary Abbott, the defendant Abbott and Mary’s sons Paul and Fred, in the year 1887, were permitted to come and live with the others then occupying these premises. They continued to make'this their home, which was provided for them without charge, up to the year 1902, when Abbott returned to live in his own house, leaving the boys with Matilda. While so living on these premises, Abbott purchased them at the annual tax sale in May, 1890, for delinquent taxes for the year 1887. In 1901 he obtained a tax deed, and shortly after caused the same to be recorded. Defendant Matilda Converse, who was sworn as a witness for plaintiff, testified that this tax title was obtained by Abbott for the purpose of protecting her, and to cut off the other heirs; that the property was assessed to the father before the sale for taxes, and since to Abbott, except two years when it was assessed to the two boys, Paul and Fred; that Abbott has paid the taxes part of the time and she has paid them some years; that since the tax sale she has been in possession under Abbott. No evidence was offered on the part of defendants.

At the close of plaintiff’s case 'counsel for defendant movéd the court to direct a verdict in his favor for the reasons that the evidence showed (1) that plaintiff’s action was barred by the statute of limitations; (2) that Abbott’s title by adverse possession was complete at the time this action was brought; (3) that Abbott, by virtue of his tax title and possession under it, had obtained complete title to the premises. This motion was granted and a judgment was entered upon an instructed verdict. Error is assigned upon this action of the court. Plaintiff has established her legal title to an interest in the property as one of the heirs of Ursula Converse.

The questions, then, in the case, are whether plaintiff’s title had been defeated by adverse possession, and whether her title has been defeated by defendant Abbott’s tax title. There is nothing in the record to show thaf the possession of Matilda and her father, together with AJbbott and his two sons, was adverse to plaintiff as a co-tenant in the estate during the lifetime of the father. Nothing was done by the co-heirs in possession indicating that such possession was adverse. Where co-tenants are brothers and sisters claiming as heirs of a common ancestor, mere possession by one co-tenant is not sufficient to establish ouster and adverse possession. Fenton v. Miller, 94 Mich. 204.

The father died in 1895, and since that date sufficient time has not elapsed to create title by adverse possession; nor since that time up to the time of obtaining the tax deed is there any evidence of any overt act tending to show that the possession of any of these parties was adverse to plaintiff. Defendant was permitted to enter upon .these premises, and was there by license, without doubt, because he was the father of two co-tenants in the estate who were both actually occupying at the same time. The collusive agreement between Abbott and Matilda, as far as the record shows, was unknown to the other parties in interest. No possessory rights to land are acquired by a purchaser at a tax sale until a deed issues, and any agreement Abbott made with Matilda directly after his purchase could not bind her co-tenants. Defendant Abbott’s possession was never open, notorious, exclusive, and hostile as to the plaintiff or any other co-tenant. As against his own minor children, he could not obtain title by adverse possession nor acquire their title by obtaining the tax title in himself. His possession- was theirs. A tenant in common cannot acquire a title as against his co-tenants by purchase of the entire premises at a sale for taxes assessed during the period of the co-tenancy, in the absence of statutory authority. Sleight v. Roe, 125 Mich. 585, and cases cited. The plaintiff had no knowledge of any claim of title made by Abbott until his tax deed was recorded. This was about three years before this suit was brought. The tax deed could not be set up to defeat plaintiff’s title.

The judgment of the circuit court is reversed, and a new trial granted.

Carpenter, C. J., and Grant, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    ALDRICH v. SCRIBNER.
    1. Fraud — Deceit—Misrepresentations—Damages—Evidence.
    In an action for deceit in misrepresenting the character of real estate exchanged, evidence respecting the value of the property conveyed by plaintiff is immaterial on the question of damages, the measure of damages being the difference between the value of the property conveyed by defendant had it answered to the representation relied upon by plaintiff and its value as it actually was.
    2. Same — Misrepresentations—Exchange oe Property — Evidence.
    In an action for deceit in misrepresenting the character of property exchanged, evidence respecting the value of the property conveyed by defendant is admissible on' the issue whether defendant made the representations alleged, and whether plaintiff relied upon them.
    S. Same — Representations of Broker — Responsibility oe Principal — Instructions.
    In an action for deceit in misrepresenting the character of property exchanged, an instruction making defendant responsible for the misrepresentations of an authorized broker if plaintiff ratified the broker’s acts by consummating the trade, emphasizes the importance of giving an instruction, supported by the evidence, that if defendant informed plaintiff of the true character of the property before completing the trade, plaintiff no longer had a right to rely on the statements of the broker.
    Error to Wayne; Murphy, J.
    Submitted October 10, 1906.
    (Docket No. 42.)
    Decided December 17, 1906.
    Case by Frank Aldrich and Sarah E. Aldrich • against Enoch W. Scribner for fraud and deceit. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Clark, Jones & Bryant, for appellant.

      Palmer & Palmer, for appellees.
   Montgomery, J.

Plaintiffs recovered a judgment of $510 in an action on the case for deceit. The case as made •by plaintiffs was in substance as follows: On March 27, 1904, plaintiffs had bought on contract' and owned an equity in a house and lot on Warren avenue, in Detroit. Frank Aldrich, one of the plaintiffs, and acting for plaintiffs, in answer to an advertisement, called, on Barnard & McCloud, agents for defendant, about trading their equity in said property. Mr. Barnard told him Mr. Scribner -wanted to trade one parcel of land in Rochester, Mich., and a piece of land he knew all about, as he had just made a trade for it for Mr. Scribner, the owner. He said it was .40 acres of land, under cultivation; that there were 175 apple trees on the place; that there was a barn and two sheds, and there was room in the barn for stabling ■five horses; that there were five stalls; that the house was in fair condition; and he (Barnard) then made and gave to plaintiffs a pencil memorandum, of a part of said representations, as follows;

■ “Lapeer, Almont township — 40 acres; 6 room frame house — small barn and room enough for five horses; 175 fruit trees in good bearing condition; fences fair; rents at $100.00.”

By appointment Aldrich went with defendant to see the Rochester property, and they on the way there discussed the representations Barnard had made about the Lapeer farm, and Aldrich told Scribner he did not like the idea of making a contract without seeing the property, but he had figured it out that 175 bearing fruit trees ought to pay 6 per cent, on $1,600, the amount he asked for the property; and Scribner replied, “that is the way I look at it.” Scribner and Aldrich came back to Detroit, and after some little squabbling as to the exact amount to be allowed for each piece of property, they agreed to make the trade. Scribner agreed to allow plaintiffs $1,500 for their equity, and they were to allow Scribner for the Lapeer farm $850 and assume a $750 mortgage on it, and they were to allow him $1,150 for the Rochester property, and give him back a mortgage for $500 on the same. Plaintiffs had never seen the Lapeer farm, and claim to have relied upon the representations of defendant and his agent relative to the 175 apple trees, which were untrue. Defendant testified that he had not listed the 40 acres with Barnard & McCloud, and that the only representations made by him were.based upon the statements made by the former owner', arid that this was so stated to plaintiffs; that he did not represent that there were 175 fruit trees,' but, on the contrary,stated that he understood there were but 80 to 90 fruit trees, and so stated. On the trial, defendant offered to show that the actual value of the equity in the property traded by plaintiffs was very slight. This testimony was offered for two purposes: First, as bearing upon the probability of defendant having made the representations claimed, and of plaintiffs having relied upon them; second, for its bearing upon the measure of damages.

We think it clear that the testimony was not admissible for the latter purpose. The circuit judge rightly held that the measure of damages would be the difference between the value of the property had it ariswered to the representations relied upon by plaintiffs and its value as it actually was. We are constrained to hold, however, that the admissibility of this testimony for the first purpose stated is not an open question in this State, and that the court was in error in excluding the testimony. Stone v. Covell, 29 Mich. 359; Banghart v. Hyde, 94 Mich. 49. See, also, Likes v. Baer, 10 Iowa, 89.

