text:
    DILLS v. LA TOUR.
    Wills — Construction—Estate Devised.
    A husband devised and bequeathed to his wife all of his property for her life, “to do and dispose of the same as fully as” he might do, giving her the right to convey by warranty deed, but providing that, if any property should be left at her death, it should go to certain others. Held, that the wife tools; a fee. Jones v. Jones, 25 Mich. 401, followed.
    Error to Monroe; Lockwood, J.
    Submitted February 4, 1904.
    (Docket No. 81.)
    Decided March 29, 1904.
    Ejectment by Charles Dills against Henry La Tour and wife. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Willis Baldwin and John O. Zabel, for appellant.

      Bandall & Corbin and Charles A. Golden, for appellees.
   Carpenter, J.

This is a suit in ejectment. Erastus Dills died December 28,1901, owning the land in controversy. He made a will, which was duly admitted to probate, bequeathing to his wife—

“All my property, both Real and Personal, * * * For and during Her natuaral life, to do and dispose of the ■same as fully as I mint do wer I alive, And further to give to her the right to give a good and sufficient Warenty Deed to any and all of the Real Estate in my possession at the time of my dismisel. And should there be any of the above property left at the time of my wife’s dismisel, then and the property is to go the hers of Our bodies, if ther be any, In Equal shares. And I hereby appoint Catherine,Dills, my wife, the sole executrix of this, my last will and testament.”

But one child ■ was born to Erastus and Catherine, and that child died before Erastus. Catherine did not dispose #of the land during her life, but on her death bequeathed the same to the first-named defendant by a will which was duly admitted to probate. Plaintiff is an heir at law of said Erastus. The determination of the controversy depends upon whether or not Catherine took an estate in fee under said will. The circuit court decided that she did, and rendered judgment for the defendants.

We think this case indistinguishable from Jones v. Jones, 25 Mich. 401. We quote from the opinion in that-case:

“ The instrument first provides for the payment of debts and funeral and administration expenses, and then goes on in these absolute and emphatic terms :
“‘I give, devise, and bequeath my estate, real, personal, and mixed, of every nature whatsoever, and wheresoever situated, to my beloved wife, Thankful B. Jones, to have, hold, use, and enjoy the same as she may see fit, and in all respects the same as though it washers absolutely, and'without any limitation or reversion, for. and during her natural life.’
“A clause immediately follows for an equal distribution of what should remain among the parties to this cause, such distribution, however, to be deferred until after the death of Mrs. Jones. But this is succeeded by another, which bears upon and complements the first, and should be read in connection'with it. The testator, seeming to think that-the first provision, as written, was not as full, complete, and absolute as he desired, superadded the following:
“ ‘ If my said wife shall desire to make sale of any of mysaid real estate, in her use and enjoyment of it during her life, it is my will and desire that she have, and I hereby give her, full power and authority to make such sale, and to give all necessary deeds of conveyance thereof, and to receive the consideration therefor, to be used as aforesaid by her during her life.’
“These clauses, taken together, seem intended to give unlimited power of conversion and disposition, and to authorize the widow to do with the property as with her own. The testator’s idea, as he has conveyed it in these-passages, of use and enjoyment of the property, included consumption of the substance; and we think it must be held that an absolute property in the whole estate was given to the widow, unless the clause which refers to a remainder compels a different result. That clause is as follows:
“ ‘And. after the death of my said wife, it is my will that my estate, real, personal, and mixed, that shall remain, should be distributed in manner following, to wit: One-fourth of it to my brother, Cyrus Jones; one-fourth of it to my nephew, Lawrence E. Prindle; one-fourth of it to the Society of Spiritualists of Grand Rapids, Kent county, Michigan; * * * and*the remaining one-fourth of said estate I desire that my said wife shall dispose of as ■she sees fit; the division, however, not to take place until after her ■death.’
“When we look at this clause in connection with the •others, we observe that the forms of expression as to the disposition are different. This clause speaks of a distribution of some future remainder or remnant, as though the testator had not in his mind the idea of a present positive gift. The other clauses, however, contain positive .language, as though the testator was then giving. In both he says ‘ I give.’ There are some other peculiarities of phraseology which lead the same way. But, without dwelling upon verbal singularities, I think the apparent purpose to give an absolute, unconditional gift and power of disposition to his wife, who was the primary object of his care and solicitude, is not affected by the clause last quoted. If this clause should be considered as covering -a gift of what should remain, it would be void, as inconsistent with the absolute estate, or jus disponendi, previously given. Pinckney v. Pinckney, 1 Bradf. Sur. 269, and authorities there cited; Hale v. Marsh, 100 Mass. 468, and cases there cited. I think, however, the clause was not meant to cover a gift, but was intended simply as the expression of a wish by the testator as to the manner in which, and the parties to whom, the unspent remainder of his estate, if any, should be distributed. He evidently anticipated that his wife might not consume the whole, and he therefore recommended such disposal of it as he most favored.”

Argument is unnecessary to extend the reasoning in that case to the case at bar.' It is contended that the authority of this case has been shaken by subsequent decisions of this court. Ireland v. Parmenter, 48 Mich. 631 (12 N. W. 883). In this case property was bequeathed to the testator’s widow, and on her decease to his sons. The widow was not given full and absolute power of disposition. It was held that she took only a life estate. Clearly, this case is in no way inconsistent with Jones v. Jones.

It is contended that Gadd v. Stoner, 113 Mich. 689 (71 N. W. 1111), is inconsistent with Jones v. Jones. There the will bequeathed to the widow of the testator a life estate, with power to sell. The will indicated, however,, and the court held, that the power of sale was not unlimited, but was limited to a specific purpose; the court saying:

“ The question is whether the power which follows [the power of sale] was intended to be unlimited, or limited to' specific purposes. We think it was not unlimited. The testator has manifested an intention of charging his entire estate with the burden of the care of his wife, has given her a power of sale and reinvestment with that end in view, and has just as distinctly manifested the purpose that the residue shall go to certain named legatees.”

It was accordingly held that the widow took a life estate, with a limited power to sell. It is clear that that case is consistent with Jones v. Jones, the authority of which it fully recognized.

We feel ourselves bound by Jones v. Jones, and it would be unprofitable to consider the decisions of other States, which, it may be, as plaintiff’s counsel contend, announce an opposing doctrine.

The judgment of the court below will therefore be affirmed.

Moore, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., took no part in the decision.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    MONAGHAN v. AUDITOR GENERAL.

    State Tax Lands — Sale—Redemption by Owner.
    Relator was the owner of the original title to certain lands sold as State tax lands and as delinqnent lands at the same sale. (1 Comp. Laws, §§ 3902, 3903.) Before the expiration of the period of redemption for the delinqnent lands (1 Comp. Laws, § 3897), he applied to the auditor general to redeem as against the State tax bids and title as well as the delinquent purchase. Held, on review of the various provisions of the statutes, that State tax lands sold by the county treasurer at the annual tax sale are subject to redemption by the owner within the time fixed for redemption of delinquent lands.

      Mandamus by John Monaghan to compel Perry P. Powers, auditor general, to permit relator to redeem from a tax sale.
    Submitted March 1, 1904.
    (Calendar No. 20,374.)
    Writ granted March 29, 1904.

      O’Brien & Francis, for relator.

      Charles A. Blair, Attorney General (Charles W. McGill, of counsel), for respondent.

       Rehearing denied December 22, 1904,.

   Hooker, J.

Section 79 of the tax law(l Comp. Laws, § 3902) provides for the notice and sale of “tax lands held by the State,” commonly known as “State Tax Lands,” at the time and place of the annual tax sales. Section 80 (1 Comp. Laws, § 3903) provides that bidders upon such sale shall be required to purchase the land at delinquent sale, if it is on the list of delinquent lands. Section 81 (1 Comp. Laws, § 3904) provides for the issue of a certificate of sale in the same form as that prescribed in section 71 (1 Comp. Laws, § 3894) for purchasers at delinquent sale. This certificate provided for by section 71 recognizes the right of redemption. Section 82 (1 Comp. Laws, § 3905) (still treating of “tax lands held by the State”) provides that:

“After the period of redemption provided for in this act shall have expired, the auditor general, on presentation and surrender of such certificate, shall issue to the purchaser, his heirs or assigns, a deed of conveyance, except when the same has been redeemed, or has been bid off to the State for another tax; and, in case of redemption, the amount of the redemption shall be paid to such person: Provided, that such deed shall have the same force and effect as is given by section seventy-two of this act. ”

The land in controversy in this suit was sold as State tax land and as delinquent land at the same sale. Before the expiration of the period of redemption according to section 74 (1 Comp. Laws, § 3897), the owner of the original title applied to the auditor general to redeem, claiming the right to. redeem as against the State tax bids and title as well as the delinquent purchase, and deposited with the application an amount sufficient to cover the entire purchase price, charges, and penalties. The auditor general refused the application, claiming that there could be no redemption from a purchase under sections 80 and 81, and that there could be no redemption even from the sale under section 70 (1 Comp. Laws, § 3893), and wrote to relator that “the time for redemption has expired absolutely on lands held as State tax land, whether sold at the county treasurer’s office or this department.” Thereupon relator applied for a mandamus to compel acceptance of the offer to redeem. In his answer the auditor general disputes the construction claimed for sections 80, 81, and 82 as repugnant to the entire scheme of the tax law.

