author: Grant, J.

text:
    BENNETT v. CARR.
    Pure-Food Laws — Oleomargarine—Color.
    Act No. 22, Pub. Acts 1901, prohibiting the sale oí any product in imitation of yellow butter, does not prevent the sale of oleomargarine whose yellow color is produced naturally from its food ingredients.

      Certiorari to Muskegon; Russell, J.
    Submitted June 29, 1903.
    (Docket No. 85.)
    Decided July 14, 1903.

      Mandamus by John R. Bennett to compel John M. ' Carr, a justice of the peace, to entertain a complaint and issue a warrant for an alleged violation of the pure-food law. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Charles A. Blair, Attorney General, and Cross, Lovelace & Boss, for relator.

      Smith, Nims, Hoyt & Erwin (Kingsley & Wicks, of counsel), for respondent.
    Relator is an inspector of the State dairy and food department. On the 24th day of February, 1903, he made complaint before the respondent, a justice of the peace of the county of Muskegon, charging one Martin E. A. Aamodt with having sold one pound of oleomargarine, contrary to Act No. 22 of the Public Acts of 1901. The respondent refused to entertain the complaint and issue a warrant, on the ground that the complaint stated no-offense- under the provisions of said act, and that said act is unconstitutional and void. Relator thereupon applied to the circuit court for the county of Muskegon for the writ of mandamus to compel the respondent to issue said warrant and proceed with the examination. The circuit court sustained the action of the respondent, and the case is now before us for review upon certiorari.

    The statute in question reads as follows:
    “Section 1. No person, by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to-sell, any article, product, or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure, unadulterated milk or cream of the same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the' consumer of its real character, free from coloration or ingredient that causes it to look like butter.”
    The complaint charges Mr. Aamodt with unlawfully selling one pound of oleomargarine—
    “Made wholly or in part of fat, oil, or oleaginous substance or compound thereof, as follows, to wit: Water, 22.75 per cent.; butter fat, 1.34 per cent.; beef fat, lard, and cotton-seed oil, 79.24 per cent.; salt and other mineral matter, 4.54 per cent.; curd, 3.13 per cent., — said article, product, or compound not being then and there butter-produced from unadultered milk or cream from the same, and being then and there in imitation of yellow butter produced from unadulterated milk or cream from the same, and not being then and there oleomargarine in a separate and distinct form, and in such manner as would advise the consumer of its real character, free from coloration or ingredient that would cause it to look like butter, but that the said oleomargarine was then and there of a yellow color in imitation of butter, said color not being then and there produced by the addition of any artificial coloring matter, but said color being produced solely by the said ingredients therein contained, the said ingredients hereinbefore set forth having been selected and used in the manufacture of said oleomargarine in such manner and in such quantities and proportion as to produce an oleomargarine that was then and there in imitation of yellow butter produced from unadultered ■ milk or cream from the same, contrary to the form of the statute,” etc.
    The oleomargarine so purchased was manufactured in the city of Chicago, State of Illinois, by one Moxley, a resident of said city, and was sold by said Moxley to said Aamodt in the usual course of trade, and by said Aamodt was sold in the usual course of retail trade, in the same form and condition, and in the original package, in which it was received by Aamodt from Moxley. It is conceded that this oleomargarine has a yellow color similar to butter, but the color is not produced by any artificial coloring substance or ingredient used for the purpose of coloration, but is produced solely by the selection and use, in proper proportions, of the substantial, recognized, legal, and necessary ingredients of commercial oleomargarine.
   Grant, J.

(after stating the facts). Does the complaint state an offense covered by the statute? The answer depends upon the construction to be given to the statute. The relator contends that the statute covers all products which look like yellow butter, and that it is immaterial whether such color is produced by some ingredient introduced for the purpose of causing the product to look like butter, or whether such color is produced by authorized and legal constituent food ingredients. The respondent contends that the statute is aimed only at the use of ingredients used solely for the purpose of producing the yellow color, and does not prevent the manufacture of an article whose color is natural, genuine, and not an imitation.

Penal statutes must be construed strictly, and cannot be extended by construction beyond the intent of the act as expressed on its face. The conditions existing at the time the statute was enacted, and the mischief to be remedied, are important factors in construing penal statutes. Two acts covering the same subject must be construed as in pari materia, and, if possible, effect given to both. These are elementary rules of construction. At the time the statute in question was enacted, the only method in use in causing the oleomargarine to look like yellow butter was the introduction of some extraneous coloring matter. This was the mischief to be remedied. We clearly so understood in People v. Rotter, 131 Mich. 250 (91 N. W. 167), where, speaking'through Chief Justice Hooker, we said of this statute: “The statute under consideration * * * does not prohibit sales of oleomargarine which is not tainted with the prohibited ingredients.” See, also, People v. Phillips, 131 Mich. 395 (91 N. W. 616). The legislature has defined oleomargarine which may be.manufactured and sold in this State. Section 6, Act No. 147, Pub. Acts 1899. It is conceded that the respondent has complied with this act. If we give the enlarged construction to the statute now in question, as urged by the relator, it follows that the legislature has prohibited the manufacture and sale of a valuable article of food, the natural color of which resembles yellow butter (itself almost universally colored by extraneous matter). The manufacturer of such a product, if he sold it at all, would be compelled to introduce some coloring matter so as to make it look unlike the yellow butter of commerce. These two statutes must be construed together. The article sold by the respondent is clearly authorized by the first act. The latter act does not in terms prohibit its sale and manufacture. It does prohibit the use of any substance for the sole purpose of producing yellow color. The use of such coloring matter was the sole mischief then known to exist, and the only danger to be apprehended and guarded against.

A similar statute was passed in New Jersey, and the like contention was made to support a conviction; and the court said:

“To construe the statute so broadly would render it practically prohibitive of the sale of all oleomargarine; for, of course, the compound must derive color from its ingredients, and such a prohibition has manifestly not been declared. ” Ammon v. Newton, 50 N. J. Law, 543 (14 Atl. 610); McCann v. Com., 198 Pa. St. 509 (48 Atl. 470).

Our statute is copied verbatim from that of Massachusetts. A superior court of that State, in a case just decided, has held that the statute applies only to extraneous substances or ingredients which cause the product to look like butter, and not to cases where the ingredients themselves naturally produce the color. Com. v. Heinberg. The Supreme Court of the United States so held in regard to the same statute. Plumley v. Com., 155 U. S. 461 (15 Sup. Ct. 154).

The term “ingredient,” used in the statute, does not refer to the ingredients essential to produce the article as •defined by the legislature, but to an ingredient used to produce color. The maxim “ Noscitur a sociis ” applies.

Under this disposition of the case, it becomes unnecessary to discuss any constitutional question.

The order is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    PEOPLE v. PORTENGA.
    Criminal Law — Alibi—Instructions—Evidence.
    An instruction that the jury should scrutinize the evidence relating to an alibi; that it is a defense easily proved and hard to disprove, — therefore they should be careful and cautious in examining the evidence, — did not tend to discredit the respondent’s testimony, nor indicate to the jury that they should be controlled by any supposed view of the court.

      Exceptions before judgment from Muskegon; Russell, J.
    Submitted June 12, 1903.
    (Docket No. 146.)
    Decided July 14, 1903.
    John Portenga was convicted of an assault with intent to commit the crime of rape.
    Affirmed.

      F. W. Cook, for appellant.

      George S. Lovelace, Prosecuting Attorney, and Charles B. Cross, Assistant Prosecuting Attorney, for the people.
   Carpenter, J.

Defendant was convicted of committing an assault with intent to commit the crime of rape. His defense was an alibi. He asks to have the conviction set aside on the ground that the court erred in charging the jury as follows:

“The defense in this case, gentlemen, — one of the defenses introduced here, or a train of circumstances that has been presented here, — tends to show an alibi of the defendant here, as claimed by the defendant. That is a defense which is legitimate. If it is true that this defendant was not in a condition so that he could have committed the crime, that should be a perfect defense, and would be a perfect defense; but in the consideration of that class of defenses, gentlemen, it is necessary for you to take into consideration the fact, and it is your duty as jurors to examine carefully the evidence given on that point, — scrutinize any evidence in relation to the alibi. An alibi is a defense that is easily proven, and hard to disprove; therefore you will be careful and cautious in examining the evidence bearing upon the question of alibi. I say, if it is established, and you believe the evidence, — in other words, if you believe that this party was in a position so that he couldn’t have committed the crime, — of course that would be an absolute defense.”

It is insisted that the court erred in telling the jury to ‘ ‘ scrutinize any evidence in relation to the alibi. An alibi is a defense that is easily proven, and hard to disprove; therefore you will be careful and cautious in examining the evidence bearing upon the question of alibi.” This language did not instruct the jury to discredit the defendant’s testimony, nor did it indicate to them that they should be controlled by any supposed view entertained by the court. It simply cautioned the jury to carefully examine that testimony. Cases might arise in which it would be unnecessary, and perhaps improper, to extend such a caution ; but, as the record in this case does not contain the testimony referred to, we are bound to assume, under the authority of People v. Tice, 115 Mich. 219 (73 N. W. 108, 69 Am. St. Rep. 560), that this was a case in which it was proper to extend it.

The exceptions of defendant are therefore overruled, and the court directed to proceed to judgment.

The other Justices concurred.


text:
    TRAVIS v. WATSON.
    Contracts — Proposal—Acceptance.
    ■An offer to extend the time for paying the principal of a note for a year, on condition that the interest due is paid, is not accepted, so as to make a valid extension, by a letter promising to keep it another year, where the interest is not paid.
    Error to Clinton; 'Stone, J.
    Submitted June 12, 1903.
    (Docket No. 95.)
    Decided July 14, 1903.

      Assumpsit by Isabella M. Travis against John, A. Watson upon a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Frost & Jackson, for appellant.