Defendant requested the court to instruct the jury:

“You are instructed that if you find from the testimony in this case that the defendant, Enoch W. Scribner, represented to the plaintiffs that there were 80 or 90 fruit trees on this farm, that any representation previously made by Barnard & McCloud and the written memorandum given to Mr. Aldrich by Mr. Barnard previously are immaterial to this case,.and the plaintiffs had no right to rely on them.”

This instruction was refused, and the court charged the jury as follows:

“ If Barnard & McCloud assumed to act as the agents of the defendant, Scribner, in the sale of the farm in La-peer county, and had no authority from the defendant so to act, but afterwards the defendant carried out a sale which had been partially negotiated by said Barnard & McCloud, the defendant is bound by the representations made by the said Barnard & McCloud and on which the plaintiffs relied. In other words, gentlemen of’ the jury, even if Barnard & McCloud did not in the first instance have authority from Mr. Scribner to act as his agent, but in the absence of such authority entered into negotiations with Mr. Aldrich, and thereafter Mr. Scribner took up the negotiations which had been so entered into and carried them into effect, Mr. Scribner would be bound by any representations that Barnard & McCloud might have made prior to the tipie he gave them authority.”

. While error is not assigned upon the instruction as given, indeed it is not objectionable if the facts warranted such instruction, yet it is plain to see that the giving of this instruction emphasized the importance of giving the request of defendant. It would seem to be clear that, if before the trade was consummated the defendant apprised the plaintiffs that the number of fruit trees was but 80 tó 90, plaintiffs were no longer justified in treating Barnard’s representation as that of defendant.

The other questions presented are not likely to arise on a new trial.

Judgment reversed, and a new trial ordered.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


author: Carpenter, C. J.

text:
    ROGERS v. OSBORNE.
    Interest — Ownership—Gift Note.
    Where a promissory note bears annual interest and recites that on the death of the payee it is to become the property of a certain person, the principal not to be payable during the life of the payee if the interest is paid annually, the interest accruing after the last annual payment, before the death of the payee belongs to the person to whom the note is given and not to the estate of the payee.
    Error to Hillsdale; Chester, J.
    Submitted October 16, 1906.
    (Docket No. 55.)
    Decided December 17, 1906.
    Assumpsit by Eli B. Rogers against Byron S. Osborne and Jessie L. Osborne for interest on a promissory note. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Q-. F. Lewis and W. H. Frcmkhauser, for appellant.

      Spencer D. Bishop, for appellees.
   Carpenter, C. J.

January 25, 1899, defendants, who are husband and wife, executed the following note:

“Eor value received, we promise to pay Frederick Fowler nineteen hundred and fifty-two dollars, with interest at six per cent, per annum. At the death of Frederick Fowler, this note becomes the property of his granddaughter, said Jessie L. Osborne, as evidence of his love and affection. No part of said principal, $1,952.00, to be paid during the lifetime of said Frederick Fowler, if interest is paid annually as above stated.”

This note was secured by a mortgage containing a similar recital. Frederick Fowler, the grandfather of defendant Jessie, the payee and mortgagee above mentioned, died November 17,. 1902. The annual interest above mentioned was paid on the 25th of January of that year, and on the 25th of January of each preceding year. Plaintiff having, as he claims, acquired the rights of the estate, brings this- suit to recover the interest on the note from January 25, 1902 (the date of the last payment), to November 1?, 1902 (the date of Fowler’s death). The cause was tried in the circuit court by the court, who made a finding of facts and rendered a judgment in favor of defendants. It is conceded that plaintiff’s right to recover is to be determined by the construction of the note above set forth. If by the recital in that note Frederick Fowler gave the interest in controversy to defendant Jessie, the judgment is right.

The statement that, “ at the death of Frederick Fowler, this note becomes the property of * * * said Jessie L. Osborne,” clearly means that the amount unpaid on said note at the time of said death is given to said defendant Jessie. The intention to include in said amount unpaid interest accruing since the date of the payment of the annual interest is equally clear. That .intention must be inferred because only the annual interest is to be paid during the lifetime of Frederick Fowler. The recital is to be construed as if it read:

“The annual interest on this note shall be paid to Frederick Fowler during his lifetime, and whatever is unpaid thereon at his death is given to Jessie L. Osborne.”

It follows that the interest in controversy belongs to defendant Jessie, and cannot therefore be recovered by the plaintiff.

Upon the assumption that Frederick Fowler “reserved to himself during his natural life the income or interest on this $1,952.00,” appellant’s counsel cite many authorities upholding his contention that the interest in controversy belongs to plaintiff. These authorities are inapplicable, because, as already shown, the assumption is unfounded. Mr. Fowler did not reserve to himself during his natural life the interest earned by this principal. He merely reserved to himself the annual interest, and he clearly indicated that he gave to defendant Jessie all interest which might accrue in the interval between the payment of the annual interest and his death.

The judgment is affirmed.

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


author: Moore, J.

text:
      In re GUNN’S ESTATE. SAYER v. GUNN.
    1. Wills — Construction — Husband and Wife — Ante-Nuptial Agreement— Effect.
    Testator agreed by ante-nuptial agreement that in consideration of his wife’s release of all claim on his property, his executor, in case she survived him, should pay her $500 and interest at 7 per cent, from the date of the marriage. During his lifetime testator paid her $35 yearly, which he indorsed on the contract. His will gave her an equal share with his children less $500 and the interest thereon, “ the same being the consideration named in a certain deed, etc. ” Held, that the yearly payments by the testator were not to be deducted from the widow’s share.
    2. Appeal and Error — Questions Considered — Evidence.
    Whether it was error, in a case tried without a jury, to admit parol testimony from the scrivener who drew the will in question as to testator’s intention in making a certain provision, will not be considered where a proper construction of the will and another instrument referred to by it requires affirmance of the judgment.
    Error to Ionia; Davis, J.
    Submitted October 17,1906.
    (Docket No. 92.)
    Decided December 17, 1906.

      Jacob J. Sayer filed his final account as executor of the last will and testament of Theodore Gunn, deceased, which was allowed in the probate court and Agnes Gunn, a legatee, appealed to the circuit court. There was judgment for contestant, and the executor brings error.
    Affirmed.

      B. A. Hawley. for appellant.

      George H. Nichols, for appellee.
   Moore, J.

Theodore Gunn died May 14, 1902, leaving a last will which has been admitted to probate. The appellant, Jacob J. Sayer, is the executor named in the will and appointed by the probate court. The deceased left a widow, Agnes Gunn, him surviving, and David Gunn, Isabelle Sayer, George Gunn, Sarah Oatley, Isaac Gunn, Maggie Whorley, Emory Gunn, and Alice Gunn, his children. Agnes Gunn was his second wife. The children were the offspring of Mr. Gunn’s first marriage. Prior to the marriage of Mr. and Mrs. Gunn, and on or about the 30th day of November, 1888, an ante-nuptial agreement was entered into by them, in which agreement is the following language:

“That in lieu and in full satisfaction of her whole dower in his estate and of all claims of any and every nature whatsoever upon his personalty, he hereby provides and agrees that there shall be paid to her. by his executors or administrators out of his estate the sum of $500 with interest thereon at the rate of 7 per centum per annum from the date of such marriage, within 60 days after his death, should she survive him after such intended marriage.”

Further provisions followed to carry out the release of dower, and then:

“And further, if the said marriage shall be had and she shall survive him, that she will not claim any share or interest in his personal estate, unless some part thereof be given to her by his will or some act done by him subsequent to the execution of these presents.”

On the 15th day of June, 1898, Mr. Gunn made a will which contains the following provision:

‘ ‘ My will is: First. That all my just debts-, including funeral expenses, and the expenses of administration, shall, by my executor hereinafter named, be paid out of my estate, as soon after my decease as shall by him be found convenient.

Second. All the rest and residue of my estate, personal, real and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise, bequeath to be equally divided between and among my wife, Agnes Gunn, and my children [naming them as above], or to the issue of any deceased child or children by right of representation, share and share alike; provided, however, that the share of my wife, Agnes Gunn, shall be less five hundred dollars and the interest paid her thereon, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to my real and personal estate.”