The attorney general claims that, by the expiration of redemption, the State, by its purchase, became vested with absolute title, and that its vendee took a similar title. We may concede the first of these propositions without being compelled to admit the latter. The purchaser takes such title as the law prescribes, and subject to such conditions as the law makes. The State, holding the lands as State tax lands, provides for their sale by the auditor general at private sale, or by the county treasurer at the annual tax sale. The latter is subject to a similar right to redeem as in other cases. See sections 80-82. The deed cannot pass until the usual period of redemption expires, and meantime the right to redeem at the auditor general’s office exists., as provided for delinquent sales under section 74. This is evidenced by the provisions of section 79, which subjects the purchaser to the provisions of section 70; by section 81, which requires a certificate similar to that provided by section 71; by section 82, which precludes the issue of a deed until the period of redemption provided by the act expires, and this period must be that mentioned in section 74, because the act provided for no other when it was passed. The State has seen fit to attach these conditions to its sale of its State tax lands, and the purchaser cannot complain.

It is said that it attaches no right of redemption to lands sold by the auditor general at private sale, and we are cited to the case of Cheever v. Flint Land Co., 134 Mich. 604 (96 N. W. 933), in support of the statement. In such cases the State has not seen fit to make such a provision, and therefore the right to redemption under section 74 does not exist. We hawe no'doubt that the legislature has power to provide for withholding deeds and allowing redemption even in those cases. In fact, it practically does, for sections 140-142 (1 Comp. Laws, §§ 3959-3961) place them in the same class as purchases at delinquent sales, by withholding a. writ of assistance until after notice and an opportunity for redemption. These sections have been added to the law since 1896. The policy of the State has always been to favor the landowner in the matter of redemption of land sold for taxes, and the sections discussed in this opinion are in line with such policy; and the fact that the State permits redemption, or a repurchase, as a condition of its sales of land for taxes, does not necessarily affect the character of its title to State tax lands, which it may perhaps sell under other laws, and convey a perfect title, -unincumbered by anything in the nature of a right to redeem or repurchase.

The writ will issue as prayed.

Mooré, C. J., Carpenter and Montgomery, JJ.„ concurred. Grant, J., took no part in the decision.


text:
    MILLIKEN v. CITY OF ST. CLAIR.
    1. Municipal Corporations — Bridges — Personal Injuries — Assumption of Risk — Negligence—Contributory Negligence; —Questions for Jury.
    Defendant city maintained an iron swing bridge over a small stream, and was required by law to guard the same, when open, by a chain or gate. Electric-light wires were carried upon iron uprights placed near the ends of the bridge, and braced from the tops to the ground about 15 feet away from, the uprights, between the sidewalk and the curb. On closing the bridge, the chain was suspended between the brace and the upright over the curb; a practice of which plaintiff had knowledge as respected a former bridge, but claimed to have no knowledge with reference to the bridge in question. Plaintiff, on a dark night, crossed the bridge, and, turning at the end to cross the street, passed between the brace and the upright, tripped over the chain, and was injured. In an action against defendant to recover for the injury, held, that plaintiff did not assume the risk attendant upon crossing the street under the brace, and that the negligence of defendant- and contributory negligence of plaintiff were both questions for the jury.
    2. Same — Common Crossing — Evidence.
    It was not error to admit testimony tending to show a common practice to cross the street at the point in question, since it bore upon the reasonableness of suspending the chain.
    3. Same — Declaration—Amendment—Continuance.
    Nor was it error to permit an amendment to the declaration to-supply an averment of due care on the part of plaintiff; and, it being a formal allegation, a continuance was properly refused.

      4. Same — Variance.
    A declaration, for injuries sustained in crossing a street at the * end of a bridge, alleging that plaintiff’s foot caught upon a chain suspended over the curb, whereby he was thrown, 'etc., is supported by proof that plaintiff- stumbled over the curb, since, in such event, plaintiff could not have fallen without getting his other foot under the chain in the spontaneous act of throwing it forward in an effort to preserve his equilibrium, which the chain would have prevented, and thereby have caused his fall.
    5. Trial — Refusal of Requests to Charge — Harmless Error.
    Where, on defendant’s own theory, plaintiff’s case is maintained, defendant is not injured by the court’s omission to give requested instructions presenting his theory to the jury.
    Error to St. Clair; Law, J.
    Submitted February 26, 1904.
    (Docket No. 112.)
    Decided March 29, 1904.
    Case by Leslie Milliken against the city of St. Clair for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Joseph Walsh and H. B. Baird, for appellant.

      Hugh H. Hart (Gyrus A'. Hovey, of counsel), for appellee.
   Hooker, J.

The defendant has appealed from an adverse judgment of $850, recovered in an action for negligence. A small stream, called the “Pine River,” is spanned by an iron swing bridge in the city of St. Clair. The electric-light wires are carried upon iron uprights placed near the ends of the bridge, which are braced from the tops to the ground about 15 feet away from the uprights, between the sidewalk and the curb. A chain is used, which is attached to the brace at the southwest corner of the bridge, and swung across to the brace at the southeast corner when the bridge is open. When the bridge is closed, the end of the chain is removed from the east brace, and sometimes attached to the upright on the west side of the street; thus suspending it between the brace and upright nearly or exactly over the curb. The attached drawing shows the situation.

On a dark night, about midnight, the plaintiff crossed the bridge on the west sidewalk, and turned to cross the street, and, passing between the brace and upright, he tripped over the chain and was injured. He admitted knowing of the practice to suspend the chain at this point while a former bridge stood there, but claimed to have no knowledge of the practice with the new bridge. The city was required by law to maintain a chain or gate to guard the drawbridge when open. Defendant introduced testimony showing that the chain was always thus suspended when not in use.

The defendant contends that there was no negligence shown, and that the plaintiff was chargeable with contributory negligence in attempting to cross the street at that point, and requested the court so to charge, but this was refused. We think that both of these questions were for the jury, and that, under the proofs, the court properly refused to instruct that the plaintiff assumed the risk attendant upon crossing the street under the brace.

There was no error in admitting testimony tending to show a common practice of crossing at the point in question. It bore upon the question of the reasonableness of suspending the chain.

The amendment to the declaration to supply a wanting allegation of due care on the part of the plaintiff was proper, and, being a formal allegation, the court properly refused a continuance.

Plaintiff’s declaration alleges that, “when crossing the street, * * * his foot caught upon a chain, * * * whereby plaintiff was violently thrown, ” etc. Defendant’s counsel claim that near to the chain was a curb, and that plaintiff tripped upon that, and that there was a variance in that particular between the declaration and the proof. They asked an instruction that:

“I instruct you that the plaintiff has alleged that his injury was caused by tripping upon a chain suspended from the bridge to the'brace. Before plaintiff can recover in this action, he must satisfy you, by a preponderance of the evidence, that the accident happened in the manner alleged by him in his declaration; and, if you should find that the accident was caused by the plaintiff tripping upon the timber spoken of in the testimony, then plaintiff cannot recover, and your verdict must be for the defendant.”

The court gave this in substance. He said:

“ I instruct you that the plaintiff has alleged that his injury was caused by tripping upon a chain suspended from the bridge to the brace. Before plaintiff can recover in this action, he must satisfy you, by a preponderance of evidence, that the accident happened in the manner alleged by him in his declaration; and, if you should find that the accident was caused in some other way, — by plaintiff tripping on some other object,- — then plaintiff cannot recover, and your verdict must be for the defendant.”

The court was asked to charge:

“ One of the claims made by the defendant is that, notwithstanding plaintiff testified that he fell over the chain, that still the surrounding facts and circumstances tend to show that this is not how the accident occurred. It is for you to determine this fact, and you are not bound by the statement of plaintiff. You have the right to consider all the testimony, and also the surrounding facts and circumstances, and draw such inferences as you think they would warrant; and, if you think the testimony of the facts and circumstances warrants the finding of the fact that the plaintiff’s fall was caused solely by tripping upon the timber, then your verdict must be for the defendant.”

This was not given, though the portion of the charge above quoted naturally suggests it. We think, however,' that defendant has no- cause for complaint. If defendant’s theory be adopted, viz., that he stumbled over the curb, it is evident that it would have been next to a physical impossibility for plaintiff to have fallen without getting his other foot under the chain, as it would have been the spontaneous act of plaintiff to throw it forward in the natural effort to preserve his equilibrium. The chain would have prevented this, and, by catching his foot under the chain, which he would have been sure to do in his effort, his fall would have been made certain, if not altogether caused. Such a finding — and no other is possible from the proof — would .be within the allegation of the declaration, and would justify a verdict. We think, upon defendant’s own theory, the case is maintained, and hence it suffered no injury by omission to give the,request.

The judgment is affirmed.