      H. E. & E. L. Walbridge, for appellee.
   Carpenter, J.

Plaintiff commenced this suit March 17, 1902, to recover on a promissory note payable to her order and made by defendant. The note was dated November 7, 1895, and was for $121, payable one year after date. On the 13th of November, 1900, one Harriett N. Ellis sued the plaintiff, before a justice, at St. Johns, Clinton county, and garnished the defendant. In defendant’s disclosure, made in obedience to said garnishee summons, he admitted that he -was indebted to the plaintiff in this case, upon the note in suit, to the amount of the principal thereof and the unpaid interest. Said justice-court case resulted in a valid judgment in favor of Mrs. Ellis against the plaintiff. On a second summons being issued to the defendant to show cause, he, on or about December 10, 1900, paid into said justice court the full amount of principal and accrued interest on said note, and was thereupon by said justice discharged from further liability.

It is the claim of the plaintiff that, by an arrangement made by correspondence between plaintiff and defendant before said justice-court suit was commenced, said note did not become due until November 7, 1901; that therefore defendant had no right to admit a present indebtedness in said garnishment suit; and that, in consequence, his liability to plaintiff was .not affected by the proceedings in that case. The following is the correspondence which it is claimed created that arrangement: October 4, 1900, plaintiff wrote defendant:

“ Some time ago, I requested you not to pay the interest on the note I hold against you, of $121, to Mrs. Henry Ellis. Mrs. Ellis holds the original note, and I the copy. I find the note is given November 7th, 1895, and I wish to know if you are going to pay note in full or only the interest this year, November 7th, 1900. Please let me know, as I am making arrangements to meet some obligations in December. Should you care to keep the money another year, I can do without it, only I must know at once.”

To this letter defendant replied, October 15, 1900:

“Yours is just received. I will keep the matter you mention one more year, and later on will write you in regard to it.”

At the time defendant was served with the garnishee summons, he had not written again to plaintiff, as he agreed in the above letter, nor had he paid the interest due November 7, 1900. This case was tried without a jury. The court made a finding of facts, of which the foregoing is the substance, and rendered judgment for the defendant.

It is a complete defense to the claim asserted by plaintiff in this suit if the letters of October 4,1900, and October 15, 1900, did not constitute a valid contract extending the time of the payment of the note from November 7, 1900, to November 7, 1901. We agree with, the trial judge-that they did not. Such a contract was not made unless both parties were bound. It is clear to us that defendant’s answer of October 15th to plaintiff’s letter of October 4th was not such an acceptance as to bind the plaintiff. In plaintiff’s letter of October 4th, she says:

“ I wish to know if you are going to pay note in full or only the interest this year, November 7th, 1900. Please let me know. * * * Should you care to keep the money another year, I can do without it, only I must know at once.”

This letter, properly construed, means that defendant may have the principal another year, but the interest due November 7th should be paid. Defendant’s answer that “ I will keep the matter you mention one more year, and later on will write you in regard to it,” clearly enough indicates that he will keep the principal another year; but he uses no words from which it can be inferred ‘that he will pay the interest as plaintiff desired, and in fact he did not pay it. There was therefore no such acceptance of plaintiff’s proposition as to create a contract binding upon her or upon defendant. See Johnson v. Stephenson, 26 Mich. 63; Eggleston v. Wagner, 46 Mich. 610 (10 N. W. 37). As this correspondence did not prevent plaintiff’s enforcing payment of this note, it did not prevent Mrs. Ellis, her creditor, enforcing its payment in a proceeding in garnishment.

The view we take of this question makes the other assignments of error relied upon by the plaintiff immaterial. We refrain, therefore, from considering them.

The judgment of the court below is affirmed.

The other Justices concurred.


author: Hooker, C. J.

text:
    MANEY v. CASSERLY.
    1. Equity Jurisdiction — Probate Courts — Estates oe Decedents — Fraudulent Distribution.
    Where the widow and administrator of an intestate have fraudulently secured orders and decrees of the probate court distributing the estate to persons who are not heirs, to the exclusion of the true heirs, which orders and decrees the probate court cannot correct, equity has jurisdiction to compel an accounting, and a distribution to the ones entitled thereto. Smith v. Boyd, 127 Mich. 417.
    2. Same — Claims—Closing op Estate.
    Where, in such case, the widow, who had profited by such fraud, had died, and her estate had been administered to the point of finding a final balance, and an order of distribution made which could not be appealed from nor opened by the probate court, it was not necessary to proceed against the widow’s estate before filing a bill in equity to reach the share of the heirs.
    3. Same — Laches.
    Where, through fraud practiced upon the courts and the complainants, orders have been secured to distribute an estate to others than the heirs, and the fund still remains intact, equitable relief will not be denied on the ground that complainants were guilty of laches in not discovering the death of the intestate earlier.
    4. Estates op Decedents — Distribution—Rents.
    Heirs, whose existence was fraudulently concealed from the probate court by the administrator and widow of the intestate, were held to be entitled to their proportionate share of the rental value of the real estate while their rights were denied, -with interest for the average time at 6 per cent., less the value of the necessary repairs.
    5. Same — Widow’s Allowance.
    Under 3 Comp. Laws, § 9333, subd. 2, a widow is not entitled to a further allowance for her maintenance after her portion of the estate has been assigned to her.
    6. Same — Litigation—Costs.
    Where certain heirs have secured for the estate funds which were fraudulently concealed by the administrator, other heirs, who share in the benefits of the litigation, should contribute to the expense.
    Appeal from Wayne; Brooke, J.
    Submitted January 6, 1903.
    (Docket No. 2.)
    Decided September 15, 1903.
    Bill by Ellen Maney, George A. Green, and Howard S. Dean against Patrick Casserly, administrator of the estates of Andrew C. Green, deceased, and of Margaret Green, deceased, Patrick Casserly, Peter Casserly, and James Casserly, for an accounting. From the decree rendered, complainants and defendant Patrick Casserly appeal.
    Modified.

      Elisha A. Eraser {Jasper C. Gates and Sidney T. Miller, of counsel), for complainants.

      Bacon & Yerlces {Fred H. Aldrich and Tarsney & Fitzpatrick, of counsel), for defendant Patrick Casserly.

      Cornelius J. O’Flynn, for defendant Peter Casserly.
   Hooker, C. J.

Andrew C. Green died intestate on October 3, 1895. His heirs at law consisted of his widow, Margaret Green, and the complainants, who were his nephews and a niece. On petition of the widow, her brother, defendant Patrick Casserly, was appointed administrator. On July 3, 1896, Patrick Casserly filed a petition praying that the residue of the estate be assigned to said Margaret Green, representing in said petition that she was entitled to it as widow and only heir of Andrew C. Green, and that said Andrew C. Green left him surviving no lineal descendants, nor father, mother, brother, sister, nor issue of any brother or sister. Upon a hearing in probate court, such an order was made, and the administrator was subsequently discharged from his trust.

Margaret Green died November 9, 1896. Upon his own petition, Patrick Casserly was .appointed administrator of her estate. His inventory stated that her only property consisted of two city lots, and on September 10, 1897, he filed his final account, showing a ' balance of $348.76 due him as administrator from her estate.

Defendants Peter and James Casserly, brothers of Patrick, were nonresidents of Michigan. They claim to have known nothing of the settlement of the estate of Andrew C. Green, but were informed by letter from Patrick of the death of Margaret about the time that it occurred. They were then or afterwards informed by Patrick that she left little, if any, estate. Upon coming to Detroit, they learned that Patrick’s final account as administrator of her estate was about to be passed upon, and they entered upon a contest in relation thereto. It was claimed by them that Patrick had failed to charge himself with all of the property belonging to Margaret, and that he had found and taken into his possession, and not accounted for, large sums con-, cealed about the house and under the floor, and also a sum hidden in a feather bed. No distinction was made between moneys belonging to Margaret and Andrew, for she had been adjudicated his sole heir, and his property was supposed to have been all turned over to her in obedience to the order of the probate court. If the Casserlys, or any of them, knew that this claim was.a fraud, — as we have no doubt one or more of them did, — it was not to their interest to divulge the fact, and the case was disposed of upon the assumption that Andrew died leaving no kin, and that all left by him descended to his widow. Upon the hearing in probate court, Patrick was found to owe the estate of Margaret $17,087.36. Appeals were taken to the circuit court by all of the Casserlys, where the amount was increased to $23,774.72, and the estate was assigned to the three Casserlys in equal shares. This decision was’affirmed by this court. See Casserly v. Casserly, 123 Mich. 44 (81 N. W. 930). The complainants were not parties to that litigation.

After the decision in the circuit court, Peter and James Casserly began attachment .proceedings against Patrick to recover their respective shares, and a levy was made upon some of his property; but, before sale, the bill in this cause was filed, asking a receiver, and the property was tied up by injunction. Ultimately, however, Patrick was allowed to pay into court a sum equaling five-sixths of the amount found in the administrator’s hands, where it has since remained, in the custody of the register, drawing 3 per cent, interest.

It is stated in the briefs, and not denied, so far as we have been able to discover, that in the probate proceedings before the circuit court the court instructed the jury to charge Patrick with money found in the chimney and under the floor, but that the evidence was insufficient to establish the claim for money concealed in the bed. It is claimed also that an item of $65 for rent of real property, with interest, was included.

The bill of complaint in this cause was filed December 12, 1898, by the complainants, as the children of William C. H. Green, deceased, the only brother of Andrew C. Green, claiming one-half of Andrew C. Green’s estate. They charge fraud upon the part of Patrick Casserly and Margaret Green in procuring the order assigning the residue of Andrew’s estate to her, and ask that such order be vacated. They allege that a large sum of money belonging to Andrew C. Green came to the hands of Patrick, and was not accounted for to the probate court, and ask an accounting. Peter and James were joined as interested parties. The decree adjudged that the complainants are heirs of Andrew C. Green, deceased, and entitled to one-half of his estate, real and personal. The amount of personal property belonging to them was found and determined as follows, viz.