Mr. Gunn paid $35 yearly to his wife, which payments were indorsed on the ante-nuptial agreement. After his death, and on July 10, 1902, the executor paid her the sum of $35. On July 13, 1902, he paid her the sum of $7.29, being the interest from April 29, 1902, to July 13, 1902. On November 12, 1902, he paid her the principal, $500, and the interest from July 13, 1902, to that date, $18.75. On the 9th day of April, 1903, the executor filed his final account, from which statement it appears that there remained for distribution among the legatees of Mr. Gunn the sum of $12,423.67. Upon this accounting the probate judge made an order distributing the estate as follows, to wit:

££ To Agnes Gunn, David Gunn, Isabelle Sayer, George Gunn, Sarah Oatley, Isaac Gunn, Maggie Whorley, Emory Gunn and Alice Gunn, the whole of said estate, real and personal, share and share alike; provided, however, that the share of Agnes Gunn shall be less the sum of five hundred dollars and the interest paid her thereon up to and including sixty days from the date of death of said Theodore Gunn, deceased, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to the personal estate of said deceased, which said sum so to be deducted from the proportionate share of said Agnes Gunn was $927.29, as shown by the statement attached at the time of the account of said executor.”

Mrs. Gunn appealed from this order to the circuit court, where a trial was had before the court without a jury. On the trial the testimony of the scrivener who drew the will was taken, over the objection of the attorney for the appellee, as to the conversation he had with Mr. Gunn at the time the will was drawn. Counsel for the appellant say:

“And the objection to this testimony and the holding of the court overruling any such objection occasioned the only exception that was taken on said trial.”

The court made findings of fact and law to which ex-exceptions were duly taken. The circuit judge foun,d a judgment in favor of Mrs. Gunn.

Counsel for appellant present the following questions in their brief:

“1. When, to what extent, and under what circumstances is parol evidence receivable as bearing upon the construction of a will ?

“2. Was the parol evidence, admitted on the trial of this case, receivable upon any question arising in the suit ?

“ 3. What is the proper meaning and construction of the language in this will, the meaning of which is controverted, and what was the real intention of the testator, as indicated by such language, properly construed ?”

He insists the testimony of the scrivener should not have been taken, under the following rule:

“ Parol evidence cannot be admitted to supply or contradict, enlarge or vary the words of a will, nor to explain the intention of the testator, except in two cases, viz.: (a) To explain a latent ambiguity arising dehors, or (b) to rebut a resulting trust” — citing Bradner on Evidence, p. 389; also section 9, p. 280, and many cases.

He further claims that the case does not come within the exceptions, and that the judgment of the probate court is right, and the judgment of the circuit court is wrong. Counsel for the appellee do not question the rule of law, but insist that the will shows the necessity of referring to the ante-nuptial agreement for its proper construction, and that the testimony of the scrivener is competent.

A reference to the provisions of the will which we have quoted will show that, after providing for debts, funeral expenses, and expenses of administration, Mr. Gunn desired his wife to share equally with his children; that from her share should be deducted “five hundred dollars and the interest paid her thereon, the same being the consideration named in a certain deed executed by her before marriage in lieu of dower in and to my real and personal estate.” It cannot be determined from the will itself to how much the interest amounted which was to be deducted. To find the amount it is necessary to refer to the ante-nuptial agreement. It is fair to infer from the will that the amount to be deducted was the amount which made up the consideration named in the ante-nuptial agreement. When we refer to that agreement, we find that Mr. Gunn provides:

“ That in lieu and in full satisfaction of her whole dower in his estate and of all claims of any and every nature whatsoever upon his personalty, he hereby provides and agrees that there shall be paid to her by his executors or administrators out of his estate the sum of $500, with interest thereon at the rate of 7 per centum per annum from the date of such marriage within 60 days after his death, should she survive him after such intended marriage.”

There is a further provision that because of the ante-nuptial agreement “she will not claim any share or interest in his personal estate, unless some part thereof be given to her by his will or some act done by him subsequent to the execution of these presents.”

It will be observed that under these provisions Mrs. Gunn relinquished all claim she would have to Mr. Gunn’s property and estate, unless she survived him. She was not entitled by the law, in the absence of the agreement, to dower uiitil his death, nor to his personal estate. The agreement was that, instead of her taking what the law would give her, she would take in lieu thereof $500 with interest thereon at 7 per cent, from the date of the marriage to be paid to her by the executor within 60 days after the death of Mr. Gunn. As a matter of fact, the executor never did pay this interest, but contented himself with paying one year’s interest on July 10, 1902, $35, and the further sums of $26.04, and he charged her the payments which had been made to Mrs. Gunn by her husband. Had the executor paid to Mrs. Gunn according to the provisions of the ante-nuptial agreement, and deducted from her share the payments thus made, or had he deducted simply the amount he in fact paid, he would have reached the same result which the circuit judge reached, and it would not have been necessary to take parol testimony. When the two instruments are read together, it is clear this is all he was entitled to deduct. The scrivener testified Mr. Gunn desired the will drawn so his wife should share equally with his children in the property he left, and he (the scrivener) undertook to so draw the will; that Mr. Gunn did not have the ante-nuptial agreement with him at the time, and said the will was to take the place of it. As before stated, when the will and the ante-nuptial agreement are read together, and the provisions contained therein are carried out, it results in an equal division of the property, and it is unnecessary to determine whether the parol testimony was admissible.

Judgment is affirmed.

Carpenter, C. J., andMcALVAY, Grant, and Blair, JJ., concurred,


author: Hooker, J.

text:
    HUTCHINS v. MURPHY.
    1. Lost Instruments — Deeds—Establishing — Evidence — Sufficiency.
    On a bill to establish a lost deed, evidence examined, and held, insufficient to show that such a deed was ever executed.
    3. Evidence — Impeaching Evidence — Probative Effect.
    Where a witness has testified that she did not execute a deed claimed to have been executed by her, testimony that she has stated elsewhere that she did execute such a deed amounts at the most to impeaching evidence, and is not proof that she did execute the deed.
    Appeal from Kalkaska; Chittenden, J.
    Submitted November 13, 1906.
    (Docket No. 126.)
    Decided December 17, 1906.
    Bill by Daniel C. Hutchins, guardian of Gladys Murphy, an infant, against James Múrphy and Jennie Murphy to establish a lost deed. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Ernest C. Smith, for complainant.

      J. L. Boyd and John W, Patchin, for defendants.
   Hooker, J.

Some time between 1890 and 1895 John Murphy purchased the 40 acres of land in question for $225. He and his wife joined in a deed of the same to his brother, James Murphy, on March 18, 1895. He procured a divorce from his wife within a year thereafter, and in 1902 he died. The complainant Hutchins is guardian for John Murphy’s daughter, an infant, and this bill is filed in her interest, as sole heir of her father, to compel James Murphy to deed the premises to her. The bill alleges that the deed from John to James Murphy was given without consideration, under a collusive arrangement between them, in anticipation of the divorce proceedings to prevent John’s wife from obtaining alimony, and that about two years later, James Murphy and wife deeded the premises back to John Murphy, and that the deed was never recorded, but was lost. After a hearing upon proofs taken in open bourt, the circuit judge rendered a decree in accordance with the prayer of the bill, and the defendants have appealed.