Moore, C. J., Carpenter and Montgomery, JJ., concurred. Grant, J., took no part in the decision.


author: Carpenter, J.

text:
    TABOR v. TABOR.
    1. Witnesses — Matters Within Knowledge oe Deoedent — Opposite Party.
    Complainant, as heir of his father, filed a bill against his stepmother and her daughter, a half-sister of complainant, to compel the mother to execute a second deed of real estate; a former deed having been executed and delivered to her husband, and at her instance destroyed about the time of, but before, his death. On objection that complainant was not a competent witness under 3 Comp. Laws, § 10212, prohibiting the opposite party, in a suit prosecuted or defended by the heirs, assigns, or personal representatives of a deceased perison, from testifying to matters which, if true, must have been equally within the knowledge of the deceased, held :

    (1) That complainant was not the opposite party, and the statute was not applicable; following Pendill v. Neuberger, €4 Mich. 220.
    (2) That, although the daughter was an heir, her interest lay with complainant, and, as to her, complainant was not an opposite party.
    (3) That, although in fact the mother was executrix of the estate, the suit was not defended by the personal representative of a deceased person, as she was defendant in her individual capacity, and not as exeeutrix.
    (4) That the claim, made On appeal, that the effect of the destruction of the deed was to revest the title in the mother, and thereby constitute her an assignee of a deceased person, was a claim arising from evidence introduced subsequently to that of complainant, and not sufficient to justify the claim, and could not disqualify a witness qualified at the time his testimony was given.
    2. Deeds — Delivery—Conditions.
    Evidence that a deed executed by a wife to her husband was in the custody of the grantee during his lifetime, and that, by the grantor’s consent, he claimed to be; and handled the property as, the owner, is sufficient to establish a valid delivery, notwithstanding it further appears that it was agreed, that the deed should not be recorded unless the wife should die first, and that, if the husband should die first, the deed should be destroyed and the title revert to the grantor. Dyer v. Skadan, 128 Mich. 848, followed.
    3. Same — Surrender and Destruction — Statute of Frauds.
    Where, on the delivery by a wife to her husband of a deed of her real estate, it was agreed that it should not be recorded, and, if the husband should die first, it should be destroyed and the title revest in the grantor, the surrender of the deed to the wife with intent to revest the title, the survival of the wife, and the subsequent destruction of the deed, did not effect a reconveyance, since, under the statute of frauds (3 Comp. Laws, § 9509), an interest in lands can only be transferred by a deed or conveyance in writing.
    ' Appeal from Oakland; Smith, J.
    Submitted October 21, 1903.
    (Docket No. 60.)
    Decided April 5, 1904.
    Bill by William J. Tabor against Mary O. Tabor, Mayme A. Tabor, and others to restore a destroyed deed. From a decree for complainant, defendant Mary O. Tabor appeals.
    Affirmed.

      Perry & Stockwell and James H. Lynch, for complainant.

      Patterson & Patterson, for appellant.
   Carpenter, J.

Complainant is the son of Moses E. Tabor, deceased. The first-named defendant is the stepmother of complainant, and the widow of said Moses. The second-named defendant is a daughter of the first, and a half-sister to complainant. Said defendant Mary C. Tabor executed a deed of certain property to Moses E. Tabor in his lifetime. About the time of the death of Moses E. Tabor, this deed was destroyed by defendant Mayme A. Tabor at the instance of defendant Mary.., This suit is brought to compel defendant Mary to execute a second deed which gives to complainant the rights which he would, as heir, have acquired under the destroyed deed. A decree was rendered for complainant in the court below. Defendants appeal to this court. The disputed issues relate to the delivery of said deed, the description of the property therein, and the effect of its destruction. Complainant’s case depends, however, largely upon his own testimony, and the first question to be determined is his competency to testify.

It is contended by defendants that complainant was an incompetent witness under that portion of section 10212, 3 Comp. Laws, which reads as follow's:

“"When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.”

Complainant is prosecuting this suit, as the heir of the deceased, to procúre a conveyance from the first-named defendant. The statute prevents the party opposed to the heir from testifying, which in this case would be the stepmother, but it does not exclude the testimony of the heir. See Pendill v. Neuberger, 64 Mich. 220 (31 N. W. 177). It is true that defendant Mayme A. Tabor is an heir, but, as an heir, her interest lies with complainant. As an heir, complainant is not an opposite party to her.

It is suggested that complainant cannot testify because defendant Mary C. Tabor is in fact the executrix of the estate, and therefore the suit is defended by the personal representative of a deceased person. The fact is, however, that she is defendant in her individual capacity, and not as executrix. Indeed, it would be for the interest of the estate, and her as executrix, to have complainant’s position maintained.

On this appeal, defendants’ counsel maintain that the effect of the destruction of the deed was to revest the title in the defendant Mary. If this had been the issue tried in the court below, there would be force in the contention that she was one of the assignees of a deceased person, and therefore complainant, as an opposite party, could not testify. But, when complainant testified, defendants made no such claim. The issue made by the pleadings relates to the delivery of the deed, and this was the point in dispute when this testimony was introduced. The claim that the title was revested in the defendant Mary by the destruction arose from evidence subsequently introduced, and that evidence, as we shall hereafter show, did not justify the claim. We cannot hold that an unfounded claim of this character, not raised by the pleadings, and not raised in any manner until after the testimony is introduced, disqualifies a witness otherwise qualified.

Was the deed delivered ? We think the evidence clearly establishes that the deed was in the custody of the decedent, Moses, and that, by the consent of the grantor, defendant Mary, he claimed to be, and handled the property as, the owner. The evidence convinces us that, when the deed was delivered, it was agreed that it should not be presently recorded; that, if defendant Mary died first, it should then be recorded; that if the deceased, Moses, died first, the deed should be destroyed, and the title revert to defendant Mary. We are bound to say that this agreement in no way impaired the validity of the delivery. See Dawson v. Hall, 2 Mich. 390; Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461).

It is contended that the surrender of the deed with intent to revest the title, and its subsequent destruction, were in effect a reconveyance. See Gillespie v. Gillespie, 159 Ill. 84 (42 N. E. 305); Happ v. Happ, 156 Ill. 183 (41 N. E. 39). This claim is inconsistent with the construction this court has placed upon the statute requiring a writing to transfer an interest in land. See Hayes v. Livingston, 34 Mich. 384 (22 Am. Rep. 533); Nims v. Sherman, 43 Mich. 45 (4 N. W. 434); Gugins v. Van Gorder, 10 Mich. 523 (82 Am. Dec. 55); and Stevens v. City of Muskegon, 111 Mich., at page 83 (69 N. W. 227, 36 L. R. A. 777), and the cases there cited. Moreover, the doctrine relied upon, if sound, is inapplicable to this -case. There is no evidence that the deed was surrendered by the.grantee with intent.to revest the title, or that it. was destroyed by his direction. It is true, he had agreed that the deed might be destroyed after he died. This did mot authorize its destruction before his death, and the evidence proves that it was destroyed before that event occurred.

It is contended that the evidence does not prove that the deed described the property in suit, and covered by the decree. "We think it a sufficient answer to this contention to say that it does prove that fact.

We do not think that the record raises any other question which demands discussion. The decree of the court below is therefore affirmed.

The other Justices concurred.


author: Moore, C. J.

text:
    DAWSON v. FALLS CITY BOAT CLUB.
    1. Adverse Possession — Good Faith — Instructions.
    Where, in an action of ejectment, defendant claimed title by adverse possession, it was error to instruct the jury that, in order for him to maintain such title, he must satisfy them that the land had been held by him for the statutory period in good faith; since good faith is not an element of adverse possession.
    2. Boundaries — Old Fences — Instructions.
    Where, in an action involving a disputed boundary, the evidence was conflicting as to when a particular fence was built, and whether, after it was first built, it was rebuilt on practically the same line, and defendant requested an instruction as to the evidentiary value of old fences, though the request as framed may have been properly refused, the court should have given an instruction covering that phase of the case.

      Error to Chippewa; Steere, J.
    Submitted October 23, 1903.
    (Docket No. 69.)
    Decided April 5, 1904.
    Ejectment by Carrie Dawson against the Falls City Boat Club, Eben S. Wheeler, and Clara Wheeler. From a. judgment for plaintiff, defendants bring error.
    Reversed,

      George A. Cady (John H. Goff, of counsel), for appellants.

      E. S. B, Button (John W. Shine, of counsel), for appellee.
   Moore, C. J.

This is an ejectment case. The land in. dispute is a triangular piece from a point on Portage avenue to the St. Mary’s river, where it is about 15 feet wide. The case has been here before, and is reported in 125 Mich. 433 (84 N. W. 618). After the case was affirmed here, a-second trial was had under the statute allowing a second trial in ejectment cases. If reference is made to the opinion in 125. Mich., a very brief statement of facts will answer every purpose. It is the claim of the plaintiff that the disputed strip is a part of private claim No. 106, of which she is the owner. Defendant Wheeler interposes two defenses: First, that the disputed strip is part of private claim.No. 105; second, if it is not, that he has acquired, title by adverse possession.

Error is assigned as to that portion of the charge reading as follows:

“It is also a question of fact as to whether there was-peaceable possession, as claimed; and, in order to constitute an adverse possession sufficient to give title, there must be an actual, exclusive, continuous, visible, notorious, distinct, and hostile possession of the land claimed te be held adversely for the period of 15 years continuously next before the commencement of the suit. And, in order for the defendant to retain by adverse possession the land mentioned in the declaration, or any part of it, he must, satisfy you, by a preponderance of testimony, that it has been so held, or some part of it has been so held, in good faith, for the period required by the statute; and the burden of proof, as I said before, in that particular, is upon the defendant.”

It is claimed that good faith is not an element of adverse ■possession. On the part of the plaintiff it is said defendant was claiming adversely under color of title, and that, where he is claiming adversely under color of title, good faith is an indispensable element. It is further claimed on the part of the plaintiff that because, in the plea of the defendants, it is alleged defendants are in possession of the premises, “claiming title in good faith,” they are estopped from objecting to the charge in relation to good faith. It is also said that because defendants asked the court to give requests 6 and 7, which read as follows:

“6. The undisputed evidence in this case shows that Peter Gallagher received a deed from Leonard A. Harris in July, 1879, to all that part of private land claim 105 lying between Portage street and St. Mary’s river, and that said Gallagher, in 1883, deeded the same premises to his wife, Delia Gallagher, and that she deeded the same premises to Ebenezer S. Wheeler, one of the defendants in this suit. Now, if you find that, at the time of taking ■ possession of the land described in the deeds above mentioned, the strip of land in question in this case was inclosed by a fence with the land conveyed by the deeds, and that said Peter Gallagher took possession of the same, and that he and his grantees above mentioned have exercised the same acts over that strip as they did over the lands described in the deeds, then the deeds themselves gave color of title in Gallagher and his grantees to this disputed strip, even if it was not included within the deeds.
“7. The defendant Wheeler and his predecessors, Gallagher and his wife, having color of title to the disputed strip of land by reason of the inclosure of the strip with the lands described in the deeds to them, their possession of a part of the land under the deeds above mentioned would be presumed to be a possession of the whole of it, including the disputed strip, in the absence of anything to the contrary;”

—Which were given, and asked the court, if he did not give these requests, then to give the tenth, which reads as follows:

“ Good faith' and a belief in one’s title are not necessary to obtain title by adverse possession. Adverse possession may originate in a trespass, which, if continued for 16 years, with other characteristics of adverse possession,, will ripen into title

—The judge was justified in refusing to give the last-named request, and in charging the jury as he did in the general charge. It is also claimed, though good faith is not an element of adverse possession, that, because of the other portions of the charge, the jury were not misled.