One-half of the balance found due the estate of Andrew, according to the final account........................ $7,339 69
One-half amount found in house, and appropriated by Patrick Casserly.................................... 2,959 27
Interest on same at 3 per cent.......-................. 1,004 13
Total_______________________ $11,303 09
Also from Patrick Casserly one-half of money found in featherbed.......... 2,525 00
Interest on same............................ 492 38
Aggregate........................................$14,320 47

The decree made an allowance against the complainants of $750 to Peter Casserly by way of compensation in securing an allowance of said sum of $5,918.54 against Patrick in the probate case. It also determined the amounts due to Peter and James, each of whom received one-half of the remainder of the money in the hands of the register. Interest was computed at 3 per cent, from the date of filing the bill. ' The foregoing is not a complete statement of the entire decree, but is sufficient for the present purpose.

The complainants question this decree in the following' particulars:

(1) Of money in court, it is claimed that they should receive $13,148.34.

(2) Against Patrick Casserly, they claim one-half of the money found in the bed, and 6 per cent, interest, $5,565.23; one-half of $1,389.55, improperly allowed the administrator upon his account in probate court, with interest, $960.65.

(3) One-half of the rental of the real estate, alleged to amount, with interest, to $1,206.51.

(4) They question the propriety of requiring them to pay Peter Casserly $750 towards the expense of his litigation with Patrick.

The case presents the following questions:

(1) Whether the complainants' are heirs at law of Andrew C. Green.

(2) Whether they have commenced the proper proceeding for relief.

(3) Whether they have been guilty of such laches as to preclude relief.

(4) The amount for which Patrick and the estate of Margaret should be held accountable to them, if anything.

(5) How much, if anything, should be allowed from the fund deposited ?

(6) Whether complainants should be required to contribute to the expense incurred by Peter in the litigation between the Casserlys.

Are the complainants heirs of Andrew C. Green? Although this may have been vigorously denied and disputed for a time, it admits of no doubt. It is conclusively proved, and is now conceded.

Are the complainants in the proper forum, and is the proceeding a proper one ? Counsel for. defendant Patrick Casserly say: (a) That equity is not the proper foruin; (6) that complainants thould have first proceeded against the estate of Margaret.

The bill in this cause can be sustained upon the ground that the case involves fraud. It is difficult to avoid the conclusion that Margaret, if informed of the truth, participated in the fraud of Patrick. We say “the fraud of Patrick” advisedly, for, although counsel say that it is not proven that he knew of the existence of these heirs, it is not probable that he was ignorant of the fact that Andrew C. Green had a brother, which fact Margaret would naturally know. We find no satisfactory evidence of any attempt to reach him or his heirs, though there are large charges for expenses at Woonsocket. But if we would otherwise entertain any doubt of the fraudulent concealment of the death of Andrew from his heirs, the conduct of Patrick in denying that there was anything in •the estate of Margaret, his failure to account for money found upon the premises, and the conversion of it to his own use, in connection with his attempt to cheat his own brothers out of their shares, stamp the entire transaction, so far as he is concerned, as fraudulent. We have mo doubt that equity has jurisdiction in such cases. Bights have accrued under the orders of the respective courts, in the probate proceedings, which can only be devested by a proceeding like this. Smith v. Boyd, 137 Mich. 417 (86 N. W. 953). Through fraud on the part of Patrick, and mistake, if not fraud, on the part of the other Casserlys, Andrew’s estate has finally been ordered distributed to persons who are not his heirs, to the exclusion of the true heirs. Those courts cannot correct their decrees and orders, and equity is the only tribunal that can bring all of the parties together, and put an end to the matter, by doing full and complete justice to all concerned.

We see no occasion for any proceedings in probate court as a preliminary to, this bill. The estate of Andrew is closed, and the property was turned over to Margaret, and has come to the possession of her administrator, and the administrator of Andrew has been discharged. Margaret has died, and her estate has been administered to the point of finding a final balance in the hands of her administrator, and ordering it distributed; such final order having been affirmed by this court in ignorance of the true heirs of Andrew and their rights. Now it transpires that of this fund a large portion was never the property of Margaret, although disposed of by an order which the probate court cannot open, while Patrick is found to have a large sum belonging to Andrew C. Green, for which he never accounted to either estate. There is no adequate remedy in the probate court. The contention that the complainants should file a claim against Margaret’s estate for this money — especially that found in the feather bed, which was converted by Patrick, and never became a part of Margaret’s estate — does not impress us as just. We see no reason for asking the heirs of Margaret to make good the embezzlements of Patrick simply because he chances to be the administrator of Margaret’s estate; and while, as to the other moneys which have become a part of her estate, it may be that, had a claim been seasonably filed, relief might have been had in that way (which we do not decide), it was presumably too late to present claims when this suit was begun, and we have no doubt of the jurisdiction of equity, in view of .the attendant circumstances of the transaction.

Should the complainants be denied relief upon the ground of laches ? Counsel for Peter Casserly strenuously urges this point. We have examined it, and the evidence said to show culpable negligence on the part of the complainants in not discovering Andrew’s death earlier, and feel that it would be unjust to apply such a rule. It is plain that Margaret’s estate includes a large part of complainants’ share of their uncle’s estate. There is no equitable reason for giving it to the Casserlys. It has not been paid over to them, and, so far as appears, is intact, and within reach of the court. Beyond this, Patrick has a large sum that he has never accounted for, if there is any truth in the story about the money found in the feather bed. Why he should not justly account for this in this or some other proceeding does not satisfactorily appear. We think he should. We appreciate the contention that equity should not be used as an appellate court to review probate and other proceedings, especially proceedings at law; and not only is such appellate jurisdiction not entertained in this case, but the jurisdiction of equity is ample in this case because of the fraud which has been practiced in and upon such courts and these complainants, which is a proper subject for equitable cognizance. In this connection we may add that the statute providing for appeals from probate courts has no application. This is not an appeal. There is, therefore, no force in the claim that the suit is barred by a statute of limitation.

How much should Patrick and the estate of Margaret be held accountable for to the complainants ? The discussion of this question may call for allusion to some additional facts not hitherto stated.

(a) The Real Estate. There can be no doubt that the complainants are entitled to an undivided half interest in the real estate of Andrew C. Green, as the trial court held. Upon the death of Andrew it descended to Margaret and the complainants in moieties. They became tenants in common, and there is perhaps nothing that would justify us in saying that Margaret ousted them, or denied them their rights therein; and we do not discover anything that shows that her estate received the rents and profits; and we fail to find that complainants make a claim for rent accrued, though they do claim one-half of the rental value while their rights were denied by defendants. We think that they are entitled to this from the time that their bill was filed, viz., December 12, 1898, to the date of this decree. The rental value was shown to be $28 per month, one-half of which is $14, and the computation should be made upon that basis. This would amount to $770. Interest should be allowed for the average time at 6 percent., which amounts to $101.70, and from the aggregate —$871.70—should be deducted the sum of $50, which we estimate to be the value of necessary repairs, leaving a total of $821.70 for this item.

(b) The Account in the Andrew O. Green Estate. The final account in the Andrew C. Green estate, as-allowed, shows $15,679.37 paid over to Margaret Green. Of this, $1,000 should be deducted as and for her allowance. It is claimed that a further sum of $300 should be deducted for allowance, but we think 3 Comp. Laws, § 9322, subd. 2, is a sufficient answer to this claim. Deducting this $1,000 leaves the total amount received by Margaret as heir and distributee $14,679.37, one-half of which, $7,339.69, rightfully belonged to the complainants. This sum is a rightful charge upon the estate in the hands of her administrator.

(c) The next item consists of various sums of money found by Patrick about the house, under the floor, etc., exclusive of money alleged to have been found in the feather bed. This subject was litigated between the Casserlys, and was included in the amount found to be due to Margaret’s estate from Patrick, the administrator, forming a part of the verdict for $23,774.72 as a balance due-the estate, and which was ordered distributed among the Oasserlys. The learned circuit judge who heard the-cause found this sum to have been $5,918.54, and we think the testimony in this cause supports that finding. One-half of this sum justly belonged to the complainants. Margaret never received this. It was concealed and withheld by Patrick, but it was brought into her estate by the proceedings affirmed by this court, together with the interest at 6 per cent., and was included with such interest in the fund brought into court.

(d) Upon the hearing of the final account in the estate of Margaret, her heirs also insisted that Patrick, the administrator, should be charged with a sum of money found in a feather bed, alleged to have been $8,000. They were not successful in establishing that claim, and the .judge took the question from the jury upon the ground of an absence of proof. That decision does not preclude the complainants from trying the question here. The trial court included in his decree in favor of the complainants the sum of $3,017.38 for such money, including 6 per cent, interest from the date of filing the bill. We think that the complainants are entitled to one-half of the full sum of $8,000. The interest question will be considered later.

(e) In the estate of Andrew, the sum of $1,389.55 was allowed the administrator. The court in this cause was asked to review this, and disallow the item, but refused to do so. While the conduct of Patrick arouses suspicion that some of these items are excessive, if not fraudulent, it is not very clearly shown. The order will not be disturbed in fhis respect.

Recapitulation.

We find complainants entitled to the following:

(1) One-half of the real estate.
(2) One-half of the personal estate of Andrew, as fol- ' lows:
(a) Rent-............................................ $831 70
(b) Money reported Andrew's estate.................. 7,889 69
(o) House and suppressed............................ 3,959 37
(d) Feather-bed money................................ 4,000 00
$15,130 66

How much should be allowed from the fund deposited ? It is apparent that some of these items should be-paid from the estate of Margaret, represented by the deposit with the register, while at least one should be a charge against Patrick only. The items $7,339.69 and $2,959.27 were included in the verdict, with interest at 6-per cent, to the date of the verdict, and an amount sufficient to cover them, with such interest to the date of' deposit, is in the hands of the clerk. The rent of the real estate is a charge against Patrick, Peter, and James, because they have withheld the premises from complainants, and denied their right, during this litigation, and two-thirds of the amount may properly be charged against them and the fund belonging to them. On the other-hand, the feather-bed money never found its way into the assets of Margaret’s estate, and is not included in the-deposit. It should not be a charge against the estate of Margaret, or against Peter or James, but should be a. charge against Patrick.