An examination of the record will show that the only testimony supporting the claim that the transaction with James was a collusive arrangement in anticipation of a divorce between John and his wife is that of the divorced wife, the mother of complainant’s ward. She stated that she married John December 25th, and the bill for divorce was filed against her the following March; that some time in March, before the bill was filed, John wanted to sell the place to his brother James, and move to East Jordan to live; that she consented and the deed was executed by both; and that a few days afterward his brother (which of the three brothers not being stated) came to John with a disgraceful story and persuaded him to leave her, and he left her within a week, and started divorce proceedings which she did not contest. To sustain the allegation that James deeded the premises back to John afterwards, two witnesses were sworn, who said that they were called to John Murphy’s house to witness a paper, that James was not there, but his wife, Jennie Murphy, was, and at John’s suggestion that “this is a good time to sign these papers,” Jennie produced a writing and directed them where to sign. One said he supposed it to be a deed of that place, because the words “ Warranty Deed ” were at the top, but both admitted that no one said that it was such, and that they did not know whether it was or not. On the other.hand, Jennie testified that it was not; that an. arrangement had been made by which John was to have the place for 10 years, and the paper in question was a lease or contract that she drew, and which her husband did not sign, but she did by his permission. James Murphy corroborated her in this, and testified that he paid John $250 for the place, and about two years afterwards agreed to deed it back to him whenever he should repay him the money, and what he had put into the place by way of buildings and other improvements; that John proceeded under this arrangement to build a house and barn and put down a well, borrowing for the purpose $200 from their sister Mrs. McKnight, which James learned after-, wards was secured by a mortgage given by John upon the place and which has not been paid, but which James expects to pay. James contributed to the buildings. The testimony of James and Jennie Murphy, if believed, would be conclusive of the case if there is no testimony directly contradictory to their statements, but counsel sought to impeach Jennie by showing contradictory statements made by her, and other witnesses were called to show that Dan Murphy and Charles Murphy, both brothers of James Murphy, had testified falsely. All of these witnesses, Jennie and Dan and Charles, were called on behalf of the complainant. Each testified that he did not know of a deed being made by James to John. After laying a foundation, complainant was permitted to show that Dan brought the McKnight mortgage to the register’s office for record and asked the witness, who was register of deeds, to look up and see in whom the title stood, and, on being informed that it was in James, said:

“It is just as I expected; his brother John hadn’t had the deed put on record.”

Dan admitted the conversation with the variation that the language used by him was “just as I expected, he didn’t have no deed on record.” By another witness complainants showed that Charles told him that his brother John had left a farm, a horse, and a cow, when he died. The most that can be said for this testimony is that it discredited the testimony of these witnesses, and, as all that their testimony amounted to was a denial of knowledge of a deed, it was not important testimony. It could not be considered as substantive evidence tending to prove the existence of a deed. That the learned circuit judge who heard the cause recognized the unimportance of this testimony and the weakness of complainant’s testimony generally appears from his opinion in which he states:

“I feel that the testimony is quite slender. I well realize that it is slim, but I also realize how almost impossible it would be, under the circumstances, for this young girl and the mother of this little child to find any more testimony, and, as the court always charges the jury, it is not the number of witnesses that decides, but the weight of the testimony, but it is the character of the witnesses, and I am free to say that, till Mrs. Lightheiser took the stand and gave her testimony, the court would not. have come to the decision that he has now. But, when she came on and told her story (which the court feels confident is true) as to what Mrs. Jennie Murphy told her at that time, as she has testified — under this testimony and the other' testimony in the case, the court believes it is the proper and right thing to hold, and I do hold, that this property belongs to this little girl, and a decree will be framed accordingly.”

Mrs. Lightheiser was the wife of a farmer who lived in the neighborhood. She was called to assist to the home of John after his death. Her testimony bears the evidences of truth, and impresses us as justifying the confidence that it seems to have inspired. She testifies that on that occasion Jennie had a conversation with her as follows:

“A. Well, yes, sir, I remember a conversation about the property.

“ Q. What, if anything, was said to you by Jennie Murphy at that time relative to the title to the John Murphy farm ?

Mr. Boyd: To that we object as incompetent, irrelevant, and immaterial. Anything that may have been said, if there was anything said, by Mrs. Jennie Murphy, would in no way bind the defendant James Murphy.

“A. Yes, sir; there was.

Q. What was it ?

“A. Do you want me to go straight through ?

Q. Just tell what Mrs. Jennie Murphy said relative to who owned the John Murphy farm.

“A. The John Murphy property ?

“Q. Yes.

“A. Well, she asked me who I thought John Murphy’s property would go to, and I told her to Gladys Murphy, and she said: ‘Well, they will have to prove that there is a Gladys Murphy first.’ And I says, ‘Well, Jennie, you people will have to prove that there hain’t a Gladys Murphy, or the property will surely go to her.’ Then Jennie says: ‘ Well, I don’t know if she will get anything or not. When John and Clara had their trouble John deeded his place to Jim, and when we deeded it back to John we didn’t deed it before any witnesses, and I don’t know whether she will get anything or not.’ ‘Well,’I says, ‘ if any one has anything against the place to hold it, why, it is all right, but, if they hain’t, it will go to Gladys Murphy.’ Then she said ‘ Well, there is nobody has anything against the place but Mary McKnight. She has a mortgage of $200.’ ‘Well,’ I said, ‘of course they can take that out, and the balance will go to Gladys Murphy.’ And I says, ‘ That was only a scheme to keep Clara Murphy from getting what really belonged to her. John just deeded it so as not to let her have any of it.’

Q. Well, that is all was said by Jennie Murphy relative to the farm or property, was it ?

“A. Yes; that is all was said.”

At that time James Murphy was not present. The witness testified that such conversation was the first that she heard about a deed from James to John. This testimony does not amount to evidence that such a deed was ever made. The most it does is to discredit Jennie’s testimony as to the nature of the instrument executed on the occasion referred to by her.

This leaves complainant’s case to rest upon the admitted fact that Jennie signed some kind of a paper which one witness said had the words “Warranty Deed ” at the top, and which apparently all admit dealt with this land either as a contract, lease, or deed, and the circumstances relating to the occupancy, mortgaging, etc., by John which are not inconsistent with either theory. On the other hand, if we lay aside the testimony of Jennie, the unimpeached testimony of James Murphy, also called by complainant, remains. He said that the deed was not without consideration, as alleged in the bill, for he paid $250 for it. Apparently it was not worth much more. He said further, that he never signed a deed of the place; that he did afterwards make a contract under which John occupied and improved the place with a view to repurchase, and that he authorized his wife to write and sign such a contract, and supposes she did because she told him she did 5 that he did not know of the mortgage to Mrs. McKnight until it had been given a week.

We are constrained to say that there is no evidence in the record warranting a legal inference that a deed of these premises was given by James Murphy to John Murphy as alleged in the bill, or that Jennie Murphy was authorized to sign a deed for her husband.

The decree is reversed, and the bill dismissed, with costs of both courts, without prejudice to a bill for specific performance.

Carpenter, C. J., and Mo Alva y, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    HODGSON v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Personal Injuries — Dangerous Plage to Work — Assumed Risk.
    There is no latent or concealed danger in digging a trench seven feet deep in ground frozen to the depth of three feet that requires a master to take especial care to warn and protect his servants, and the danger from injury, by reason of the frozen earth falling into the trench, is an apparent risk which a servant of three weeks’ experience assumes.
    Error to Berrien; Coolidge, J.
    Submitted November 13, 1906.
    (Docket No. 120.)
    Decided December 17, 1906.
    Case by William H. Hodgson against the Michigan Central Eailroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff was a laborer in the employ of defendant and was engaged in laying water pipe in a trench excavated by defendant. One and one-half miles of pipe in all were laid, and plaintiff had worked in and about the trench for about three weeks. He had had previous experience in digging trenches, none of them as deep as was the one in question at the point where he was hurt. The pipe was 10-inch pipe, in lengths of 12 feet. The method was to excavate sufficiently for a length of pipe, put the pipe in position, and fill the trench, and one set of men were employed in excavating, another in pipe laying, and a third in filling the trench. Plaintiff, on the morning of January 6,1904, was in the trench assisting in placing a length of pipe. The trench was about 7 feet • deep, about 3 feet wide at the top, 12 or 14 inches at bottom, had been partly opened the day before, and the side walls were frozen to a point some 3 feet or more from the top. The walls were not shored or otherwise supported. There was a cave-in from one side, the one on which the earth was thrown, plaintiff was caught, buried to • his waist, and injured. During the three weeks that plaintiff had worked there, he had seen and heard of no caving of the trench, nor had any dirt, to his knowledge, fallen into the trench. There was nothing about the trench when plaintiff got into it which indicated danger. He had never worked before in so deep a trench. Plaintiff having rested his case, the court, on motion of counsel for defendant, directed a verdict for defendant. Judgment was entered on the verdict.