On the part of the defendants it is said the suggestion in the plea of a claim of title in good faith was put in to enable the defendants to recover for the value of improvements made by them, which claim was waived on the trial. It is also claimed that requests 6 and 7 were prepared to give the 'jury to understand that defendants’ claim under color of title would carry with it constructive possession to the disputed strip, and that nothing was done by defendants that should estop them from challenging the error in the general charge; The defendants also claim that the other portions of the general charge did not prevent the jury from being misled.

It must be conceded that, as to the question of whether1 good faith is an element of adverse possession, the authorities are not uniform. In this State the question is not now an open one. In Campau v. Dubois, 39 Mich. 274, Justice Campbell, speaking for the court, said:

“ There is also another point under the supplementary-charge to the jury which is misleading. The court charged that the statute of limitations would not run against an adverse claim unless held under claim of title. This is-incorrect. It is undoubtedly true that under the old doctrine, which made a deed void made by one out of possession of lands held adversely, the adverse holding, to produce that effect, must have been under claim of title. But, for the purposes of the statute of limitations, an ouster-by a trespasser would be as effectual as any other, if suit was not brought within the statutory period. Any intrusion may continue long enough to bar the right of entry. And if, in this case, the entry was not in right of the heirs. of Toussaint Campau, it was not their entry, and was an ouster, of which they could at once legally complain. In such case they must lose their rights unless prosecuted within the statutory period.
‘ ‘ In considering the authorities which have been cited before us, a considerable number will be found to have no direct bearing on the effect of possession as a 'foundation of defense under the statute of limitations. A difference is apparent between that peculiar hostile possession which, under the old law, rendered conveyances executed by parties out of possession void, and that which will in time, if not disturbed, ripen into a title. The former required possession to be taken under color of title. The latter might 'originate in trespass as well as in any other way. The effect of any adverse possession, as amounting to such an ouster as will set the statute of limitations in motion, or authorize a possessory action by a tenant who is excluded, is so well settled as not to be open to controversy. Doe d. Meltings v. Bird, 11 East, 49; Clapp v. Bromagham, 9 Cow. 530; Culley v. Doe d. Taylerson, 11 Ad. & El. 1008; Gordon v. Pearson, 1 Mass. 323; Wright v. Saddler, 20 N. Y. 320; Willison v. Watkins, 3 Pet. 43.”

To the same effect are Campau v. Lafferty, 50 Mich. 118 (15 N. W. 40); Cook v. Clinton, 64 Mich. 309 (31 N. W. 317, 8 Am. St. Rep. 816); Bird v. Stark, 66 Mich. 654 (33 N. W. 754); Shearer v. Middleton, 88 Mich. 621 (50 N. W. 737); Michigan Land & Iron Co. v. Thoney, 89 Mich. 226 (50 N. W. 845); Barnard v. Brown, 112 Mich. 452 (70 N. W. 1038, 67 Am. St. Rep. 432), and the many cases cited; Ward v. Nestell, 113 Mich. 185 (71 N. W. 593).

It is likely, because of the way in which requests-6, 7, and 10 were presented, the failure of the judge to give the tenth one is not reversible error; but the point involved is not failure to give the tenth request, but the giving to the jury of an instruction in relation to the question of good faith which is contrary to the decisions of this court. We have carefully considered the other portions of the charge which counsel say prevented the jury from being misled. They are correct statements of the law, but nowhere do they advise the jury that, in order to acquire title by adverse possession, the holding need not be in good faith. At nearly the conclusion of the charge the judge said:

“You are to remember that the burden is upon the plaintiff in this case, in the first instance, before she can recover, to establish where the west boundary line of private land claim 106 is, to your satisfaction, and, in that connection, to show that the disputed strip is included within that boundary. If that is established, then, taking up the question of adverse possession, you are to remember that the burden of proof is upon the defendant to show to your satisfaction, by a preponderance of evidence, the claim of adverse possession, as already explained to you;”

—Thus, in effect, repeating the objectionable portion of the charge. We think the charge as given is not in accordance with the law in this State, nor do we think it can be said this was not harmful error. See Sparrow v. Hovey, 44 Mich. 63 (6 N. W. 93); Ward v. Cochran, 150 U. S. 597 (14 Sup. Ct. 230).

Defendants’ eleventh request read, in part, as follows:

“If the government stakes are no longer discoverable, the question is not where they ought to have been located, but where they were in fact located; and upon that question it is your duty to consider as evidence the practical location of the lines, such as the building of fences built at a time when the original monuments or stakes were presumably in existence, and probably well known. As between an old boundary fence and any resurvey made after the monuments have disappeared, the fence is by far the better evidence of the actual location of the lines of the survey.”

This request was refused, and this is said to be error. It is claimed by plaintiff the evidence does not show any such fence as described in the request. The evidence was conflicting as to when the fence was built, and whether, after it was first built, it was rebuilt on practically the same line. It'was the claim of defendants there was testimony which made it necessary the jury should be instructed as to the evidentiary value of the old fence, and that their request was framed to meet that phase of the case. We are not prepared to say it was error not to give this request as framed, but we do not find that any instruction was given upon this branch of the case. In view of the fact that a new trial must be had; we regard it as proper to say an instruction should be given as to the evidentiary value of the old fence, along the lines indicated in Diehl v. Zanger, 39 Mich. 601; Beaubien v. Kellogg, 69 Mich. 333 (37 N. W. 691); Hoffman v. City of Port Huron, 102 Mich. 435 (60 N. W. 831).

We have examined the other errors assigned, but do not deem it necessary to discuss them. For the reasons stated above, the judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    CITY OF DETROIT v. LOTHROP ESTATE CO.

    Partnership Associations — Residence—Personal Taxation.
    After the death of L., leaving an estate consisting largely of real estate in various counties, including some situated in plaintiff city and some in the township of G., his heirs organized a partnership association under 2 Comp. Laws, chap. 160, for the better management of the estate, stock being issued for the respective interests of the heirs, a majority of * whom were nonresidents of plaintiff city. The articles of association provided that its principal office should be in the township of G., and an office was established therein at the Jiouse of the treasurer and principal manager, which bore a ■sign designating it as the office of the association, and at which all the meetings of the shareholders were held, and the general books of the association, including the record book, were kept. An office was also maintained in plaintiff city, where books of original entry were kept, rents collected, moneys disbursed, and the ordinary business of the association conducted. Held, that the association was a resident of the township of G., within 1 Comp. Laws, § 3834, and hence not subject to personal taxation in plaintiff city. .
    Error to Wayne; Donovan, J.
    Submitted January 13, 1904.
    (Docket No. 28.)
    Decided April 5, 1904.
    Debt by the city of Detroit against the Lothrop Estate-Company, Limited, to recover a personal tax. From a. judgment for defendant, plaintiff brings error.
    Affirmed.
    This action was brought by the city of Detroit against the Lothrop Estate Company, Limited, for the recovery of city taxes upon personal property assessed against it for-the year 1900, amounting to $3,015.35. Defendant pleaded the general issue, and gave notice that it would show that its property described in the declaration was not subject to taxation by the city of Detroit. The sole issue in the case was the residence of defendant for the taxation of personal property.
    George V. N. Lothrop died July 12, 1897. He left a large estate, including real property in the counties of Wayne, Bay, Barry, Osceola, Ingham, and Roscommon. The real estate in Wayne county was situated in the city of Detroit and the townships of Grosse Points and Spring-wells. The personal property Consisted of stocks, bonds,, notes, and a few land contracts. Mr. Lothrop’s heirs, were as follows: The children of George H. Lothrop, son, deceased; the children of Charles B. Lothrop, son, deceased; Henry B. Lothrop, son; Baroness Huene, daughter; .Mrs. William Prall, daughter; Cyrus E, Lothrop, son.
    Mr. Lothrop left a last will and testament, by the terms of which, after making certain specific bequests to the Union Trust Company, as trustee for the children of Charles B. Lothrop, deceased, the residue of the estate was. equally divided among the other heirs, the children of George H. Lothrop taking the share to which he would have been entitled if living. After Mr. Lothrop’s death, it appeared to the heirs that the specific bequest to the children of Charles B. Lothrop was insufficient to place them on an exact equality with the other heirs, and they determined to remedy this by transferring sufficient property to Henry B. Lothrop, trustee for them, to equalize the estate, thus supplementing the specific bequest to the Union Trust Company. It was also found to be difficult to make an exact divisioti of the property, on account of the large amount of real estate, some parcels of which might increase in value much more rapidly than other parcels. It was therefore desirable that for some time, at least, the property should be kept intact. It was also found to be advisable to have the property held in the name of a company, on account of the difficulty attendant upon the sale thereof by reason of the absence of some of the heirs and the minority of others. For these reasons it was decided to organize the Lothrop Estate Company, Limited, and it was accordingly organized in October, 1899, the property of the estate being transferred to it, and the interests of the several heirs being represented by certificates of stock. The respective interests were as follows: Henry - B. Lothrop, 1,811 shares; Henry B. Lothrop, trustee, 945 shares; Baroness Huene, 1,811 shares; Mrs. William Prall, 1,810 shares; William Prall, 1 share; Fannie O. Lothrop, trustee for children of George H. Lothrop, 1,811 shares; Cyrus E. Lothrop, 1,810 shares; Alfred J. Ducharme, 1 share,— total, 10,000 shares. The share of William Prall, deducted from his wife’s interest, and the share of Mr. Ducharme, deducted from the interest of Cyrus E. Lothrop, were given to them simply to enable them to act on the board of managers. At. the time of the organization of the company, Mrs. Prall was a resident of Detroit, but was about to remove to Albany; N. Y. Henry B. Lothrop lived in the village of Grosss Pointe Farms, where he held the office of assessor. Baroness Huene lived in St. Peters-burg, ' Russia. Therefore the interests represented by 6,378 shares belonged to nonresidents of the city of Detroit, and 3,622 shares to residents.