Interest. Interest on the first two items is computed’ to the date of the deposit at 6 per cent. It amounts to-$13,148.34, and is a charge upon the fund in court. From that date it shares in the earnings of the fund. The rent money, having been withheld by the three Casserlys, is-chargeable against them. Two-thirds of it, viz., $547.80, should be a charge upon Peter’s and James’ shares of said fund. The other one-third, $273.90, cannot be a charge against that fund, for the reason that one-sixth of' the balance due the estate of Margaret — i. e., Patrick’s share — was not deposited. It is a charge against Patrick, however. The interest to July 28, 1903, is included. After that date it should draw interest at the legal rate to the date of decree, and rent at $14 per month should be added for the time intervening between that date and the date of decree. The first two items, with interest, being, included in the deposit, which was made with the approval of the complainants, will draw their proportionate share of the earnings of the fund. The feather-bed item will draw interest at 6 per cent, from October 3, 1895, the date of Andrew C. Green’s death, to the date of the decree in this canse.

The $750 Item. The complainants complain of the provision of the decree whereby they are charged with a share of the expenses incurred by Peter in his litigation with Patrick in the matter of Margaret’s estate, which, as we have seen, was a protracted matter, ending only when this court set it at rest. That litigation brought $5,918.54 into Margaret’s estate, which the complainants share. It is true that it was not done in their interest, and that Peter and James have contested their claims to any share in such estate; but they have shared in the benefits derived from that litigation. The circuit judge was of the opinion that equity required complainants to contribute to such expense, and charged them with $750 thereof. We will not disturb his finding in that regard.

The defendants Peter and James are entitled to the remainder of the deposit after satisfying the claims of the complainants as allowed against it and them, one-half to each, less $600 to Peter and $100 to James, as provided by the decree in the circuit court. Each is entitled to an undivided sixth of the real estate. They are not entitled to a decree against Patrick for a share of the money found in the feather bed; that question being res adjudicata as to them.

A decree may be taken in accordance with the views herein expressed; the decree of the circuit court being affirmed in all particulars except as modified by this opinion. The complainants will recover costs.

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


text:
    NEGAUNEE IRON CO. v. IRON CLIFFS CO.

    1. Equity Jurisdiction — Trespass—Injunction.
    A bill may be maintained by a party in possession of land to restrain one who threatens numerous acts of trespass which will work irreparable injury to the complainant.
    2. Same — Forfeitures—Leases.
    Where a lessee has abandoned the premises, and they have been held adversely by the lessor for many years thereafter, equity will recognize the forfeiture, and prevent the lessee from afterwards taking possession under the lease.
    3. Same — Parties—Dead Corporations.
    A corporation whose charter has expired by limitation is not a necessary party tó a bill seeking to restrain defendants from taking possession of lands under an old lease to the corporation.
    4. Same.
    Equity will enjoin the threatened acts of those assuming to act in the name of a dead corporation.
    5. Equity Practice — Demurrer—Jurisdiction.
    An objection that equity has no jurisdiction, because it appears from the bill that its main purpose is to enforce a forfeiture against one not made a party, should be raised by demurrer.
    6. Deeds — Rules of Construction — Intent of Parties.
    The rule- that deeds must be construed most strongly against the grantor will not overcome the plain intent of the grantor, which fairly appears from the instrument as a whole.
    7. Same.
    A deed will be construed so as to give effect to the intent of the parties, notwithstanding the technical definition of the words.
    8. Same.
    Where there is a doubt as to the meaning of an instrument, the courts will consider the situation of the parties, the subject-matter, and the acts, conduct, and dealings of the parties with respect to the instrument.

      9. Same — Exceptions.
    If a grantor retains title in himself to a part of the land described in the deed, it is an exception, and no words of inheritance are necessary.
    10. Same — Reservations.
    Where, by the language of a deed, rent or other incorporeal hereditament comes back to the grantor from the grantee, it is a reservation, and words of inheritance are essential to constitute a title to the thing reserved beyond the life of the grantor.
    11. Same — Exception oe Minerals.
    A deed and contract attached thereto, executed at the same time as one instrument, contained a provision “reserving” to the grantor an undivided half interest in all minerals, and referred to the grantor’s interest in the minerals as “his joint half interest therein.” Ini various litigation and transactions concerning the lands, the title of the grantor to an undivided half of the minerals was recognized by the parties. Held, that the grantor retained title to a one-half interest in the minerals, which would pass to his heirs without words of inheritance.
    12. Same — Right to Mine — Incorporeal Hereditaments.
    Where a deed to certain mineral lands, in which the grantor retained title to an undivided half interest in the minerals, permitted the grantee and his assigns to mine the lands for their own use, but not to sell- to other parties without accounting to the grantor for his half interest therein, the grantee obtained no title to the grantor’s interest in the ore in place, but only the right to mine for the purpose specified, which was an incorporeal and indivisible hereditament.
    13. Lease — Construction—Mining Rights.
    A mining lease containing a provision that the lessee should remove no ore except such as it should actually convert into merchantable iron in its own furnaces or forges was held to give a right to remove ore only for the furnace then existing, where it appeared that the charter of the lessee provided for only one furnace, that the corporation at that time only intended to build one furnace, and that the only consideration for the lease was the discovery and development of iron ore on the premises.
    14. Same — Abandonment.
    Where the right under a lease to mine ores is appurtenant to a certain furnace, the voluntary abandonment and destruction of the furnace by the lessee destroys the right to mine ores under the lease.

      15. Same — Estoppel.
    A corporation, after receiving a 99-year nonassignable lease, with the right to mine ore appurtenant to its furnace then existing, entered upon the lands, but, not finding ore in paying quantities, abandoned the explorations, and for 43 years made no attempt to mine the lands. Another corporation became the owner of all its stock, and carried on all its furnace business. After the abandonment of the premises, grantees of the lessor, in good faith, entered upon the lands, and spent large sums in discovering and developing valuable mineral deposits, and continued their development for nearly 30 years, without objection. Held, that the lessee was estopped from asserting its personal and incorporeal right to mine the lands.
    Appeal from Marquette; Stone, J.
    Submitted February 19, 1903.
    (Docket No. 48.)
    Decided September 15, 1903.
    Bill by the Negaunee Iron Company, Edward N. Breitung, and Mary Kaufman against the Iron Cliffs Company, the Cleveland-Cliffs Iron Company, William G. Mather, and Murray M. Duncan, to quiet title. From a decree for complainants, defendants appeal. Affirmed.
    In 1857, one James L. Reynolds was the owner in fee of the lands involved in this suit, and other lands. February 26, 1857, he conveyed to one Charles T. Harvey 4,162 acres by warranty deed. The deed, after the description, contains the following:
    “Which lands are sold with full warranty, subject, however, to tne conditions and agreements of the contract marked ‘A’ herewith appended, between the parties hereto, concerning the undiscovered minerals on said lands.”
    Then follow the usual covenants of warranty of title.
    The contract is as follows:
    “This memorandum of agreement, made this 26th day of February, by and between James L. Reynolds, of Chicago, State of Illinois, of the first part, and Charles T. Harvey, of Marquette County, State of Michigan, of the second part,

      ‘ ‘ Witnesseth, that the party of the first part has this day conveyed by ‘warrantee’ deed (to which this contract is at-' tached) to the party of the second part certain lands therein described, amounting to four thousand one hundred and sixty-two 46-100 acres, for the consideration of the sum therein named, and also in the further consideration of reserving to himself an undivided half interest in and to all the minerals which have been or may be discovered on the premises referred to as conveyed, together with the right of having or acquiring so much of the surface privileges as may be necessary to mine or develop the same by paying one-half of the equitable or appraised valuation per acre for the surface thus used or acquired: Provided not more than twelve dollars per acre shall be adjudged to be the value of unimproved lands taken for such mining purposes, besides which, however, full compensation shall be paid to the party of the second part, or his assigns, for damages which may by such mining or occupancy ensue to the business connected with or improvements placed upon such land by the party of the second part or his assigns. Such payment to be made by the party of the first part on an equitable, agreed value, or upon an appraised valuation made by disinterested ‘referees,’ one designated by each party (hereto), and they choosing a third, and the decision of the three thus chosen to be final. And, when such payment is made, he of the first part shall be entitled to enter upon and occupy any portion of said lands for mining purposes as aforesaid solely:
    “ Provided, and it is agreed, however, that the party of the second part, or his assigns, shall have the sole right, free of cost or compensation to the party of the first part, to mine for their own use, or for manufacturing purposes within the present limits of Marquette county, any mineral ores or marble found on any of the premises herein ‘referred’ to, but shall have no right to sell to other parties for exportation as aforesaid, without accounting to the party of the first part for his joint half interest therein.”
    On April 2,1857, the Pioneer Iron Company was organized by Harvey and others, with a capital of $125,000, divided into 5,000 shares of $25 each. The purpose of its organization is stated in its articles to be “procuring a suitable location for a manufactory, and lands to furnish coaling facilities therefor, in the Upper Peninsula of the State of Michigan, and’ working the same for the production of merchantable iron, and such other use of their lands as the company may hereafter determine and adopt.”
    On April 22,1857, Harvey conveyed to the Pioneer Iron Company 2,688 acres of the lands conveyed to him by Reynolds, and 800 acres of other lands owned by him. The consideration expressed therein was $25,000. After the description is the following:
    “All of which is sold subject to the reservation of minerals and conditions of using and developing and sale of the same on said lands as specified in the deed of the premises by James L. Reynolds and wife to the party of the first part; but all the interest thereby acquired by the party of the first part to the one undivided half of the minerals exported, and the privileges of manufacturing free of cost ores which may be mined on the said lands, is hereby assigned as fully as can be done by the party of the first part to the party of the second part hereto.”
    September 17, 1857, said Harvey executed an instrument (known as the “99-Year Lease”) to said Pioneer Iron Company, conveying to it “certain rights and easements hereinafter described (subject to the provisions and limitations thereto annexed) in and upon certain pieces or parcels of land.” After the description, containing 646 acres, this instrument proceeds:
    “ The rights and easements aforesaid being:
    “1st. — The right to cut and remove all the timber and wood standing or otherwise being on said lands, for the purpose of converting the same into charcoal, or such other uses as may be desirable in the prosecution of business by the party of the second part. Such wood and timber to be removed from said lands within five years from the date hereof, at such times within that period as the party of the .second part may elect, in the following order, however, viz.: After clearing its own land on section six, T. 47 N., R. 26 W., the party of the second part shall next remove the timber and wood from the land in that section herein described until it is all removed. Then it shall remove that on land in section seven herein described. Then that on section eight in like manner. Then that on section five, first clearing that on its own land in the same; and lastly that on section thirty-one, T. 48 N., R. 26 W. (This last stipulation, however, to be subject to future agreements between the parties hereto.)
    “ 2nd. — The party of the first part does hereby let, lease, and demise to the party of the second part, for the consideration hereinbefore mentioned, and for the full end and term of ninety-nine years from and after the date hereof, all the lands hereinbefore mentioned, and all other lands now owned by the party of the first part in either of the townships above mentioned, for the sole purpose of mining and quarrying, at its own expense, such ores and marble as may be found thereon, and subject to the provisions hereinafter mentioned, viz.:
    ‘ ‘ Provided, it shall not quarry, mine, or remove any ores on said lands except such as it shall actually convert into merchantable iron in its own furnaces or forges; and provided further, it shall not, in such mining or quarrying operations, use or injure any of the improvements which may be placed upon said lands by other persons without paying just and equitable damages therefor, nor shall it occupy in such operations more land than is absolutely necessary to open and work successfully such mines of iron or marble as may be discovered. And it shall purchase and pay at the rate of twelve dollars per acre for unimproved lands which it may require for such purposes. The rights and easements' above mentioned shall descend to the corporate successors of the party of the second part, but not to its assigns. The party of the first part hereby agrees and binds himself in nowise to convey or incumber any of the lands hereinbefore mentioned, except with a reservation of all rights and easements hereby secured and intended to be secured to the party of the second part. All the above rights and easements are subject, however, to the terms of a certain deed, and an agreement accompanying the same, executed by James L. Reynolds and wife to the party of the first part on the 26th day of February, A. D. 1857, and recorded in register’s office of said county in Liber B of deeds, on pages 381 and 382, to which record for further particulars reference is hereby made.”
    This lease covers the land here in dispute.
    On the same day the deed from Harvey to the Pioneer Iron Company was executed, viz., April 22, 1857, Harvey executed an instrument to the Pioneer Iron Company covering the same land as that described in the above instrument of September 17th. The rights and privileges thereby conveyed are as follows:

      “First. — The right to cut and remove all the timber and wood standing or otherwise thereon, for the purpose of converting the same into charcoal for manufacturing purposes, or such other uses as may be desirable to the party of the second part. Such wood and timber to be used and removed within five years from date, when within that period it shall suit the convenience of the party of the second part thus to do: Provided, however, that after clearing its own land in fee on section six, T. 47, R. 26, it shall next remove the timber from the balance of land in that section herein described until it is all removed. Then it shall remove that on section seven herein mentioned. Then that on section eight in like manner. Then next in succession that on section five, after clearing its own land on the same; and lastly those in section thirty-one, in township 48 of range 26 west. This stipulation, however, at all times to be subject to future agreements between the parties hereto. Provided, further, that as far as may be consistent with the interest of said company, it being the judge in these respects, the land, when the timber is removed, shall be left in a favorable condition for improvements, particularly with a view to the erection of other furnaces thereon.

      “Second. — The party of the second part shall have in perpetuity the right, free of charge (except for land damages hereinafter mentioned), to mine, obtain, and use any ores or marbles found on said lands, or on any other lands now owned by the party of the first part in either of the townships above mentioned, provided it shall not mine or obtain any ores on said lands except what it shall actually convert into merchantable iron in its own establishment. It shall also be at its own expense for mining, and shall not use or injure the improvements placed upon the lands by others without paying just and equitable damages therefor. Neither shall it be entitled to take any more land to occupy than is clearly necessary to open the mine for the iron ore or marble to be obtained readily therefrom, and shall pay twelve dollars per acre for unimproved lands which it may require.
    ‘ ‘ These privileges shall only descend to the party of the second part’s successors in corporate succession.

      “The party of the second [first] part agrees not to in any wise convey the lands mentioned, except with a reservation of these rights and privileges to the party of the second part.
    “These rights and privileges are made subject, however, to the terms of the prior deed of James L. Reynolds and wife to the party of the first part, by which he acquired title to the lands mentioned, which reservations were known prior to the executing of this indenture.”
    This instrument is known as the “Preliminary Agreement.”
    Immediately after the organization of the company, it issued a circular stating its object to be to engage solely and immediately in the production of pig iron, and its intention to confine its expenditures to the least amount necessary to enter upon the production of the single staple of pig iron. On September 26, 1859, the Pioneer Iron Company issued another circular, in which it was stated that the “cost of the two furnaces which it was thought most advantageous to erect (instead of one only, as originally contemplated), together with other unexpected outlays, had increased the expenditure nearly $30,000 beyond the capital of the company.”
    In May, 1857, the company had contracted for machinery, in June commenced the construction of its furnace, and when the 99-year lease was executed its construction was well advanced. Not long after its organization, the company made some explorations on the lands in controversy, but, discovering no ore of sufficiently good quality for use, abandoned further operations in that direction, and during its lifetime made no further effort to mine ore from its own lands for use in its furnaces. The company became financially embarrassed in 1866, and leased its own plant and all its lands and property, including the 99-year lease, to the Iron Cliffs Company, a corporation organized under the laws of this State. From that time the Pioneer Iron Company ceased to operate its furnaces.
    Shortly after the lease to the Iron Cliffs Company, that company acquired the entire capital stock of the Pioneer Iron Company, and continued to own it until after October 18, 1889. In 1867, the legislature passed an act authorizing the Iron Cliffs Company to acquire and hold stock in any company formed for manufacturing pig iron, wrought iron, or steel. On September 10,1874, the Iron Cliffs Company mortgaged all its property, including the capital stock of the Pioneer Iron Company. The debt secured thereby was paid in 1889. At various times from 1858 to 1877, Harvey conveyed by appropriate deeds various parcels of the lands to other parties. The Pioneer Iron Company also made several conveyances. From 1866 to 1890 the Iron Cliffs Company operated the furnace. Afterwards it was operated by the Cleveland-Cliffs Iron Company, a corporation organized under the laws of West Virginia, until 1894, when that company dismantled the furnace, and has never rebuilt it.
    Complainants are the owners by mesne conveyances of the mineral interests and reservations remaining in James L. Reynolds upon the execution of his deed to Harvey, and of the interest of Harvey by foreclosure proceedings upon a mortgage executed by Harvey to Edward Breitung,, the father of the complainant Edward N. Breitung, execution sales against Harvey, and a quitclaim deed, executed by Harvey, of his interests in the lands. They and their lessees, beginning about 1870, have explored each 40-acre tract covered by the above 99-year lease, and have found ore on each tract upon which the defendants have entered for the purpose of exploration; have mined ore therefrom amounting to at least 3,000,000 tons, and have expended money thereon amounting to at least $700,000. These explorations were carried on openly and notoriously for more than 20 years.
    The charter of the Pioneer Iron Company expired by limitation in 1887. No steps were taken to reorganize it until 1889. On October 7, 1889, a special meeting of the stockholders of the company was called, and the continuance of its corporate existence directed for a period of 30 years from the expiration of its former term. This action was taken under an amendment to the Constitution. On October 18th articles of reorganization were executed, and filed in the office of the Secretary of State April 8, 1890. On January 9, 1900, a notice in the name of the Pioneer Iron Company was served upon the complainants that it had entered upon certain of the lands in controversy (describing them) for the purpose of exploring for iron ore “to be used in the furnaces of the undersigned in said county, according to the grant made to the undersigned in the lease executed to the undersigned by Charles T. Harvey on the 17th day of September, A. D. 1857.” Two similar notices were served later in regard to other lands. Thereupon, on March 9, 1900, complainants filed their bill in chancery, praying that the title to their lands be quieted, the title confirmed in them, and that the defendants he restrained from entering upon said lands to mine and remove ore. Answers were duly filed, proofs taken, and decree entered for the complainants.
    Complainants, in their bill and brief, state their position as follows:
    “1. That Harvey acquired the indivisible, but not the exclusive, right to mine, free of royalty, for the purposes indicated, during his lifetime.
    ‘ ‘ 2. That this special mining privilege was terminated and extinguished by a division of the estate, both Harvey and the Pioneer Iron Company having conveyed separate portions of the land to different parties; that, while Harvey’s special privilege could be assigned as an entirety, it could not be cut up, and conveyed in separate parcels.
    “3. The 99-year lease provides that the lessee should not ‘mine or remove any ores on said lands except such as it shall actually convert into merchantable iron in its own furnaces and forges,’ thus making the right appurtenant to said furnaces and forges. The ‘furnaces and forges’ referred to have long since been dismantled and abandoned. With their destruction and abandonment the incorporeal right to mine for their use ceased to exist.
    “4. The lease provides that the rights and easements mentioned shall ‘descend to the corporate successors of the company, but not to its assigns.’ The 30-year corporate term for which the company was organized expired April 2, 1887, and all nonassignable incorporeal rights which it may have had at that time were thereby terminated. The company had no corporate successor.
    “ 5. That the Pioneer Iron Company did not for more than 10 years next preceding the 2d day of April, 1887, carry on the business for which it was organized, and therefore was not authorized by Act No. 142 of the Public Acts of 1889 to reorganize.
    “6. The Pioneer Iron Company has not been reorganized in compliance with law.”
    The defendants deny these contentions, and insist that:
    “The deed of February 26, 1857, from Reynolds, conveys a fee-simple absolute to Harvey, ‘his heirs and assigns,’ not in the surface or part of the lands described, but in ‘all the estate, right, title, interest, claim, and demand whatsoever’ which Reynolds had therein. The clause referring to contract A does not express an exception to this grant, but merely relieves from the operation of the ‘full warranty’ of the deed the rights which the parties agreed in contract A that Reynolds (not his heirs and assigns) should have, or at most amounts merely to a reservation to Reynolds of an incorporeal hereditament comprising certain undiscovered mineral rights, and the right to acquire from Harvey, as owner of the fee, certain surface privileges by paying for them.
    “The provisions of contract A, properly construed with the deed, and as a part thereof, constitute an agreement between the parties to the deed, by which Reynolds (not for his heirs and assigns) reserved to himself, or, more properly, acquired back from Harvey, certain mineral rights and rights of acquisition during his lifetime in the lands which he granted by the deed to Harvey and his heirs forever. By it Reynolds had an incorporeal hereditament (not a vested right in the land, for he had parted with all that), but a naked right to a share in minerals if discovered and reduced to possession, and a further naked right to buy back at a certain price such surface rights from Harvey as might be required to reduce such minerals to possession, if found. Harvey acquired no rights by contract A. The final proviso is not in any sense a grant from Reynolds, for he granted all he had in the deed. It merely defines the rights which Reynolds is reserving by explaining that his right to one-half the ore which may be discovered shall not require Harvey to account for ore which Harvey may use for manufacturing in Marquette county.”