      Burns & Sweet, for appellant.

      O. E. Butterfield (Henry Bussel, of counsel), for appellee.
   Ostrander, J.

(after stating the facts). It is the contention of counsel for the plaintiff that there existed, at the time and place of the injury, peculiar conditions, unknown to plaintiff, which increased the risk of his employment, which defendant was negligent in not guarding him against. Ostrander v. City of Lansing, 111 Mich. 693. Evidence of such peculiar conditions is found, if at all, in the testimony of two of plaintiff’s witnesses. I quote:

“The danger from the freezing of the sides of a ditch is that if you dig below the frozen ground and have the heft of the dirt above or any jar the side will slide in. It would be more apt to slide in where it is frozen if there was any dirt fell out from below; that is, the frozen part would loosen from the the other — that is, from the part back of it. I learned this from experience. I have been engaged in other work beside farming and such work. I don’t know about this matter being the general knowledge of most men. Can speak only for myself.”

Another witness who was with plaintiff in the trench testified:

“At the time of the accident I did not know anything about the effect of freezing of the side of the bank, but I have since learned what the effect is. The sand will start below the freezing, and that will weaken it above, where there is so much heft on one side as where it caved. The frozen portion will break loose from the other. * * * The jar, any jar, would be more apt to make that fall in.”

Trains had that morning passed the point where the injury occurred at a distance of 25 feet. If it is a fact in physics that frozen earth unsupported will not sustain itself, and whatever may be placed upon it as well as if it is not frozen, it is not made to appear that the agents of defendant had or should have had knowledge of the fact. If unfrozen earth, under a frozen crust of earth three or four feet in thickness, in a trench the walls of which slope more than three inches to each foot of depth, and which is only seven feet deep, is likely to move when it would not do so if there was no crust, it would seem that plaintiff’s experience of three weeks in and about this trench, dug in midwinter, should have discovered the fact to him. If, as is likely,-and as I shall assume, these witnesses meant to be understood as saying the frozen earth, unsupported, was more likely to break off from the bank and to go into the excavation in masses, than would earth not frozen, such a condition cannot be said to be peculiar to this trench, dug in freezing weather and in mixed soil. Such danger is not latent or concealed. When the soil at the bottom of the trench moved out into the trench, leaving the side wall unsupported, the danger was, of course, apparent. That it might do so was a risk of the employment assumed by plaintiff. There was no risk which was not as apparent to him as to any one else who had his considerable experience. The soil began to move about three inches from the bottom of the trench. Some one who saw it gave an alarm. Plaintiff, unfortunately, was unable to escape the incoming earth. The case is ruled by Foley v. Gaslight Co., 127 Mich. 671.

The judgment is affirmed.

Cabpenter, C. J., and MoAlvay, Montgomery, and Hooker, JJ., concurred.


text:
    FOWLER v. De LANCE.
    1. Specific .Performance — Contract—Evidence — Sufficiency.
    On a bill for specific performance of a contract to convey a farm in consideration of support and care, evidence examined, and held, not sufficient to show that the contract claimed was ever made.
    2. Same — Bill—Failure of Proof — Accounting.
    Where, on a bill for specific performance of a contract to convey land in consideration of support and care, complainant fails of proving the contract, but shows the expenditure of money in betterments on the land and in caring for and burying decedent, he is entitled to an accounting of such disbursements.
    Appeal from Kent; Perkins, J.
    Submitted November
    13, 1906.
    (Docket No. 111.)
    Decided December 17, 1906.
    Bill by Albert F. Fowler and Elizabeth Fowler against Eliza De Lance, Martha Noble, and Gustave A. Wolf, guardian ad litem of Ethel Noble, an infant, to enforce the specific performance of a land contract. From a decree for complainants, defendant Wolf appeals.
    Reversed, and remanded. ,
    The question in this case is whether a contract was made between complainants, who are husband and wife, on the one part, and Joseph B. Noble, deceased, on the other, by the terms of which- complainants were to move upon propórty described as the northeast quarter of the northwest quarter of section 30, in Cannon township, Kent county, Mich., owned and occupied by said Joseph B. Noble, to care for him during his life, pay the expenses of his last sickness and burial, and receive a conveyance of the said property, running to them jointly, as compensation for such care. It is important, in view of the argument made in this court, to set out with some particularity the averments in the bill of complaint, verified by the complainants on the 9th of March, 1901. The story told in the bill is, in substance and effect, the following:
    The mother of complainant Albert F. Fowler intermarried with Joseph B. Noble, complainant at that time being about six years of age, the mother dying in April, 1897. Two children were born of the marriage, both of whom died before either of their parents, one of them leaving issue, a daughter, who, it is averred upon information and belief, died before said Joseph B. Noble. Joseph B. Noble died on the 30th of September, 1900, leaving as his sole heirs two sisters, the defendants De Lance and Noble. After the death of his wife, said Joseph B. Noble, living alone on his farm, frequently requested complainants to move into his residence on the farm, take charge of the farm, care for, nurse, and support him during his natural life, and provide the expense of his funeral after his death, and offered to convey to complainants jointly the said farm and all property belonging to him thereon.
    Complainants agreed, on or about July 16, 1899 (the proofs show that this date should have been averred as of July, 1900), to leave their then place of residence, move on to said farm, take charge of the same, care for, nurse, and support the said Joseph B. Noble in a becoming manner during the remainder of his natural life, and pay all necessary costand expenses of his funeral after death, said Noble promising and agreeing that he would convey to complainants jointly the said farm and all property belonging to him thereon. Pursuant to this agreement, complainants, moved upon, and took charge of, the farm, cared for, supported, and nursed said Noble in a becoming manner, and, after his death, provided his body a decent and respectable burial and assumed the expenses thereof, in full completion of their said contract and agreement. After complainants entered upon the performance of the agreement and during the lifetime of said Noble, they frequently pressed him- to carry out his agreement and to convey to them by good and sufficient conveyance or agreement in -writing said farm and property but he delayed entering into any written agreement until shortly before his death, when he made out, under his own hand, and signed, a memorandum in writing, delivering the same to complainants, said memorandum reading:
    “ I give my property to Fred and wife for my support while I live.
    “Joseph Noble.”
    (The original of the memorandum referred to is returned into this court for inspection.)
    Complainants have frequently communicated with the said sole heirs at law of said Noble regarding their right to the premises, and received letters fully acknowledging their right to the property, but the existence of a grandchild of the said Joseph B. Noble remaining in doubt they have been unable to secure a full and complete title to the premises by deed of conveyance to them from said heirs, and those heirs, on account of the uncertainty of the death of said child, refuse to convey unless a settlement with said child is first secured. Being therefore without remedy except in a court of equity, the bill is filed against the sisters of said Noble and said unknown granddaughter, if alive, and it is prayed that complainants may be decreed the lawful possessors and owners in fee simple of the premises.
    The infant granddaughter, the only living descendant of Joseph B. Noble, by her guardian, answered the bill of complaint, asking for affirmative relief by way of an accounting for the rents and profits of the premises and for waste committed, and that the complainants convey to her their alleged claim and surrender possession of the premises. Among other defenses set up is the one that, at the time of the alleged gift of said premises to complainants, said Joseph B. Noble was mentally incompetent to dispose of his property and was under the undue influence of the complainants.

      In the court below a decree was entered for the specific performance of the contract, and the infant defendant is ordered to execute and tender to complainants a deed of conveyance, conveying all her claim to said premises. As to the defendants De Lance and Noble, the bill is dismissed. The guardian ad litem has appealed from this decree.

      John W. Powers, for complainants.

      Walker & Fitzgerald, fpr appellant.
   Ostrander, J.