      The articles of association provided that the principal office should be at the village of Grosse Pointe Farms, in the county of Wayne. This was the home of Henry B. Lothrop, the treasurer and principal manager of the company. The office was located at the old home of the Lothrop family, the only residence of Mr. Lothrop which has been kept in the same manner as during his lifetime. Since the organization of the company every meeting of the shareholders has been held at the principal office thus established. While these meetings have not been frequent, they have been held whenever necessary. The policy of the company has been determined at these meetings, and the managing officer of the company has continuously had his residence at this office. Upon the house is a tin sign designating it as the office of the company. The company has a telephone at this office. There is a room at this house used for office purposes. The general books of the company, including the record book, are kept at this office. The company has been assessed upon its personal property in the township of Grosse Pointe ever since its organization. The purposes of the company are thus stated in its articles:
    ‘ ‘ The purposes for which this association is formed are the general management, care, and control of the real and personal property and estate now owned by the undersigned as tenants in common, and contributed (or hereafter to be contributed) by them to the association, including the selling, leasing, improving, platting, and subdividing of real estate (including any real estate taken, in part payment or exchange for any property sold or disposed of by the association), the loaning of money upon real-estate mortgages or other approved securities, the purchase and sale of interest-paying securities, and such other purposes as may be incidental or necessary to the effectual carrying out and execution of the purposes aforesaid.”
    The defendant has had an office in the city of Detroit since its organization. It employed a clerk, Mr. Marantette, who was produced as a witness by the plaintiff. The defendant owned considerable real estate in the city of Detroit, received from the estate of Mr. Lothrop, deceased, and it was necessary to employ some one in that city to look after the rents, taxes, repairs, etc. The business did not require two clerks; neither did it require the entire time of one. Mr. Marantette was clerk for the estate of George V. N. Lothrop, for the Lothrop & Duffield Land Company, Limited, and also for Henry B. Lothrop. He kept a separate set of books for each of said companies, and for Henry B. Lothrop, Mrs. George H. Lothrop, Mrs. George H. Lothrop, executrix, Mrs. George H. Lothrop, trustee, Mrs. Charles B. Lothrop, Henry B. Lothrop, trustee, and Charles B. Lothrop’s estate. To perform this work the only clerical force employed was Mr. Marantette and an office boy, and the expense of the two was divided among them. The moneys passed through the hands of the treasurer of the defendant, and through Mr. Marantette, who kept the books. Detail books are kept at the Detroit office, in which are entered the rents received, and interest on notes, bonds, and mortgages. Checks are also issued from the office for payments. The banking is done at the Wayne County Savings Bank. Mr. Marantette is simply a clerk, under the control of the directors and manager of the defendant. He testified that the bulk of the work was looking after the real estate; that the average number of entries in the books would not exceed 8 or 10 a day; that the entries relating to personal property occur twice a year, when coupons and dividends become due; that only one journal had been in use, and that was about half used, — about 100 pages, — and about as many in the cashbook. These are kept at the Detroit office. All the detail work is done at the Detroit office by Mr. Marantette, under the direction of the manager. Once a year the proper transfers are made to the books kept in the office at Gross Pointe Farms. Mr. Marantette testified that it would not take more than one day a month to do the work connected with the personal property.

      Mr. Henry B. Lothrop bad control of the personal securities. He testified that tbe farm at Grosse Pointe, where he resides, is as valuable as any piece of land the company owns; that its management requires personal supervision; that tbe lands in tbe outlying counties in tbe State are bandied by agents, who account to him, and that be carries on the correspondence with them. Tbe most of tbe business of collecting rents, making contracts, and other business transactions is done at tbe Detroit office. Tbe defendant has been assessed in Grosse Pointe township for #200,000 personal property since its organization, and has paid taxes thereon. Tbe court instructed tbe jury, in substance, that, if they found that tbe defendant transacted its principal business at Detroit, it was subject to taxation there. Tbe jury rendered a verdict for tbe defendant.

      Timothy. E. Tarsney and John W. McGrath, for appellant.

      Orla B. Taylor (John O. Donnelly, of counsel), for appellee.

      Rehearing denied June 18, 1904.

   Grant, J.

(after stating the facts). Tbe provision of the tax law under which plaintiff asserts tbe liability of tbe defendant is as follows:

“All corporate property, except where some other provision is made by law, shall be assessed to the corporation as to a natural person, in tbe name of tbe corporation. Tbe place where its office is located in its articles of incorporation shall be deemed its residence: Provided, its business is actually transacted at such office; but if it shall establish its principal office in any other place than tbe place named in its articles of incorporation, then tbe place where it ■ transacts its principal business shall be deemed its residence for all tbe purposes of this act.” Section 3834, 1 Comp. Laws.

Tbe defendant is organized under chapter 160, 2 Comp. Laws. Tbe law requires that tbe articles of association shall state the character of tbe business to be conducted, and the location of tbe same. Tbe law contemplates that associations formed under it may have more than one •office, for it provides that on the outside of every office or place where it carries on business it shall have its name in conspicuous letters, with the word “Limited” attached: The main purpose of the defendant' is to manage, care for, and control, and eventually divide, the property left to its shareholders by the late George V. N. Lothrop. This property consisted largely of real estate and personal prop-arty located in various counties of the State. ■ Agents were appointed in each place to look after its property there situated. Its personal property, consisting of stocks, bonds, and mortgages, was under the control of Mr. Henry B. Lothrop, its treasurer, whose residence was and is at the placed fixed by the association as the location of his business. It was necessary to have some one in Detroit look after its property there. The question of the location of a business of this character is not to be determined by the fact that rents are collected on the property situated in any particular place, or that receipts from elsewhere are sent to any particular office for entry upon the books, or that its account books are kept in any particular place, or that its clerical work is there done. Where an association of this kind has several offices, it is essential that it locate somewhere for the purposes of taxation, as well as other purposes, and there is no reason why it should not select any one of its offices' as its location. In this case there was no necessity for two clerks. There was not even business enough for one. The work of drawing contracts, receiving rents, and issuing checks in payment of taxes is purely clerical, and this w”ork required but little time. If, under these circumstances, it may not choose its location, then its location will depend upon what a jury may say is its principal office or place of business. Would the finding of a jury in one place be conclusive upon a finding of a jury in another ?

The character of the business and the purposes of a corporation are important elements in determining its situs for taxation. ' The only property of the defendant requiring any fire or police protection of the city is its own real estate, which is assessed and taxed in the city, and bears its share of the burdens. It has no active, physical business, like that of merchandising or manufacturing. Its only employés in Detroit are two, who d'o its work of collecting rents, taking care of the real estate, and keeping its books. It has employés in other places. The greater part of defendant’s property is real estate. The care and management of this is its principal business. The collection of the interest upon its personalty occupies but little time, either in collecting or recording upon the books of account, and this is done by a clerk. The policy in controlling and managing this real estate and personal property is fixed by the managers and shareholders at Grosse Pointe. There they meet to do whatever is necessary for them to do.

Counsel for the city rely upon Detroit Transportation Co. v. Detroit Board of Assessors, 91 Mich. 382 (51 N. W. 978). There is no similarity between the facts of that case and those of this. That was a suit in mandamus, and the return of the respondents was conclusive. The relator was a transportation company, doing business upon the Lakes. It located its first office at a roadhouse in the township of Hamtramck, and, when the territory where that was located was annexed to the city, it moved its office to a farm-house, where it had no property and no business, and could not have. None of its directors or stockholders lived in the township of Hamtramck. They lived in Detroit. All of its business was done at the Detroit office. The answer also showed that the stockholders never held a meeting at this roadhouse, but rode up past it and back in a street car, and held their meetings. We said in that case:

‘ ‘ The citizen has a right to reside in the country and do business in the city. This, however, must be an actual residence. One cannot maintain a nominal residence in the country while his actual residence is in the city, and thus avoid taxation in the city. A corporation possesses the same right in this respect that the individual does. A corporation must have a local habitation. It cannot fix a nominal domicile in the country while its actual domicile for business is in the city.”

In this case the office is fixed at the home of one of the principal shareholders and the treasurer of the company, upon the most valuable single piece of real estate owned by it. A majority of the shareholders are nonresidents of Detroit. It is as much the duty of the defendant, through its officers, to look after the property at Grosse Pointe Farms, as it is to look after the property iñ Detroit, Bay City, or elsewhere. If the defendant’s detail books had been kept at the Grosse Pointe Farms, but the rents had been collected, taxes paid upon the Detroit property, and that property taken care of by a clerk or other person in an office in the city of Detroit, would a jury or court be justified in saying that, because inore of its business was done in Detroit than at Grosse Pointe Farms, that was its principal office ? We think that the defendant had a right to locate its place of business at Grosse Pointe Farms, and that that is its place for the purpose of taxation. In this view of the case it becomes unnecessary to discuss the alleged errors in the charge of the court, inasmuch as the jury reached the correct conclusion.