      8. W. Shaull {Arch B. Eldredge, Charles B. Brown, Benton Hanchett, and H. F. Pennington, of counsel), for complainants.

      Frank A. Bell {Hoyt, Dustin & Kelley and Don M. Dickinson, of counsel), for defendants.

       A writ of error to the Supreme Court of the United States was allowed in this case on December 3, 1903.

   Grant, J.

{after stating the facts). It is urged that this bill cannot be maintained, because its main purpose is to declare a forfeiture of the 99-year lease, and that courts of equity will not enforce a forfeiture. Counsel cite in support of this contention Funk v. Haldeman, 53 Pa. St. 229; 2 Story, Eq. Jur. § 1319; Bisp. Eq. § 181; 1 Pom. Eq. Jur. § 459; Crane v. Dwyer, 9 Mich. 350 (80 Am. Dec. 87); White v. Railway Co., 13 Mich. 356. The general rule is undoubtedly as stated in Funk v. Haldeman. The statement by the court was not necessary to a decision of the case. The court held that there was no violation either of tenure or covenants of the instrument which conveyed to Punk an incorporeal hereditament in fee, namely, the right to enter upon certain lands for the purpose of prospecting, boring, and taking away ore, oil, etc., out of the earth. The claim was that Funk had subdivided that which he could only hold in entirety, and had, therefore, lost all. At the close of the opinion the court said that, if Funk had lost his rights by the subdivision, ‘ ‘ a chancellor would be likely to send the grantors into a court of law to enforce the forfeiture by ejectment; for equity does not, ordinarily, enforce forfeitures. ” The case does not hold that in no case of forfeiture may a court of equity interfere. Pomeroy states that those cases which appear to be exception's to the rule are not so in reality. Bispham says, ‘ ‘ In some cases, however, the enforcement of a forfeiture may be regarded ;n equity with favor.” Crane v. Divyer was an attempt to enforce in equity a forfeiture of a land contract, the vendee being in possession. The forfeiture sought to be enforced in White v. Bailioay Co. was similar. These cases are in accord with the general rule. See, also, Hodges v. Buell, ante, 162 (95 N. W. 1078).

The-supreme court of Pennsylvania, in Brown v. Vandergrift, 80 Pa. St. 142, stated the doctrine to be that equity “abhors a forfeiture when it works a loss, but not when it works equity, and protects the landowner against the indifference and laches of the lessee, and prevents a great mischief.” In that case the lessee agreed to keep-his lease good by a payment of $30 per month until he should commence operations, and, failing to do so, the lease was forfeited. He paid for 4 months; then failed to pay or to commence operations for 11 months. He sought to contiiiue his lease by tendering payment for the 11 months. Equity interfered, and declared the lease forfeited.

In Eberts v. Fisher, 44 Mich. 551 (7 N. W. 211), this, court, speaking through Mr. Justice Campbell, said:- “ There is no rule that equity will not recognize a forfeiture when it is only one of the incidents of a past transaction.” In that case it was held that the lease involved had expired by its own limitation, and, until renewed, had lost any efficacy.

Where a lessee has abandoned the premises, asserted no right under his lease for many years, and the lessor has been in exclusive possession, acting in apparent hostility to the lease, equity will interfere to prevent the lessee from afterwards attempting to take possession under the lease and asserting its existence. See Detlor v. Holland, 57 Ohio St. 492 (49 N. E. 690, 40 L. R. A. 266).

The bill in this case alleges exclusive possession for more than 15 years in the complainants; an abandonment by the Pioneer Iron Company of the lease for nearly 40-years ; that the Pioneer Iron Company was dead by reason of the expiration of its charter; that the right to mine ore-conveyed by the lease to the Pioneer Iron Company was appurtenant to the furnaces which it was then erecting; that said furnaces were dismantled in 1894; that no other furnace has been erected since; and that said right to mine ore, conveyed by said lease, was personal to the Pioneer Iron Company, and incapable of assignment.

We think, however, the main purpose of the bill is, not to declare a forfeiture of the lease, but to determine the rights of the parties, which depend largely upon the construction of the deeds, the leases, and the various acts and conduct of the parties, extending over a period of more than 40 years, and to enjoin a continuing trespass. The case is one peculiarly appropriate to a court of equity.

The bill sets forth three notices in the name of the Pioneer Iron Company that it had entered upon the disputed lands for the purpose of mining iron ore. It is, therefore, apparent that numerous acts of trespass and the removal of valuable ore were threatened. The defendants are not in possession. The Pioneer Iron Company, through Mr. Duncan, its alleged agent, who is also agent and manager of the defendant companies, gave notice to the complainants that they had entered upon certain of these lands for the purpose of exploring for iron ore to be used in the furnaces, according to the grant made in the 99-year lease. Under this notice and all the others there was no claim of occupancy by the defendants or the Pioneer Iron Company by adverse possession. Whether or not, under these circumstances, ejectment would lie, we need not determine. Complainants being in possession of the property, if their title is valid, irreparable injury was threatened by the defendants. Such trespasses a court of equity will enjoin. 3 Pom. Eq. Jur. § 1357; Stone v. Lumber Co., 59 Mich. 31 (26 N. W. 216); Hall v. Nester, 122 Mich. 141 (80 N. W. 982); Halpin & Co. v. McCune, 107 Iowa, 494 (78 N. W. 210); Campbell v. Kent Circuit Judge, 111 Mich. 575 (70 N. W. 141); F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162 (93 N. W. 251); West Point Iron Co. v. Reymert, 45 N. Y. 703; Oolagah Coal Co. v. McCaleb, 68 Fed. 86, 15 C. C. A. 270.

It is also urged as a fatal objection to the maintenance of the bill that the Pioneer Iron Company is not made a party. Under the allegations of the bill, and as well under the proofs, the Pioneer Iron Company is used as a “dummy ” for the benefit of the defendant companies. The defendants own, and have owned for many years, all its capital stock, its furnaces and property, both real and personal. They have managed all its affairs, and for their own benefit. All its accounts, if any have been kept in the name of the Pioneer Iron Company, have been kept upon the books.of the defendants. The defendants refused upon the trial to produce the books of the Pioneer Iron Company, or their own books showing the accounts. Some of its officers having charge of the books were produced as witnesses, and testified to the above facts. Under these circumstances, these defendants cannot escape-the consequence of their acts done in the name of the-Pioneer Iron Company for their own benefit. Admitting that the Pioneer Iron Company is not a dead corporation, yet all its property, franchise, and rights are owned by the defendant companies, so far as the rights under the 99-year lease are concerned, and are fully represented by those now before the court.

The theory of the complainants, as stated in their bill,, is that the Pioneer Iron Company is a dead corporation;, that its charter expired by limitation April 2, 1887; and that no steps were taken for some time thereafter to reorganize the corporation under the amendment to the Constitution and the law; and that that action was wholly invalid. The Pioneer Iron Company, therefore, was not a necessary party. 15 Enc. Pl. & Pr. p. 627; Hale v. Hale, 146 Ill. 227 (33 N. E. 858, 20 L. R. A. 247). Complainants could not well have made the Pioneer Iron Company a party defendant without recognizing it as an existing corporation. Its existence was in issue, and, having expired by limitation of its charter, the burden of proof was upon the defendants to show a valid reorganization, so as to make it the successor of the company, within the terms of the 99-year lease. Equity will enjoin the threatened acts of those assuming to act within the name of a dead corporation. Attorney General v. Railroad Co., 112 Ill. 520; Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y. 524.

The further answer to those objections to the jurisdiction of the court is that they should have been raised by demurrer. The facts upon which they are based are apparent upon the face of the bill. The defendants, having answered, put the case at issue upon the merits, and taken proofs upon that issue, cannot now raise the question of jurisdiction. F. H. Wolf Brick Co. v. Lonyo, supra; Le Roy v. Platt, 4 Paige, Ch. 81; Livingston v. Livingston, 4 Johns. Ch. 290 (8 Am. Dec. 562); Waterloo Mining Co. v. Doe, 82 Fed. 45, 27 C. C. A. 50.

Construction of Deed from Beynolds to Harvey. Whatever interests in the lands Reynolds reserved in himself, which were assignable by him or descendible to his heirs, the complainants own by appropriate deeds. Whatever interests are not now vested in the Pioneer Iron Company by the 99-year lease are also owned by complainants by appropriate conveyances from Harvey. The first important question, therefore, is, What interest did Reynolds convey to Harvey, and what did he retain in himself ?