(after stating the facts). Having reached a conclusion opposed to that arrived at in the court below, in which court the witnesses were presented, with such advantage as their appearance and manner of delivering their testimony affords, it is proper to state with some particularity the reasons for concluding that the complainants have not made a case. It is clear that the complainants, on or about July 26, 1900, moved upon the premises in question and thereafter until the death of Mr. Noble, in September of the same year, made their home there and kept his house, Mrs. Fowler especially being kind to him. It is proved that, after his death, they buried him, paying the funeral expenses, amounting to about $88, and some small store bills, amounting to $14 or $15. When complainants first rested their case, no evidence had been introduced except the written memorandum which has been referred to, to establish the contract set out in the bill of complaint or to prove by what understanding or arrangement complainants occupied the farm. The witnesses who had been sworn were the complainants, Huntley Russell, James Beeson, and Earl Barker. We need not look into the testimony of complainants for competent proof of the alleged agreement. The testimony of Mr. Russell is to the effect that Mr. Noble said to him that, if he could get a person to come there and take care of him as long as he lived he could have the farm, and he asked if witness knew of a proper person. The testimony of Mr. Beeson, who is a son of Mrs. Fo.wler, is that he found the paper writing, to which reference has been made, in a little box used by Mr. Noble as a tool box, with awls and things of that sort in it, in the bottom of the little box in Noble’s trunk. This witness was not at the farm while complainants and Noble lived there: He went there after the death of Mr. Noble and after his burial. He found the paper, he says, in the presence of Mr. Fowler. There were letters in the trunk. He testified that the paper writing is, in his opinion, in the handwriting of Mr. Noble. The testimony of Earl Barker is to the effect that Mr. Noble said to him:

‘ ‘ I have got good care. Fred and Elizabeth are taking care of me.”

The defense having offered testimony, and the cause having proceeded to argument, it was, after an interval of some days and upon application of counsel for complainants, reopened, and, coming on to be heard, over the objection of counsel for defendants, John Cady and William Hyser, the physician of Mr. Noble, William Koning, and Mary Rideout were produced as witnesses for the complainants. Up to this point, it seems clear that the case for complainants was rested, and was intended to be rested, upon proof of the expressed desire of Mr. Noble that someone should live with him, and that such a person might have the farm, upon proof that complainants had gone to live with him, and upon the writing as evidence of a contract actually made. The defense had, however, attacked the genuineness of the writing, had produced a petition, verified by complainant Albert F. Fowler on September 10, 1900, filed in the probate court for the county of Kent in the matter of the estate of Joseph B. Noble, in which he describes himself as stepson of Joseph B. Noble and a friend interested in his welfare, and stated that said Noble was of the age of 78 years or thereabouts, and, by reason of his advanced age and hard manual' labor, was reduced to a state of incompetency—

“ And is unable to care for himself or for his necessary wants, nor is he able to care for and manage his estate hereinbefore mentioned; that said estate consists of a farm of 40 acres of land in said township, and of cows and swine; that, without the intervention of this honorable court in the matter, said farm and said personal property will be lost to said Noble and become absolutely worthless and insufficient for his care and support; that, at the instigation of said Noble, and under his express wish and desire, your petitioner and his wife moved on to the farm and looked after the management thereof until the present time, having commenced occupation on the 26th day of July, 1900; that they have had the care and management of said estate since that time, and have looked after said Noble and cared for him in the best manner possible; that, owing to the mental and physical condition of said Noble, your petitioner does not desire to remain longer on said place unless matters are so arranged that he and his said wife can be assured of their money,' irrespective of the promises and assurances of said Noble; that said Noble is feeble and entirely incompetent, mentally and physically, to care for himself or his estate, and is incompetent mentally and physically to have the charge, custody, and management of his person and estate; and that it is necessary that a guardian be appointed of his person and estate for the reasons hereinbefore set forth, and to save same for his care and support for the remainder of his life.”

The names of interested persons are said to be-Noble, grandson, 10 years old, Sand Lake, Mich., besides the two sisters who have been mentioned. They had shown Mr. Noble’s recollection of and fondness for his granddaughter, his hostility to his stepson; that Mr. Noble died on Sunday and was working about his farm on the previous Saturday, husking corn; that the farm was let on shares for the year 1900, Noble to harvest his share of crops, which consisted of corn and potatoes. The paper writing is a sheet of small note paper, folded once. Upon its face is the alleged promise or agreement. On the outside is written, “July 24, 1900.”' “Will.” “$25 to grandchild when 18 years old.” Mr. Fowler did no work on the farm previous to the death of Mr. Noble. The complainant Mrs. Fowler continued the business of a laundress to the amount of $8 or $10 a week. Of the improvements claimed to have been made upon the place after the death of Mr. Noble, the well, which cost $22, was paid for by trading one of the three cows. The other two were sold for $25 apiece. There was one hog left when Mr. Noble died. That was killed by complainants. The house moved upon the place cost $30. The corn and potatoes, Noble’s share of the crops, were used by complainants. They have cut some timber on the place and sold some ties since the death of Mr. Noble. Six dollars and some cents in money, which Mr. Noble left at his death, complainants had.

It was with the case in this situation that the additional witnesses were produced. John Cady is a brother-in-law of Mrs. Fowler. While he varies his testimony somewhat, he does testify that, several weeks before the time he was on the witness stand, he told Mrs. Fowler’s daughter that he didn’t know anything about the matter in particular, didn’t think he could do them any good, but that he did tell her just what he told on the witness stand. The effect of his testimony, in any event, is that Mr. Noble told him one day that he was looking for complainants to come, and had made arrangements with them to come and take care of him as long as he lived. He did not tell what the arrangements were or anything further. The testimony of the physician is to the effect that he told Mr. Noble, in the summer of 190‘0, that he should have some one to live with and care for him; that later, Mr. Noble having told him that Mrs. Fowler was good to him, he said that it would be proper for him to provide some means for her getting her pay, to which Mr. Noble replied that he had it fixed. How, or in what manner, he had it fixed was not stated. His testimony that Mr. Noble was sick for four weeks before he died is directly disputed. The witness Koning says that Mr. Noble told him that he was getting old and would have to have help, and so Mr. Fowler and his wife consented to come and help; that Noble further said that he had no further use for the place after lie was dead, so they could have the place for taking care of him. On cross-examination, he stated that this conversation was about a month before the death of Mr. Noble; that they were sitting on the lawn in front of the house when it occurred, visiting; that Mr. Noble said Fred and his wife would take care of him; he could not pay them in any other way because he had no money; they would have the place; that he remembered nothing upon any other subject being said in that conversation.

We are not satisfied, by the evidence, that the written memorandum was executed and delivered in evidence or in performance of the alleged parol agreement. We are not satisfied that complainants, or either of them, ever saw the memorandum, if it is genuine, until after the death and burial of Mr. Noble. If the facts set out in the petition in the probate court are true, no valid arrangement with Mr. Noble, whether the one averred or another, is proved. If we assume that complainant Albert is ap ignorant man, as is intimated in the brief, and did not rightly appreciate the statements contained in said petition, his action is nevertheless significant as showing whether he was relying upon, and considered himself bound by, the agreement which he asserts was made with Mr. Noble. It is unnecessary to enter upon a discussion of the question of the genuineness of the paper writing. Counsel for complainants, who, in his main brief, does not refer at all to the written' memorandum, insists that, independent of that memorandum, enough appears to make a case for relief; that, if there are variances between the bill and the proofs, they are circumstantial and do not change the substantial merits. He cites and relies upon Taft v. Taft, 73 Mich. 502. Discrediting, as we do, the fact that the written memorandum was executed for the purpose of carrying out a promise to convey lands to the complainants jointly, that it was executed after repeated requests on the part of complainants to Noble to carry out the agreement to convey, that it was delivered, when executed, to the complainants or to either of them, it is both natural and reasonable that we should also discredit the alleged fact that complainants moved upon the farm and did whatever they are shown to have done there in part performance of the contract set out in the bill of complaint. The reasoning of the opinion in the case of Taft v. Taft cannot be. applied to this case. The evidence independent of the written memorandum does not clearly and satisfactorily proye the contract set out in the bill. Moreover, it does not appear that complainants made any such change in their course of life, habits, or business, even if we assume that the changes which were made were in part performance of some contract with decedent, as requires the court, in the exercise of a sound discretion, to grant them the relief prayed for. It is clear that all they did is capable of pecuniary measurement. Webster v. Gray, 37 Mich. 37.