Judgment affirmed.

The other Justices concurred.


author: Grant, J. Hooker, J.

text:
    CATTERMOLE v. IONIA CIRCUIT JUDGE.
    Capias ad Respondendum — Quashing Writ — Mandamus.

      Mandamus will not lie to compel a circuit judge to vacate an order quashing a writ of capias ad respondendum, since the order is final, and reviewable on error.

      Mandamus by Walter J. Cattermole to compel Frank D. M. Davis, circuit judge of Ionia county, to set aside an order quashing a writ of capias ad respondendum.

    Submitted February 2, 1904.
    (Calendar No. 20,339.)
    Writ denied April 5, 1904. .

      Miller & McKenna and Chaddock & Scully, for relator.

      A. A. Ellis, for respondent.
   Grant, J.

The relator obtained the arrest of one Reuben E. Van Houten on a capias ad respondendum. The court, on the motion of Van Houten’s attorneys, quashed the writ and proceedings thereunder, and discharged the defendant. The relator, plaintiff in the suit, applies to this court for the writ of mandamus to review this judgment of the court and compel it to be set aside.

Is mandamus the proper remedy ? It is a rule of almost universal application that this writ will not be entertained when there is another complete and adequate remedy. The judgment or order in this case is final. It has disposed of the plaintiff’s case as effectually as though there had been a trial and judgment. He clearly has a remedy by writ of error. Sheridan v. Briggs, 53 Mich. 569 (19 N. W. 189); Paulus v. Grobben, 104 Mich. 42 (62 N. W. 160); Shaw v. Ashford, 110 Mich. 534 (68 N. W. 281); De Long v. Briggs, 47 Mich. 625 (11 N. W. 412); Brown v. Kelley, 20 Mich. 27; Marble v. Curran, 63 Mich. 283 (29 N. W. 725).

In Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 355), the circuit court entered an order quashing a writ of replevin with costs,' and the plaintiff sought to review the case in this court by mandamus. It was held that the order was final, and was reviewable upon writ of error, citing several authorities, and the writ was denied.

It is true that we have recently entertained applications of this character, but evidently the question of remedy was.not raised. In principle we see no difference between this and Dages v. Sanilac Circuit Judge, and the other cases cited.

It follows that the writ must be denied.

The other Justices concurred.

Hooker, J.

(concurring). The quashing of the writ or service in a case, upon a motion to quash, has often been raised in different classes of cases, such as capias, attachment, summons, declaration, garnishment, and replevin, and in many of them the orders or judgments have been set aside on mandamus. In the majority of these, opinions have not been written, and there is little to indicate the considerations which actuated the court, where, if in any of them, it has omitted to apply the rule that “mandamus will not lie where there is a remedy by writ of error or appeal.” In no case, so far as we have discovered, has the court failed either to apply tife rule or give a reason for not doing so, where it has been called to its attention. That there may have been some liberality exercised by the court where the question of the propriety of the remedy was not raised is probable, and, as was said by Mr. Justice Moore in the case of Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 271 (70 N. W. 582), the decisions have not been uniform:

“ In view of the growing frequency of applications for mandamus asking this court to review the action of subordinate courts, resulting in overloading this court with work which does not finally dispose of the case, it becomes important to decide whether, in a situation like the one at bar, the writ should issue. We are aware that the decisions of this court have not been uniform, and for that reason it is difficult to lay down a rigid rule which shall be followed in all cases. As the writ is a discretionary one, perhaps it is not desirable that an inflexible rule should be established. We think, however, a review of the decisions will indicate, in a general way, when the writ should, and when it should, not, issue. It is a general rule that the writ will not lie where the law has provided another1 remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. 'A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 (51 N. W. 933). The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy. On the-contrary, if the court claims jurisdiction in a case where-it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case-the writ of mandamus ought not to issue.”

When that opinion was written, it was the deliberate intention of the court to reduce the practice by mandamus to uniformity, so far as practicable, with reference to the disposition of cases upon jurisdictional questions, denying the writ, under the well-settled rule, where jurisdiction was retained. But the case clearly recognizes the rule that mandamus should not issue where error or appeal will lie, except where the slowness of legal forms is likely to produce immediate injury or mischief, which ought, to be prevented. There are cases of the quashing of writs- and the dismissal of cases — both final orders — where the-remedy by writ of error is not available, and there manda mus lies, because the record will not show the error. But there are others where the records show the error, and in such cases mandamus will not ordinarily: lie. Exceptional conditions of exigency may justify the issue of the discretionary writ in both classes of cases.

That the foregoing is the proper method of applying the remedies is not only indicated by the case of Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, supra, but it is expressly stated in the recent case of Dages v. Sanilac Circuit Judge, 122 Mich. 490 (81 N. W. 855), filed two years after the former case, and. when the discussion of the former case was fresh in the minds of all, in which exactly this distinction is shown, and authorities •cited showing that mandamus had been sustained where a writ of error would not raise the point, and denied when it appeared in the record. Thus, in replevin brought in the circuit court, the court held that error was the proper remedy, because the record showed the error. Pingree v. Steere, 68 Mich. 204 (85 N. W. 905), was a similar case.

In Olson v. Muskegon Circuit Judge, 49 Mich. 85 (13 N. W. 369), the circuit court reversed a case on special appeal from justice’s - court, and gave judgment, upon grounds, raised before the justice, going to the jurisdiction. Application was then made for a mandamus to compel the circuit court to vacate his order and proceed with the case. It was there said:

“ On examination of the record, it is plain that the court is asked to revise the final judgment of the circuit court upon grounds and matters which appear of record, and where everything necessary to a determination would be regularly returnable on writ of error. That the jurisdiction by mandamus is not suitable is clear. Stall v. Diamond, 37 Mich. 429; O’Brien v. Tollman, 36 Mich. 13; Mobley v. Judge of Superior Court of Detroit, 32 Mich. 190; Wiley v. Allegan Circuit Judge, 29 Mich. 487. The cases cited to the point by relator’s counsel are distinguishable.”

A case involving a similar .question is Orth v. Montcalm Circuit Judge, McGrath, Mand. Cas. No. 717. There a death was suggested and a cause revived. On the case being called up for trial, it was dismissed on motion, for the reason that the action did not survive. An order to show cause was denied June 2, 1896, on the ground that relator’s remedy was writ of error.

These cases are all cited in Dages v. Sanilac Circuit-Judge.

In this connection we call attention to People, ex rel. Brower, v. Judge of Wayne County Court, 1 Mich. 359. In that case relators appealed to' the county court from a justice’s judgment. The court dismissed the appeal for want of jurisdiction, no recognizance having been filed. A mandamus was asked, and it was denied. The court, said:

“Upon these facts, this court is asked for a mandamus to compel the judge of the county court to undo what he has done, to reinstate the cause in his court, to permit the relators to file an amended recognizance, and to proceed to the trial of the cause.
“It is a well-settled rule, already recognized in several cases in this court, that a mandamus does not lie when the party has another and an adequate remedy. By section 67 of the act of 1849 [Act No. 219, Laws 1849], to, consolidate the laws in relation to county courts, and for other purposes, it is provided that ‘ in all cases of judgment rendered by such court in any civil suit, either party thinking himself aggrieved or injured by such judgment, or by any opinion or direction of the court, may remove-the cause by bill of exceptions, certiorari, or writ of error into thó circuit court for the same county in which such judgment was rendered.’ It is said that an order-dismissing an appeal is not a judgment, within the meaning of this section.
“ In Massachusetts, an appeal was given by the statute-from any judgment of the common pleas to the supreme court. Under this law it has been repeatedly decided by the supreme court of that State that any order of the common pleas which determined the cause in that court was a 'judgment, within the meaning of the law, from which an appeal lay.”

The court continued:

“ In Bemis v. Faxon, 3 Mass. 141, it was decided that a motion granted in arrest of judgment in the common pleas came within the statute.
“In Tappan v. Bruen, 5 Mass. 194, the writ had been issued against Matthias Bruen and James Bruen, and the common pleas dismissed the action for want of service of the process upon James. The supreme court said—
‘' ‘ That, as an appeal only lay from the final decision of the common pleas, it has been doubted, as the appeal in terms is given to the party aggrieved at the judgment, whether an appeal lies from an order of that court finally determining the action there. If this provision is to extend only to judgments, technically considered, the party would be without remedy, if he had no day in court given him by an order to arrest the judgment, or to stay all proceedings in any action, which certainly could not be the intent of the statute.'
“ In Wood v. Boss, 11 Mass. 371, the court, after referring to the previous adjudications, and affirming the doctrine that an appeal lay under their statute from any order calculated to terminate the suit, such as an order to stay all proceedings, say:
“ ‘ Otherwise the court of common pleas, by refusing to enter a regular judgment, might oust this court of its appellate jurisdiction, given for the security of the citizens.’
“ The order of dismissal by the county court put an end to this cause in that court; and, unless such order be considered a .judgment which may be reviewed upon certiorari in the circuit court, such order would, it appears to me, be final and conclusive upon the parties, and, in the language of the Massachusetts cases, the party aggrieved would be without remedy.
“The party, then, whose appeal has been dismissed by the county court, being provided with a remedy by the statute, I might stop here with the answer this affords to the present application. But the right of the party to a peremptory mandamus having been placed upon the ground of the inadequacy of the remedy by certiorari, and the question having been fully argued, I think it well for this court to express its opinion upon what I consider to be the well-established rule of this court in the exercise of its authority by mandamus over inferior judicial tribunals; and that is that it will compel them to proceed to act, but never direct them how to act, and this irrespective of the question whether the party has another remedy or not.
“In the case of United States v. Lawrence, 3 Dall. 42, it was determined by the Supreme Court of the United States, clearly and unanimously, after full argument, that, although they might command an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment but his own.
“In Ex parte Hoyt, 13 Pet. 290, the Supreme Court say:
“ ‘It has been repeatedly declared by this court that it will not, by mandamus, direct a judge what judgment to enter in a suit, but only will require him to proceed to render judgment.’
“The same principle is laid down in Massachusetts. Chase v. Canal Co., 10 Pick. 244; In re Strong, 20 Pick. 495.
“ The case of People, ex. rel. Doughty, v. Judges of Dutchess C. P., 20 Wend. 658, is analogous to the one now before us. The common pleas had dismissed an appeal from the judgment of a justice upon the ground of a want of jurisdiction, the affidavit and appeal bond reciting a judgment as rendered by the justice on the 11th day of March, whereas the'return of the justice showed a judgment rendered on the 12th day of that month. The alternative writ required the judges of the common pleas to vacate the rule quashing the appeal, and to deny the motion to quash the appeal, or to show cause, etc. Bronson, J., delivering the opinion of the court, said:
“ ‘This presents an important question in relation to the appropriate office of the writ of mandamus. The court of common pleas, acting within the scope of its jurisdiction; has heárd and decided a matter properly brought before it for adjudication, and the question is whether we can, by mandamus, require that court to undo what it has done, on the ground that the decision was erroneous. I am of the opinion that we possess no such power. I shall not stop to inquire whether the order quashing the appeal was such a final judgment upon the rights of the parties as may be reviewed by writ of error, nor whether the relator has any other remedy. Com. v. Judges of C. P., 3 Bin. 373. I place my opinion upon the broad ground that the writ of mandamus cannot be awarded for the correction of judicial errors.’
“After referring to various authorities, English and American, the judge says:
‘“In general, a mandamus will not be awarded where the party has another legal remedy; but the converse of the proposition does not hold true. There are many cases where, although the party has no other remedy, a mandamus will not lie.’
“ So in Elkins v. Athearn, 2 Denio, 191, the supreme court of New York refused to entertain a motion for a mandamus to compel the judges of the superior court of the city of New York to vacate a rule opening a judgment to enable a defendant to plead a bankrupt discharge, though it was urged that the order interfered with vested rights. The supreme court said:
“ ‘The court acted judicially in making the order, and, whether they were right or wrong, it is settled that judicial errors cannot “be corrected by mandamus. The writ will be awarded to set an inferior court in motion when it has refused to act, but not for the purpose of requiring the court to come to any particular decision, nor to retrace its steps when it has already acted.’ ”

A similar case is Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495, 499 (87 N. W. 641), where an appeal from justice’s court was dismissed in the circuit, and mandamus was held not to be the proper remedy. See, also, Moran v. Wayne Circuit Judge, 125 Mich. 6 (83 N. W. 1004), Mardian v. Wayne Circuit Judge, 118 Mich. 353 (76 N. W. 497), and Steel v. Clinton Circuit Judge, 133 Mich. 695 (95 N. W. 993), for a general discussion of the subject.

In my .opinion, these cases are conclusive of this case. And the case of Dages v. Sanilac Circuit Judge will be found consistent with the early and late cases, if not with all of the memorandum cases claimed to be at variance with it.

The writ should be denied.

The other Justices concurred.


text:
    SMITH v. DETROIT & MACKINAC RAILWAY CO.
    Railroads — Accident at Crossing — Contributory Negligence.
    While a train was at the depot, a woman who desired to take it. was several hundred feet away, riding a bicycle on the street, sidewalk. Her husband asked the conductor to wait for her, and he said he would, but to hurry her up. The husband, with his hand, tried to signal her to hurry; but there was. nothing to indicate that she saw it. Before reaching the depot, she was obliged to cross a spur track, over which the railroad company was accustomed to haul long timber, a 15-foofc reach being attached to the tender of its engines in order to. effect a coupling. The woman was familiar with the surroundings, and with the method of handling the cars and timber. As she approached the crossing, an engine was backing towards it, in plain view, reach foremost; and, discovering that she could not cross and escape injury, she dismounted so close to the track that she was struck by the reach or a part of the engine, and instantly killed. Held, that there was nothing in the circumstances making her other than an ordinary traveler on the highway, and that she was guilty of contributory negligence, precluding a recovery for her death.
    Error to AlconaConnine, J.
    Submitted February 2, 1904.
    (Docket No. 50.)
    Decided April 5, 1904.
    Case by Christopher C. Smith, administrator of the estate of Margaret Smith, deceased, against the Detroit & Mackinac Railway Company, for the alleged negligent-killing of his intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The village of Black River, in 1898, contained between 250 and 300 inhabitants. The main street runs east and west through the village, and is 5Ó feet wide. The houses are scattered. Plaintiff lived on the easterly side of the village, on a highway known as the “State Road,” running north and south, at right angles with the main thoroughfare. The defendant’s main track runs northeasterly and southwesterly through the village. Its depot is situated alongside the track, south of the main thoroughfare. To the east of the main track lies a spur track, which connects with the roundhouse, situated southwest of the depot. At the main thoroughfare this spur track is 191 feet from the main track, and runs in a more easterly direction than the main track. On the north side of the highway is a sidewalk about 3 feet wide, which extends across the spur and main tracks. As it approaches the spur track, the walk, for a short distance, is elevated somewhat above the ground. The principal business at the place is handling long timber, which was brought over the defendant’s road to the bay shore at that place.
    Mr. Smith, the plaintiff, and his wife, had lived there for 10 years prior to her death. He had been a foreman for defendant for some years, and had had charge of the engines and cars used in moving this timber. Because the timber would stick out over the car, it. was necessary to use what was called a “ reach” for the purpose of coupling the engine and car»together. This reach was about 15 feet long, extending back of the tender. This spur track was used in moving such timber, and trains passed over it from 15 to 30 times a day, and sometimes oftener. The trains were always backed in. They did not run on schedule time, but might be expected at any moment. Both the plaintiff and his wife were perfectly familiar with the situation,' with the construction of the reach, and with the method of handling the cars and the timber. Their house was situated on a lot adjoining this spur track.
    Plaintiff and his wife were intending to take the passenger train which left at 7:10 o’clock a. m., June 4, 1898, to spend the day at a near-by station. He left his home first on his bicycle, and she was to meet him at the depot on hers. He was at the depot when the train arrived. As the conductor alighted from the train, plaintiff asked him if he would not hold the train for the arrival of his wife, whom he saw coming on the sidewalk of the main thoroughfare 762 feet distant. The conductor replied that he would, but to hurry her up, and he passed into the depot. Plaintiff motioned to his wife with his hand, trying to signal her to hurry. Whether she saw the signal is not known. After plaintiff had spoken to the conductor and signaled to his wife, he turned to put his wheel in the baggage car, and the conductor went into the station. Meanwhile, an engine, with its tank or tender and the reach, left the roundhouse, situated 645 feet south and west of the highway, to go northeast on the spur track. Mrs. Smith continued on her bicycle along the plank walk. When within 98 feet of the spur track, she could see at a glance to the southwest along the track a- distance of 350 feet from the highway. As she approached nearer she could see farther. Plaintiff himself testified, “ If you got within 30 feet of the track, and you looked down the.track, you could see a distance of 600 to 700 feet.” Other witnesses, both for the plaintiff and the defendant, testified to the same effect. A witness for the plaintiff, named Beede, testified that he was upon the sidewalk 98 feet east of the track when she passed him' on her bicycle. After she had passed him, he heard the engine coming, and called out to her, “ Look out for the engine!” She made some reply, but he did not understand what she said. Just as she got close to the track, she dismounted, and a part of the reach or of the engine struck her, threw her down, and she was instantly killed.
    The negligence charged is the failure to ring the bell, to maintain a watchman at the crossing, to maintain a lookout on the rear of the engine, the employment of an incompetent fireman, running at a dangerous rate of speed, negligently and wrongfully equipping its locomotive with the reach, and carelessly and negligently running such engine, so equipped, in close proximity to its depot, without giving travelers and its patrons approaching its depot timely notice of the danger caused by reason of said reach projecting therefrom. The court left the questions of the negligence Of the defendant and the contributory negligence of the deceased to the jury, who found a verdict for the plaintiff.

      T. A. E. & J. C. Weadock and Charles B. Henry, for appellant.

      H. K. Gustin (De Vere Hall, of counsel), for appellee.
   Grant, J.

(after stating the facts). That the bell was rung is conclusively established. It was charged that the fireman, who was leaning out of the cab of the engine on the right as it approached the crossing, and whose duty it was to keep watch of the highway on that side, had defective eyesight. He, however, testified that he saw the deceased as she approached the crossing, and notified the engineer, who was keeping watch on the other side, as soon as he saw that she was in danger. The engineer testified that, as, soon as the fireman notified him, he applied the brake and reversed the engine. It was the rule of the company to keep a man upon the rear of trains when backing over public highways, but it appears there was no such rule or custom when an engine alone, with the reach attached, was crossing this highway. It is insisted on behalf of the defendant that the engineer and fireman' were in such case sufficient to watch the highway and guard against any danger. Whether there was any negligence on the part of the defendant we find it unnecessary to determine. The case must be decided upon the contributory negligence of the deceased.