Defendants invoke the rule that deeds must be construed most strongly against the grantor. This rule cannot be invoked to defeat the intent of the grantor fairly gathered from the four corners of the instrument. Resort to this rule will only be had when other rules of construction fail. Swan v. Morehouse, 6 D. C. 228. Deeds are contracts, and, when courts can ascertain from the deed itself the intent of the grantor, the deed will be construed so as to give that intent effect, and that intent will be carried out “as the mass of mankind would view it,” and not in accord with the technical definition of the words. A dispute raised between parties as to the meaning of the language of an instrument does not of itself create a doubt so as to admit the application of the rule defendants invoke. Therefore the definition agreement, dated February 1, 1871, between Reynolds and Harvey, specifically stating what interest Reynolds conveyed and what he retained (which agreement is referred to hereafter), does not of itself show a doubt as to the meaning of the deed which the court will recognize as a reason for applying the rule. If there is a doubt as to the meaning, courts will consider the situation of the parties, the subject-matter of the transaction, the acts, conduct, and‘dealings of the parties, in determining the meaning of any particular clause. These rules of construction have been recognized and applied, by this court in many cases. Paddack v. Pardee, 1 Mich. 421; Norris v. Showerman, 2 Doug, 16; Bronson v. Green, Walk. Ch. 56; Vary v. Shea, 36 Mich. 397.

It has often been held that to “reserve ” means an exception, and to “except” means a reservation. These words are not controlling, but will be construed in the light of the entire language of the deed. If the grantor, no matter what the words may be, retains in himself title to a part of the land described in the deed, it is an exception. In such case words of inheritance are not necessary to retain in him the title for himself and his heirs. This is reasonable, because the deed did not purport to convey the title to the part excepted, nor to devest him of it. Whatever is excluded from the grant by exception remains in the grantor as of his former title or right.” Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 321. Where, however, the language constitutes a reservation,'— i. e., “ when the thing which is to be the grantor’s comes back to him from the grantee in the nature of a grant,” such as rent, or other strictly incorporeal hereditament,— words of inheritance are essential to constitute a title to the thing reserved beyond the life of the grantor. 3 Washb. Real Prop. (5th Ed.) 465; Lathrop v. Elsner, 93 Mich. 599 (53 N. W. 791), and authorities cited; Marvin v. Mining Co., 55 N. Y. 538 (14 Am. Rep. 322); Sloan v. Furnace Co., 29 Ohio St. 568; Whitaker v. Brown, 46 Pa. St. 197; Foster v. Runk, 109 Pa. St. 291 (58 Am. Rep. 720).

The contract referred to in the deed is as much a part of the deed as if its provisions were incorporated in the deed, and the two will be construed as one instrument. Reynolds did not convey the entire fee to Harvey, and then repurchase by the contract a certain interest in the lands.

Applying the above rules, we find no difficulty in construing the deed. It is entirely clear that Reynolds intended to convey a certain interest in the land to Harvey, and to retain the residue in himself. He carved the estate into two parts, conveyed one, and retained the other. One of the express considerations is “ reserving to himself an undivided half interest in and to all the minerals which have been or may be discovered on the premises referred to as conveyed.” Again, in the proviso, where Harvey is required to account for ore mined and sold not for his own use or for manufacturing purposes, Reynolds’ interest is described as “his joint half interest therein.” This language is susceptible of but one construction. It clearly shows that Reynolds conveyed to Harvey the title to one-half of the minerals, and retained the title to the other half in himself. The deed and contract were executed simultaneously. Harvey had nothing to grant till the delivery of his deed. When the deed was delivered, his contract was made a part of it, and he took only what the deed and contract, construed as one instrument, gave him. Reynolds burdened his half interest by conveying to Harvey the right to take without compensation any ore he might find and mine upon the premises for his own use, or for manufacturing purposes within the limits of Marquette county.

Some question subsequently arose between Reynolds and Harvey as to the true construction and effect of the deed, and therefore, on February 1, 1871, they executed an agreement known as the “ Definition Agreement,” in which, among other things, it was “ declared and agreed that by said deed James L. Reynolds conveyed to Charles T. Harvey, his heirs and assigns, the entire surface of the lands described, and an undivided one-half of the minerals therein; reserving and excepting to the said Reynolds, his heirs and assigns, the other undivided one-half of said minerals, together with certain rights and easements in the surface as appurtenant to said mineral right.” This agreement was duly recorded March 7, 1871. It is not, of course, binding upon the defendants. It is, however, valuable as showing the understanding of Mr. Harvey, the witness upon whom the defendants largely rely to maintain their case, outside of their claimed construction of the instruments involved, without considering any extrinsic evidence.

In 1879 the Negaunee Iron Company filed a bill in chancery in the circuit court for the county of Marquette against Edward Breitung and others, asserting that “no estate of inheritance or other interest capable of being transmitted by inheritance, devise, or assignment” was reserved by or remained in said James L. Reynolds after the said conveyance to Charles T. Harvey of February 26, 1857, and prayed that the title of the complainant might be quieted as against the claims of Reynolds’ heirs. Answer was duly filed, proofs taken, and the bill dismissed. The decree dismissing the bill was entered November 20, 1880. No opinion was filed, and the decree did not state the reason for dismissing the bill. The sole question, however, involved in the case was the construction to be placed upon that deed. It seems clear that the bill could not have been dismissed without determining this question. No appeal was taken, and the parties to that suit — the complainants here — have evidently acted upon the faith of that decree, and have expended very large sums of money in the purchase of these lands, in exploration, and the erection of mining plants. Complainant Breitung bought certain interests for which he paid $45,000, and his father bought the interest of Reynolds’ heirs for $55,000. Several mining corporations have been organized, and valuable mines opened by them, upon the faith of the.validity of complainants’ title. While that decision may not bind the Pioneer Iron Company and the defendants, yet it is entitled to great weight, as it stood unquestioned for 20 years, and must have been known to the officers of the Pioneer Iron Company and these defendants.

In 1889 the Arctic Iron Company filed a bill in equity against the Pioneer Iron Company, alleging the ownership by them as tenants in common of the minei'als upon certain lands covered by the 99-year lease. The bill alleged that the Arctic Iron Company was the owner of the undivided half of the minerals, but that the title of said company was subject to the right of the Pioneer Iron Company to mine for its own use, or for manufacturing purposes within the county of Marquette. In its answer the Pioneer Iron Company averred that its ownership was subject “ to the right of the said complainant [the Arctic Iron Company] to an undivided half of all the minerals which may have been heretofore discovered thereon or may hereafter be discovered thereon.” This is a direct and solemn recognition in writing that Reynolds retained the title in fee to one-half of the minerals by his deed to Harvey.

Shortly before defendants served their notices in the name of the Pioneer Iron Company of entering upon said lands under the 99-year lease, they applied to complainants for options or leases, being refused which they attempted to enter under the 99-year lease. The conduct, therefore, of these defendants, is consistent only with the theory that they recognized the title to an undivided half of the minerals to be in these complainants.

The Construction of the 99-Year Lease. By the deed from Reynolds to Harvey, Harvey acquired the sole right to mine for himself and his assigns, free of cost or compensation, for the purposes specified. The right was an incorporeal and indivisible hereditament in Reynolds’ undivided half interest. It gave Harvey no title to the ore in place. The word “ sole,” in the term “sole right,” is not used in the sense that it excluded Reynolds from the right to mine, for the deed expressly conferred that right upon him. It is descriptive of the right Harvey had in the ore, and excludes any other right thereto in him. The 99-year lease conveyed to the Pioneer Iron Company only an indivisible, incorporeal, and personal right to mine ore, and then only for such as it should actually convert into merchantable iron at its own furnaces or forges. It granted only certain rights and privileges for a specific purpose. It prohibited assignment, and the mining of ore for furnaces not owned by the company. It was not exclusive of the right of Harvey, his heirs and grantees, to mine for ore. Such rights may be assigned or conveyed in entirety, but not in severalty. “They may be appurtenant to another piece of land; as, for example, to a furnace property.” Barr. & Adams, Mines, p. 53; Silsby v. Trotter, 29 N. J. Eq. 228; Gloninger v. Coal Co., 55 Pa. St. 9 (93 Am. Dec. 720); Harlow v. Iron Co., 36 Mich. 105, 131, and authorities cited; Van Rensselaer v. Radcliff, 10 Wend. 639 (35 Am. Dec. 582). Whether the effect of the conveyances made by Harvey to the Pioneer Iron Company and to others effected a division of this incorporeal hereditament, we find it unnecessary to determine, as the case will be disposed of on other grounds.

Was this right to mine ore under this lease appurtenant to the furnace then existing? It is true that the lease itself does not in express terms limit it to the then existing furnace. We must, therefore, look to the situation of the parties, the object in contemplation, and the surrounding circumstances, in determining thq question. The lease speaks in the present tense. The furnace, with its two stacks, was then in existence. If, instead of the lease, Mr. Harvey had made a contract on September 17, 1857, to supply the furnace or furnaces of the Pioneer Iron Company with iron ore sufficient for its use, clearly such contract would be held to mean’the furnace or furnaces as it or they then existed. If A. enter into a contract with B. to supply B.’s flouring mills for a series of years with sufficient wheat to keep them running, and B. have two mills, clearly the contract would mean that A. should supply B. with wheat for the mills then erected, and not for the mills he might thereafter erect. The same rule would hold if B. obtain from A. the right for a series of years to enter upon A.’s land and raise wheat for use in his mills. Harvey and the Pioneer Iron Company were dealing with things as they existed, and not with things that might exist thereafter.

The preliminary agreement executed at the same time of the deed by Harvey to the Pioneer Iron Company limited the right to use the ores mined “to its [the Pioneer Iron Company’s] own establishment.” A furnace may have one stack or more, in which case it is sometimes called furnaces, and sometimes a furnace with stacks of a specified number. The Pioneer Iron Company’s articles of association provide for only one furnace. They state the purpose for which the corporation was organized to be that “ of procuring a suitable location for a manufactory, and lands to furnish coaling facilities therefor, in the Upper Peninsula of the State of Michigan, and working the same .for the production of merchantable iron ” In each of the three written instruments, viz., the preliminary lease, the articles of association, and the 99-year lease, different terms are used interchangeably, meaning the same thing, viz., a furnace for the manufacture of pig iron. The ^circulars sent out by it on the formation of the company refer to but one furnace. If the above facts were insufficient to establish the character of the furnace with reference to which the parties contracted in the lease, its character is conclusively established by the contract made April 25, 1857, by the Pioneer Iron Company with the Jackson Iron Company,-by which the latter agreed to supply the former with ore for the manufacture of pig iron. It was recited therein that the Pioneer Iron Company proposed “to erect and build a blastfurnace establishment of one or two stacks for manufacturing pig iron near the Jackson Iron Mine.”