“ The ground on which the court acts at all, in these cases, is fraud, in refusing to perform after performance by the other party.” McMurtrie v. Bennette, Har. Ch. (Mich.) 124.

See, also, Webster v. Gray, supra. In any view of the case, complainants have failed to convince us of their right to the relief prayed for. There is no reason, however, why an accounting should not be had in which the complainants may be allowed their disbursements, whether for betterments of the property or for the expenses of the sickness and burial.

The decree is reversed, and a decree will be entered in this court denying complainants the relief prayed. The record • will be remanded, with direction to take an account. Defendant Ethel Noble will recover costs of both courts.

Carpenter, 0. J., and McAlvay, Montgomery, and Hooker, JJ., concurred.


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    ROGERS v. DETROIT SAVINGS BANK.
    1. Bills and Notes — Indorsers—Rights—Enforcing Payment.
    The holder of a promissory note who is its owner owes no duty to an indorser to take steps to enforce payment as soon as it becomes due.
    2. Same — Delay of Holder.
    An ordinary indorser of a negotiable note is not discharged from liability by mere delay or refusal on the part of the holder to sue the maker for any period short of that fixed by the statute of limitations, where the indorser’s liability has been duly fixed by demand, protest, and notice, though the maker may become insolvent during such delay; the remedy of the indorser in such case being to pay the debt himself and then enforce his rights- against the principal debtor.
    3. Same — Action—Payment by Indorser.
    In an action by the indorser of a note who has paid the same against his indorsee for negligence in failing to present an indemnity bond with the copy of- the note presented on the day it was due, the note having been lost, plaintiff cannot complain that the presentment was insufficient to obligate the maker to pay the note, if it was in fact sufficient to charge o plaintiff with the liability of an indorser; and he having paid the note and thereby admitted the sufficiency of the presentation to so charge him, such admission is conclusive.
    4. Appeal and Error — Review—Questions Considered — Theory Below.
    A claim that the evidence required the submission of the case to the jury on a certain theory not advanced below will not be considered on error.
    Error to Wayne; Brooke, J.
    Submitted November 13, 1906.
    (Docket No. 115.)
    Decided December 17, 1906.
    Assumpsit by Charles T. Rogers against the Detroit Savings Bank for the amount of a promissory note lost thi-ough defendant’s negligence. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      G. G. Yerkes and P. B. Bromley, for appellant.

      Miller, Smith, Alexander & Paddock, for appellee.
   Carpenter, C. J.

Plaintiff is a member of Charles T. Rogers & Sons, a partnership composed of himself and his two sons. That partnership owned a negotiable note for $1,450, dated April 34, 1900, due June 35, 1900, payable to its order at the First National Bank at Erie, Pennsylvania. Plaintiff, acting for the partnership, indorsed this note and delivered it to defendant.

It is the claim of plaintiff’s counsel that defendant took this note as collateral security for the payment of an indebtedness. We cannot approve this claim. It was conceded in the lower court — and we must dispose of the case in accordance with that concession — that the note was discounted by defendant. June 13, 1900, defendant, for the purpose of having the note collected, sent it by mail to defendant’s correspondent in Cleveland. It was lost in transit and never delivered. A copy, however, was duly presented to the maker; payment was refused, and it was duly protested. On the 8th of August, 1900, defendant furnished the maker a bond of indemnity, but in the meantime the maker had failed and in consequence only about 10 per cent, of the amount of the note was ever paid by it. The evidence warrants the inference that if the note had not been lost, or if a proper bond of indemnity had been furnished at the time it became due, the maker would have paid the entire amount of the note. Plaintiff having, in recognition of his liability as indorser, paid the note, brought this suit to recover damages. The case was tried in the court below before a jury and a verdict directed in defendant’s favor. It was the claim of plaintiff that he was entitled to recover the damages because of defendant’s negligence. He claims that defendant was negligent in losing the note and in failing to give a bond of indemnity at the time the note was presented for payment.

The way this negligence affected plaintiff, and the only way it affected him, was to postpone collection for a time during which the maker became insolvent. To sustain plaintiff’s claim, it is necessary to declare that the holder of a note like the defendant, who was the owner (Fredonia Nat. Bank v. Tommei, 131 Mich. 674; Davenport v. Stone, 104 Mich. 521) is under an obligation to an indorser to take steps to enforce payment as soon as it becomes due. This is not the law.

“In the. absence of statute or special agreement, an ordinary indorser of a negotiable bill or note is not discharged from liability by mere delay or refusal on the part of the holder to commence or prosecute a suit against the maker or accepter for any period short of that fixed by the statute of limitations, where the indorser’s liability has been duly fixed by demand, protest, and notice, although the maker or accepter may become insolvent during suc.h delay. * * * In such a case the remedy of the indorser is to pay the debt himself and then enforce his rights against the principal' debtor.” 7 Cyc. p. 904.

See, also, East River Bank v. Kennedy, 9 Bosw. (N.. Y.) 543; Smith v. Erwin, 77 N. Y. 466; Ashton v., Sproule, 35 Pa. 492; Way v. Dunham, 166 Mass. 263.

Plaintiff’s counsel also urge that the presentment of the copy of the note was insufficient because it was unaccompanied by tender of a bond of indemnity. Plaintiff cannot complain that the presentment was insufficient to obligate the maker to pay the note, if it was in fact sufficient to charge him with the liability of an indorser. The question of its sufficiency to charge him with such liability was one to be determined when he was called upon to pay the note. By paying it he ádmitted its sufficiency. See Brown v. Mechanics & Traders’ Bank, 16 App. Div.. (N. Y.) 207; Linthicum v. Caswell, 19 App. Div. (N. Y.) 541; Perry v. Rhodes, 2 Cranch C. C. (U. S.) 37; and Hughes v. Bowen, 15 Iowa, 446. This admission is conclusive, and it is not open to re-examination in this litigation.

Nor can it be said that when plaintiff paid the note he did not know that presentment was made in the manner it was. His own testimony indicates that he knew the note was lost before presentment, and that no bond of indemnity was tendered until several days afterward.

Plaintiff testified that three or four days after the maturity of the note, defendant’s cashier informed him that he had already sent a bond of indemnity. It is now contended that this testimony (which is contradicted by defendant) warranted the submission of the case to the jury, because it is claimed they might have inferred that plaintiff, by reason of this false statement, omitted to pay the note and take steps which would have resulted in its payment by the maker before its insolvency. It is doubtful if this claim is warranted by the pleadings or by the testimony. If it is, it is a claim which should have been made on the trial in the lower court, and it was not so made. It was not apprehended by the trial court or by opposing counsel, and it was not obvious. The case was tried in the lower court upon the theory that no such claim was made, and we must hold that plaintiff’s counsel assented to its being tried upon that theory. It is now too late to raise the point.

Plaintiff’s counsel contend that the court erred in preventing a witness testifying to the contents of a letter written by the maker of the note to defendant. We need not consider this alleged error, because it was entirely harmless, for the letter itself was subsequently put in evidence.

There is no error in the record and the judgment is affirmed.

McAlvay, Montgomery, Ostrander, and Hooker, JJ., concurred.


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    UNGERS v. CHAPMAN.
    Homestead — Abandonment—Evidence—Supeioienov.
    On a bill to set aside an execution levy on the ground that the land levied upon was complainant’s homestead, evidence examined, and held, to show that at the time of the levy complainant had no definite intention to return to the property and occupy it as a homestead.
    Appeal from Kent; Perkins, J.
    Submitted November 13, 1906.
    (Docket No. 110.)
    Decided December 17, 1906.
    Bill by Adam Ungers against Leman H. Chapman, sheriff, Cornelius De Boers, and John Miller to set aside an execution levy. From a decree for complainadt, defendants appeal.
    Reversed, and bill dismissed.

      Thompson & Temple, for complainant.

      Walker & Fitzgerald, for defendants.
   Montgomery, J.