The learned circuit judge recognized the well-established rule that a traveler, in approaching a railroad crossing, is bound to look, and, if he cannot see, to stop and listen, and that, if the deceased approached this crossing as an ordinary traveler, she was guilty of contributory negligence. It was left to the jury to determine whether she was excused from the performance of this duty “by reason of the signal which her husband had given from the depot, and by reason of all the surrounding circumstances;” and the court instructed them that “if she was justified in believing, or perhaps was led to believe, that at that time it was safe for her to approach this depot without stopping and looking and listening, she was not guilty of contributory negligence. * * * And I say to you, gentlemen of the jury, that she was guilty of contributory negligence, unless the circumstances were such as, in your judgment, justified her in relaxing her vigilance at that time before making the crossing, — unless the circumstances were such as justified her in not taking the usual precautions.”

It seems hardly possible that she did not see the engine approaching the crossing from a southwesterly direction while she was going west, for it was within her line of vision without turning her head. Either she saw it, and thought she had time to get across, and did not discover her mistake until she had gotten close to the track, where she stopped and alighted and was struck, or else she paid no attention whatever, and did not see the engine until she was close to the track and the reach was close upon her. If she saw it, and, thinking she could get across, concluded to make the race and take the risk, clearly she was guilty of contributory negligence. This is the most probable theory. If she did not see it until it was close upon her, was she not bound to look and avoid an obvious danger ? There was no occasion to listen, for sight would have given her all the information or warning she needed; there was no occasion to stop to look, for she could see without doing that. She was skilled in riding the bicycle. She was riding, as one of plaintiff’s witnesses testified, “two or three times as fast as you could walk.” She knew that engines and cars might be expected to cross at any moment. She was entirely familiar with the character of the cars and engines, and the danger attendant upon the place. 1

It is urged that she was, by the signal of her husband, invited to enter the defendant’s car; that from that moment she was in the custody of the railway company, and was notified by it that the way from where she then was to the station, a distance of 762 feet, was safe, and that no train would thereafter be sent over this spur track until she was safely across it. If she desired to become a passenger, it was her duty to, be at the depot at the schedule time for the arrival and departure of the train. For some reason she was late. She had evidently just left her home •as the train arrived. Those living east of this spur track, •and desiring to become passengers upon that train, had had ample time to reach the depot. Unless the train waited beyond its schedule time, no one east of this spur track could reach it in time to take passage. Even if, as to outgoing passengers, there was any duty upon the defendant not to run its engines over this spur track while passengers .might be coming to the train, that duty was fulfilled. Those in charge of the engine had the right to assume that passengers desiring to take that train were at the depot. There was nothing in the situation to notify those in charge of the engine that the deceased desired to become a passenger upon the train. Besides, it is mere conjecture whether she saw the signal of her husband. He testified, “I got no reply from her indicating that I had attracted her attention.” There is no evidence upon which to base a finding that she was acting upon the invitation of the defendant, or that she was relieved from the usual precautions required of those crossing a railroad in a public highway. She was, therefore, an ordinary traveler, chargeable with the same notice that she was approaching a dangerous place, and with the same duty to look and to protect herself, as would be imposed upon any traveler. This being so, the case is clearly ruled by Grostick v. Railroad Co., 90 Mich. 594 (51 N. W. 667); Tucker v. Railway Co., 122 Mich. 149 (80 N. W. 984); Lau v. Railroad Co., 120 Mich. 115 (79 N. W. 13); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518). Many authorities will be found cited in the above cases.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    FRANCIS v. FRANCIS.
    Public Lands — Indian Treaty — Reservation — Patent — Restricting Alienation.
    The treaty of September 24, 1819, between the United States and the Chippewa Indians (7 Stat. 203), providing that, from the lands thereby ceded by the Indians to the United States, there should be reserved (article 3) for the use of the children of B., and their heirs, 640 acres on the K. river, operated as a grant in fee to the reserveós; and a patent thereafter issued to them by the United States, in pursuance of article 3, of a tract of land containing 640 acres on the river K., describing it by metes and bounds, must be treated simply as a selection and designation of the land, and a clause in the patent, restrictive of alienation, was an attempt to exercise a right not reserved to the United States under the treaty, and hence ineffectual.
    Error to Bay; Shepard, J.
    Submitted February 2, 1904.
    (Docket No. 66.)
    Decided April 5, 1904.
    Ejectment by Ann Francis against Peter J. Francis and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Thomas E. Webster (James Van Kleeck, of counsel), for appellant.

      Porter & Haffey (Chester L. Collins, of counsel), for appellees.
   Montgomery, J.

This is an action of ejectment. The plaintiff claims a life estate in the land in question under a patent from the United States. The defendants claim title by adverse possession, having admittedly been in the occupation of the premises for more than 20 years. The patent under which plaintiff claims was a patent issued to the children of Bowkowtonden and their heirs, but containing a clause that the lands were never to be conveyed by them or their heirs without the consent and permission of the President of the United States. It is the claim of the plaintiff that, under this patent, the title remained in the United States in such sense that a title by adverse possession could not be acquired as against the heirs of the grantees named in the patent. The defendants, however, assert that by a treaty concluded at Saginaw, Mich., on the 24th of September, 1819 (7 Stat. 203), some five years prior to the grant of the patent, between the Chippewa Nation of Indians and the United States, the title to the land in question had been fully vested in the children of Bowkowtonden, leaving nothing to be done except to make proper designation of the land in question; that the only office of this patent was to designate the land; and that the attempt to restrict the power of alienation was an attempt to exercise a right not reserved to the United States under the treaty. .

By the terms of the treaty in question, the Chippewa Nation ceded to the United States certain lands described. There were reserved from the lands so ceded certain named tracts for the use of the Chippewa Nation. In addition to that, by article 3 of the treaty (page 204), it was provided :

“ There shall be reserved for the use of each of the persons hereinafter mentioned and their heirs, which persons are all Indians by descent, the following tracts of land: [after describing other tracts] For the use of the children of Bowkowtonden, six hundred and forty acres on the Kawkawling river. ”

That a good title to a portion of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without an act of Congress or any patent from the executive authority of the United States, is settled. Jones v. Meehan, 175 U. S. 1 (20 Sup. Ct. 1). A treaty between the United States and an Indian tribe should be construed, not according to the technical meaning of its words to lawyers, but in the sense in which it would be naturally understood by the parties to the treaty. It was also held, in the case just cited, that the reservation of land to Indians and persons of Indian descent in severalty, unless accompanied by words limiting its effect, is equivalent to a present grant of the title in fee simple, and that such title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation. In Auditor General v. Williams, 94 Mich. 180 (53 N. W. 1097), this court held that, where the treaty itself restricted the power of alienation, such restriction would be given effect, and the reservee would be treated as in a sense a ward of the government. But the effect of the treaty in question has been determined by repeated adjudications of this court.

The effect of this article 3, under which the title was reserved in this case to the children of Bowkowtonden, was considered by the Supreme Court in Stockton v. Williams, 1 Doug. 546. In that case it was distinctly held that the treaty operated as a grant, and that, by the true construction of the treaty, nothing remained to be done except to designate the particular lands to be passed. In that case the court was dealing with lands reserved to Mokitchenoqua, which were to be located at and near the Grand Traverse of Flint river in such manner as the President of the United States might direct. It was held that the location of the lands became a duty devolving on the President by the treaty; that this duty he could execute without an act of Congress, the treaty, when ratified, being the supreme law of the land, which the President was bound to see executed; that locality was given by the terms of the treaty, with an authority to locate afterwards b>y a survey making it definite; that, this authority being ■executed, the grant became as.valid, as to the particular section designated by the President, as though the description had been incorporated in the treaty itself; that thereupon a fee passed to the reservee; and that the rights of the parties could in no wise be affected by the subsequent act of the President directing a patent to be issued.

This same provision of the treaty again came before the court in Dewey v. Campan, 4 Mich. 565, in which the term “reservation” was again held to be equivalent to an absolute grant, and the title passed as effectually as if-a patent had been executed; that the title was conferred by the treaty; and that, while location was necessary to give it identity, when the location was duly made the title was consummated.

Again, in Campau v. Dewey, 9 Mich. 381, it was held that the title reserved by the treaty passed under the treaty,, and required no patent. We have not overlooked the statement of counsel that in this last case the subject was discussed only by the dissenting judge; but an examination of the case discloses that upon this question the other members of the court agreed with Justice Christiancy. Indeed, it was truly said by Justice Christiancy in that case, referring to Stockton v. Williams, supra:

“This decision has for 16 years been recognized as the law governing the titles under this treaty, at least, and these must be quite numerous, many of which have doubtless been bought and sold on the faith of this decision. We are therefore compelled to recognize it as a rule of property which we are not at liberty to disturb.”

As is suggested by the brief of defendants’ counsel, this •consideration appeals with still greater force at this time, when more than 50 years have elapsed since the decision in Stockton v. Williams, during which the doctrine of that case has doubtless been acted upon and considered as binding authority.

It only remains to be considered as to whether the words of the patent restricting alienation can be given effect. As we have seen, the title to this property passed by the treaty. Nothing remained except the survey or designa - tion, which it became the duty of the government to make. The patent is evidence that the lands named in it were selected under this treaty. In fact, it recites that it is made in pursuance to the third article of the treaty, and contains a grant of a fee of the lands. This should be-treated as a sufficient designation of the land, and, the title having previously passed, neither the executive department nor the Congress can divest the title, the treaty being the supreme law of the land. See Jones v. Meehan, supra, and the cases there cited and discussed.

It follows from these considerations, we think logically, that, the plaintiff being the heir of the children of Bow-kowtonden, and having the right to convey, a title by prescription can be gained, and the occupancy of defendants has ripened into such title. None of the considerations which are urged in the able briefs of counsel for plaintiff have escaped our attention, but we think these considerations must rule the case. The briefs upon both sides, prepared with unusual care, have been of great benefit to the court.

The judgment will be affirmed, with costs.

The other Justices concurred.