Is it reasonable to suppose that Harvey intended to confer upon the Pioneer Iron Company the right to erect as many furnaces as it chose, and obtain ore for them all from this land ? If this he the construction of the lease, then Harvey conveyed to the company the right to use all the ore found in his land, provided it could erect enough furnaces to use it. It is unreasonable to hold that such was the intent of the parties. The undoubted consideration for this lease was the exploration and development of iron ore upon the lands by the company, the discovery and development of which would redound to the benefit of the lessor. There must have been some consideration moving from this company to Harvey to induce him to make the lease, other than the nominal consideration expressed in it. The learned counsel for defendants attempt to show that the $25,000 paid for the deed was also the consideration paid for the lease. The record fails to establish any such claim. On the contrary, it conclusively appears that the standing timber upon the lands conveyed by the deed was then worth more than the $25,000, the consideration expressed therein and paid. Furthermore, Harvey, one of the company’s incorporators, its agent and its witness, testified positively that but one furnace was in contemplation when the articles of association and the 99-year lease were executed. We therefore conclude that the Pioneer Iron Company contemplated, provided for, and erected only one furnace, with two stacks; that the parties contracted with reference to that furnace; and that the mining right conveyed was appurtenant to the furnace.

By the voluntary act of the defendant companies, who, since 1866, operated it, the furnace was dismantled in 1894, and totally destroyed. It has never been rebuilt, and there evidently was no intention to rebuild it. The abandonment and destruction of the furnace also destroyed the appurtenant right to mine the ore under the lease. Nothing was left for the right to be appurtenant to. When the principal is destroyed, the appurtenant rights go with it; or, as one author puts it, “when the substance disappears, its shadow vanishes.” Day v. Walden, 46 Mich. 575 (10 N. W. 26); Jones v. Van Bochove, 103 Mich. 98 (61 N. W. 342). The doctrine of abandonment is sufficiently discussed in these two cases and the authorities there cited.

Soon after the execution of the 99-year lease, the Pioneer Iron Company made some explorations upon certain portions of the land covered thereby, found ore, but not in paying quantities, abandoned the explorations, and for full 43 years made no other attempt to avail itself of this mining right. In 1866 it conveyed to the Iron Cliffs Company by lease for a period of 10 years “ all its ironworks, buildings, lands, and rights,” etc. (reserving, however, certain rights and privileges not necessary to mention ), and provided by the lease that dividends should be paid directly to its stockholders, rather than into its treasury. The Iron Cliffs Company afterwards became the owner of all its -stock, and thereafter carried on the furnace business. The Pioneer Iron Company never thereafter took any control of its furnace. It was regarded as merged in the Iron Cliffs Company. So notorious was this that, in the year 1877, the commissioner of mineral statistics, in his first annual report, speaking of this company, said: “The Pioneer Iron Company, by whom the furnace was built, became subsequently merged into the Iron Cliffs Company.” In subsequent reports it was referred to as “absorbed by the Iron Cliffs Company.” The officers of the Pioneer Iron Company thereafter neither made nor filed any reports as the law expressly required them to do. Meanwhile, commencing about the year 1870, the grantees of Reynolds and Harvey, through themselves and other parties, spent large sums of money in exploration, and discovered in subsequent years valuable deposits; mining corporations were formed, and leases made to them, and valuable mines developed by them; during all of which time the Pioneer Iron Company stood by in silence, asserting no right under its lease. Whether such nonuser amounted to an absolute abandonment, under the rule in Dayr. Walden, supra, we need not determine. That leases of this character may be abandoned and forfeited by nonuser is established in Porter v. Noyes, 47 Mich. 55 (10 N. W. 77), at least as to those who have purchased or leased from the lessor, entered upon the land, developed mines, and made valuable improvements. There is certainly force in the claim that a personal, unassignable, and incorporeal right to take ore appurtenant to a furnace is abandoned by the failure to exercise that right for 43 years; especially where the right was once exercised and abandoned. Whatever may be the rule as between the lessor and the lessee where neither has taken any steps to exercise the right to mine, as between such lessee and subsequent lessees and grantees of the lessor, who have in good faith expended large sums in developing mines, the lessee is estopped to assert his personal and incorporeal right. In an opinion obtained by the complainants in 1890 from Mr. W. P. Healy, a lawyer, who was once interested in these lands, he said: “I am also clear that the Pioneer Iron Company can never enter' and appropriate the discovery of another. They cannot stand by until others have discovered a valuable deposit of ore, and then commence mining a portion of it, ” — which opinion meets our approval. The case of East Jersey Iron Co. v. Wright, 32 N. J. Eq. 248, is similar in many respects to this case, and the language there used is equally applicable here:

“There are persons who will stand by and see large expenditures incurred in such operations, intending, if the venture turns out successful, to set up a claim, but, if otherwise, to have nothing to do with it. Such persons have no right to the aid of a court of conscience.”

The charter of the Pioneer Iron Company expired by limitation April 2, 1887. The Constitution, at the date of its organization and at the expiration of its charter, expressly prohibited the organization of corporations beyond the period of 30 years. No provision then existed, either by the Constitution or by the statute, authorizing a reorganization of corporations which had expired by limitation. A constitutional amendment was adopted in 1889, authorizing the legislature to provide by general laws for one or more extensions of the term of such corporations, and also for the reorganization “for a further period, not exceeding 30 years, of such corporations whose terms have expired by limitation, on the consent of not less than four-fifths of the capital.” Const. Mich. art. 15, § 10. Pursuant to this authority, the legislature, in 1889, passed an act authorizing such reorganization. 2 Comp. Laws, § 703$. Very important questions are raised by counsel as to the effect of this reorganization statute, the validity of the act of reorganization by the Pioneer Iron Company, as to whether the Pioneer Iron Company was in position to avail itself of this statute, and also the effect upon the 99.-year lease should the reorganization be held to be valid. Inasmuch, however, as these questions are not essential to a decision of the case, we refrain from determining them.

Decree affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    DONALDSON v. DONALDSON.
    1. Divorce — Appeal—Evidence.
    An examination of the testimony in this case does not show that the decree of divorce granted by the circuit judge, who heard the witnesses, should be reversed.

      2. Same — Alimony
    A wife whose husband has obtained a divorce from her on the ground of cruelty is not entitled to more than $250 alimony, where it appears that his real property is worth $2,500, and is mortgaged for $1,000, that he has but a small salary and but little personal property, that there are no ohildren the issue of the marriage, and that she has not assisted in the accumulation of his property.

      Appeal from Muskegon; Russell, J.
    Submitted April 8, 1903.
    (Docket No. 5.)
    Decided September 15, 1903.
    ■ Bill by John J. Donaldson against Lorene Donaldson for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      C. W. Sessions, for complainant.

      Gross & Lovelace, for defendant.
   Moore, J.

In this case each party is seeking a divorce from the other, — the complainant upon his bill of complaint, the defendant upon her answer in the nature of a cross-bill. The ground, of divorce alleged in each case is extreme cruelty. The proofs were taken in open court. A decree was granted to complainant. Defendant was given the household furniture, $250 alimony, and the costs, and was required to release her interest in complainant’s real estate. She brings the case here by appeal, claiming the decree should have been granted her upon her cross-bill, and that a larger amount of alimony should have been decreed to her.

The record shows complainant was 37 years old. The defendant is 11 years younger. Complainant married his first wife in 1899. Six months later, on January 25,1900, he obtained a decree of divorce from her. In June, 1900, the parties to this litigation got acquainted with each other. The defendant was then the mother of four small children, living apart from her husband, from whom she obtained a divorce on the 24th day of October, 1900. On the 8th of November, 1900, she married the complainant. They commenced quarreling the next day, and, according to the testimony of each of them, the quarrel was almost continuous until this bill was filed, the 9th of October, 1901. According to the testimony of the husband, the wife, without occasion, accused him of unchastity, and called him vile names, and made life perfectly miserable for him. According to the testimony of the wife, the conditions were completely reversed. Her testimony is that, without occasion, the complainant was jealous of her, and called her vile names. She claims he agreed to support her two little girls by her former husband, and refused to do so. Testimony that covers nearly 150 pages in the printed record was taken in open court. It is not possible to harmonize this testimony. Some one is not telling the truth. It is a case where it is especially desirable to see and hear the witnesses, to observe their manner of giving testimony, their candor or lack of candor, their intelligence or lack of intelligence. There are many aids possessed by the judge who hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page. The case made by the testimony offered on the part of the complainant, if believed, justifies the decree made by the circuit judge. On the other hand, if this testimony was untrue, and the defendant and her witnesses told the truth, the defendant should have been granted a decree upon her cross-bill. The question involved is purely a question of fact. It would profit no one to go over this evidence in detail. After a careful reading of all of the voluminous record, we are not prepared to say the circuit judge erred in granting the decree as he did. Nicholas v. Nicholas, 50 Mich. 162 (15 N. W. 64); Cummings v. Cummings, 50 Mich. 305 (15 N. W. 485); Warner v. Warner, 54 Mich. 492 (20 N. W. 557); Karreman v. Karreman, 122 Mich. 654 (81 N. W. 576), and the many cases cited in the last-named case.

It is claimed a larger sum should have been allowed as alimony. The testimony upon which a court would be justified in acting shows the complainant owns real estate worth $2,500, upon which is a mortgage of $1,000. He has almost no personal property. He is earning a small salary. There is no child living the issue of this marriage. He is in debt several hundred dollars. The parties lived together less than a year. Defendant contributed nothing towards the accumulation of the little property possessed by the complainant. This being the situation, we are not inclined to disturb the decree. It is affirmed.

The other Justices concurred.