Complainant filed this bill to set aside a levy upon 40 acres of land under an execution in favor of the defendant Miller. The defendant Chapman was sheriff, and the defendant De Boer his deputy. The circuit judge granted the relief prayed, and defendants appeal.

The property in question is within the constitutional limits of a homestead, both as to extent and value. There is no doubt that, prior to December, 1900, complainant had resided upon this land with his wife. At about that date complainant’s wife began divorce proceedings against complainant. In March, 1901, a settlement was had between complainant and his wife, by the terms of which she released to him her interest in the homestead for a consideration. Complainant in the fall of 1901 leased the premises for the term of three years, and removed to the city of Grand Rapids. There was no exception or reservation in the lease. Complainant left a bed and some household furniture on the premises, which he testifies was in pursuance to an oral understanding with the tenant. Complainant offered the land for sale, but did not find a purchaser. The tenant left at the end of one year. Complainant then rented the farm for five years. The complainant again offered the place for sale. The premises became vacant in the spring of 1904 and remained vacant until September, when complainant reoccupied them. The levy was made in February, 1902.

The question of fact which the record presents is whether the complainant was only temporarily absent from the home, with a continuing intent to return and occupy the premises as a homestead. Hoffman v. Buschman, 95 Mich. 538; Smith v. Kidd, 123 Mich. 193; Swift v. Kleckner, ante. While the complainant testified that he expected to return some time, he also testified that he had not attempted to sell the property. In this latter statement he is contradicted by reliable testimony. His whole course of dealing with the property convinces us that he had po definite intention to return to the property.

The decree is reversed, and bill dismissed, with costs of both courts to defendants.

Carpenter, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


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    DEAN v. CLINTON COUNTY TREASURER.
    Drains — Orders—Funds—Application.
    Where drain orders for constructing a drain were unpaid for want of funds belonging to that particular drain account, funds raised by assessment in proceedings to clean, widen, and extend the same drain cannot be used to pay such orders, though there is an excess remaining after completion of the work, it not being made to appear in what proportion the fund was derived from territory not within the old district.
    Appeal from Clinton; Searl, J.
    Submitted November 14, 1906.
    (Docket No. 148.)
    Decided December 17, 1906.
    Bill by Let J. Dean against Adin W. Skinner, treasurer of Clinton county, to require the payment of certain drain orders. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      H. J. Patterson, for complainant.

      William M. Smith, for defendant.
   Montgomery, J.

The county drain commissioner of Clinton county in 1883 laid out a drain known as the Hayworth Drain. ” Two orders amounting tp $180 were given on the fund to be derived from assessments, and these orders are held by complainant. From time to time the orders have been presented for payment; but, there being no funds, payment has been refused.

In 1901 a petition was filed with the drain commissioner, asking that the Hayworth drain be cleaned out, widened, and extended. This was done. An assessment was made which realized something more than enough to pay the actual cost of the same up to this time.' The Hayworth extension drain assessment includes the original territory of the Hayworth drain and additional territory as well. The complainant asked the court below to compel the county treasurer to pay his orders out of the funds in his hands. This was refused, and an appeal was taken to this court.

Complainant relies upon Act No. 222, Pub. Acts 1903. It is obvious that the proceeding taken by the drain commissioner in 1901 could not have been had with a view to the provisions of that act. Nor can we say that equitably the complainant is entitled to the relief prayed. It is not made to appear in what proportions this unexpended fund is derived from new territory. Those who are assessed for the extension should not have their contributions diverted to the payment of the cost of the original drain.

The order denying relief is affirmed.

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


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    RHODES v. RHODES.
    Trusts — Establishment—Evidence—Sufficiency.
    On a bill to enforce an alleged trust, evidence examined, and held, insufficient to show that the grandchildren of decedent were included in her direction to her agent to pay each of her children a certain sum of money.
    Appeal from Calhoun; Hopkins, J.
    Submitted November 14, 1906.
    (Docket No. 77.)
    Decided December 17, 1906.

      Bill by William E. Rhodes and others against Yoluntine Rhodes and others to enforce an alleged trust. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Hatch & Page, for complainants.

      Huggett & McPeek, for defendants.
   Hooker, J.

William E. Rhodes is a son of Elizabeth Rhodes, deceased. The other complainants are her grandchildren. All of the parties to the suit are heirs at law of Elizabeth Rhodes.

Prior to her death she authorized her son Yoluntine to act as her agent in the management of her property, and property amounting to upwards of $6,000 in notes and mortgages was delivered to him by William E. Rhodes, who had previously acted in that capacity. After her death this bill was filed, complainants claiming that Elizabeth Rhodes had directed her agent Yoluntine to pay to each of her children $370, and that the grandchildren were included. The bill was filed to enforce an alleged trust.

The learned circuit judge who heard the case disposed of it upon the merits, holding that the grandchildren were not included in the alleged gift, and that the item of $370, given to each of her children, was paid so far as William E. Rhodes was concerned, by surrendering to him a note which she held against him. As we fully concur in his view pf the testimony, it is unnecessary to discuss the legal questions raised, and the decree is affirmed, and the bill dismissed, with costs.

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


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    TROMBLY v. KLERSY.
    Judgment — Collateral Attack — Contempt.
    Refusal of the circuit court in chancery to dismiss a creditor’s bill on the ground of adequate remedy at law cannot be attacked in proceedings to adjudge defendant guilty of contempt in refusing to obey an order requiring him to assign certain property to a receiver.
    Appeal from Wayne; Mandell, J.
    Submitted November 14, 1906.
    (Docket No. 150.)
    Decided December 17, 1906.
    Bill in aid of execution by Robert Trombly, guardian of the person and estate of Joseph Buhler, an incompetent, against Andrew Klersy. An order was,made requiring defendant to appear before a circuit court commissioner and assign certain property to a receiver. From an order adjudging defendant guilty of contempt in refusing to comply with said order, he appeals.
    Affirmed.

      De Forest Paine and Charles F. Hilton, for complainant.

      William Look, for defendant.
   Hooker, J.

The appellant was defendant in the above-entitled cause, against whom a decree was rendered requiring him to appear before a circuit court commissioner and assign' certain property to a receiver, provided for therein. A summons was issued, commanding him to appear before the circuit court commissioner, who issued the same, for the purpose of complying with such order. He refused to obey the summons, and an order was issued commanding him to appear in the circuit court and show cause why he should not appear before the commissioner, and execute such assignment, in obedience to the summons, and why he ■ should not be punished as for a contempt in refusing to obey said order, first mentioned, and the summons of the commissioner.

The defendant appeared in response to the order, and questioned the jurisdiction of the court, upon the grounds:

1. That the order appointing the receiver was void, because the court had no jurisdiction to make the same.

2. Because the court should have quashed the summons as prayed in his petition of April 18, 1906, upon several grounds stated therein.

The court adjudged him in contempt and that his misconduct tended to defeat and impair the rights and remedies of the complainant and ordered that said Klersy appear before the commissioner within 24 hours from the signing of the order, and that he then and there comply with the terms of the order of December 30th, and that in default thereof he be imprisoned in the Wayne county jail for the period of 30 days from the date of said order. Instead of complying, the defendant has appealed.

Three different times the defendant has sought to review the action of the circuit judge in the proceedings and orders of the circuit court in the case, and in each instance the appeal has been dismissed. His counsel now endeavor upon this appeal to accomplish the same thing sought to be accomplished by those appeals. We cannot consider such questions further than to determine whether that court had jurisdiction to make the order of December 30th.

The bill was a creditor’s bill, and it was enough to say that it was a case within the jurisdiction of the circuit court in chancery. It may have been called upon to de-" termine whether under the facts it should dismiss the bill upon the ground that there was an adequate remedy at law, but its determination cannot be attacked collaterally, as is attempted here. There is nothing upon this record requiring a reversal of the order last appealed from. It shows a disobedience of an order, and a proper hearing upon an order to show cause why defendant’s disregard of the order should not be punished. The final order rendered in the contempt proceeding was conditioned on his compliance with the original order for which a further opportunity was given.

The order appealed from is affirmed, with costs, and the cause remanded for further proceedings.

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