author: Stone, J.

text:
    SYLVESTER v. BUTTON.
    1. Executors and Administrators — Possession of Devised Lands Subject to Debts — Ejectment.
    Where defendant, without the consent of the administrator of his father’s estate, took possession of a farm devised to him by his father subject to “my just debts and funeral expenses,” and claims were allowed against the estate exceeding the value of the farm, which was practically the only property in the State available to pay the debts, the administrator being entitled to possession under 3 Comp. Laws 1915, § 13850, the evidence justified the court below in directing a verdict in his favor, in an action of ejectment.
    2. Appeal and Error — Ejectment—Review.
    Where plaintiff administrator, in ejectment for the possession of a farm devised to the defendant son of testator, subject to the debts of the estate, did not appeal from that part of the judgment in favor of the purchaser of a part of said farm from defendant, whether said part of the judgment was erroneous, held, not before the court.
    Error to Van Buren; Des Voignes, J.
    Submitted June 11, 1919.
    (Docket No. 12.)
    Decided July 17, 1919.

      Ejectment by William H. Sylvester, administrator with the will annexed of the estate of James P. Button, deceased, against Earl P. Button and others. Judgment for plaintiff on a directed verdict. Defendant Button brings error.
    Affirmed.

      Earl L. Burhans and David Anderson, for appellants.

      Cady & Andrews and Thomas J. Cavanaugh, for appellee.
   Stone, J.

This is an action of ejectment, begun August 5, 1918, brought by the administrator of the estate (with the will annexed), of James P. Button, deceased, against the defendants and Fred J. Overton and Cynthia Overton for 80 acres of land in the township of Bangor, Van Burén county, which belonged to the said James P. Button in his lifetime. April 27, 1912, said testator made a will by the terms of which his son, defendant Earl Porter Button, was devised the lands described in the declaration, and $800 out of sale of a store building at Milford, Illinois. Emily L. Button, widow of testator, was devised a farm in Berrien county. It seems to be conceded, however, that this last-named farm was owned by deceased and said Emily L. Button as tenants by the entirety, at the time of his death, and so did not pass to her under the will. She was also devised 40 acres of land in Butler county, Kansas, and a store building and lot in Milford, Illinois, subject to the $800 legacy above mentioned. She was also the residuary legatee under the will.

These devises were all expressly subject to the payment of the just debts and funeral expenses of the testator. The testator died December 23, 1913, and the will was duly admitted to probate in the probate court of Berrien county on February 2, 1914. An appraisal was made of the estate bearing date March 3, 1914, which included the farm here involved at $6,000; 40 acres- in Kansas at $800; store building in Illinois at $5,000, and personal property at $400, aggregating $12,200. As appears by the report of the commissioners on claims, bearing date July 25, 1914, claims were allowed against the estate aggregating $6,116.44. This, however, included a mortgage on the farm in question amounting to $2,294.95, which, after foreclosure by advertisement and sale, was redeemed from by the defendant, and should not be included in the indebtedness. The claims allowed also included claim of the widow “Emily L. Button paid J. P. Button mortgage and interest $2,135.” It is claimed by defendants that this last claim was a mortgage on the Berrien county farm which, having been paid by the widow, the survivor, does not constitute a valid claim against the estate — a question that is not before us.

At the time of the death of James P. Button the store building in Milford, Illinois, was not insured, and the administrator did not insure it. It burned, and defendant Earl Porter Button filed in the said probate court a petition in said estate alleging the facts as to said building, that it was the duty of the administrator to insure it, that he had neglected his duty, that the building was destroyed March 18, 1914, and that the estate was damaged thereby to the extent of $4,000, and that the administrator should be held liable for such damage and loss to the estate. An order denying this petition was made on May 1, 1915. Later, a petition, by the administrator, to sell the real estate described in the declaration, for the purpose of paying debts, was filed in the probate court for Berrien county and a license was issued (the date not appearing in the record) but no sale was made under this license. On April 27, 1918, another petition was filed by the plaintiff praying for a license to sell, but no order was made thereon. There was evidence that the plaintiff filed a petition in said probate court asking leave to bring this suit, and to employ counsel for that purpose, and an order was granted — the date not appearing. This was an ex parte proceeding, of which defendants had no notice. The defendant Earl Porter Button was called by the plaintiff for cross-examination under the statute, and he testified, among other things, that the Milford lot with the building burned off was worth, in his judgment, $2,500. He also testified as follows:

“I took possession of the farm in August, 1914. My father died in December, 1913. When he died Mr. Willis, the tenant, was living on the place, and in August, 1914,1 took possession from Willis. I bought him out, and have held possession of the property ever since. The administrator has never asked me for any rent of the property and never interfered in any way with my possession. * * * As to the 20 acres I sold to Overton, he had an interest in that twenty before he got his deed. He had a lease of the twenty acres. He got his lease from me. I think it was in December. I know it was in 1914. It was two or three months after I took possession of the place. So I leased it to Overton and he was in possession under his lease, and last December (1917) I sold it to him and gave him a deed. Since August, 1914, I have taken the crops from the place, and have never shared in any way with the estate, and have never been required to do so. I have occupied the land as my own from August, 1914. * * * I went into possession of the farm by virtue of having bought out I. W. Willis. He had leased this farm from my father by a written lease, and I bought out his right and moved in by virtue of having bought out his right. * * * My father was dead when I bought out Willis. * * ’* I bought out the share of crops that he had growing in the year 1914, and in that way I got him to move, and then I took possession and I have had full control and possession in every way ever since without any interference from the administrator in any way, shape or manner.”

This case was tried in the court below in November, 1918. Said defendant did not pay the taxes on the farm in .question for the years 1914, 1915, 1916, or 1917.

At the time of the mortgage foreclosure sale above mentioned there was due on the mortgage on this farm, including costs, $2,693. The farm was sold for $5,900, thus leaving a surplus of $3,207, which remained in the hands of the sheriff, until it was taken out and used to redeem by the defendant Earl Porter Button, who also obtained $3,000 from said Overton by the sale of 20 acres of the farm, which made a sufficient sum to redeem. The taxes paid by the purchaser were the subject of the litigation in Wood v. Button, 205 Mich. 692, It appears from the record that the only property in Michigan in which said estate- has any interest is the farm in question, and the $400 of personal property.

At the close of the testimony the defendants moved for a directed verdict in their favor, on the following grounds:

1. That the plaintiff, under the evidence, has shown no right to recover.

2. That the undisputed evidence in the case- shows that James P. Button died December 23, 1913, leaving a last will and testament, under which this farm was specifically devised to the defendant Earl Porter Button, and that in August, 1914, said defendant obtained possession of this farm, which was his devise, and has ever since held possession thereof, without any reference to the administrator, and without being requested by the administrator, in any wise to account to him for any of the proceeds; and that said defendant has in all ways treated the property as his own.

3. Because the evidence shows that the probate court has not at any time, determined there was a deficiency in the property necessary to pay debts. Consequently there is no evidence before the court that there is any deficiency.

4. Because the undisputed evidence shows that no opportunity has been given to said defendant to pay' any share of any deficiency in assets that might fall upon him, in settling the debts of said estate.

_ 5. Because such administrator cannot, under any circumstances, maintain ejectment against a devisee in possession under the terms of the will, where that possession is with the consent of the administrator or executor, or otherwise.

6. That the undisputed evidence shows that there are other legatees, and other pieces of property devised, and these other legatees are bound to contribute towards the payment of debts as well as said defendant Earl Porter Button; and there has been no determination of the probate court, showing the amount that any devisee or legatee should‘be called upon to contribute.

This motion was denied. Thereupon both parties asked for a directed verdict. The trial court directed a verdict and judgment against defendants Earl Porter Button and wife, for the undisposed of portion of the land, and in favor of Fred Overton and Cynthia Overton for the 20 acres purchased by said Fred Overton.

The defendants Button have brought error, and by proper assignments of error have raised the same questions urged in the motion for a directed verdict, and they assert here that upon the whole record, and ,the statutes applicable thereto, the plaintiff is not entitled to recover.

The appellants rely upon the provisions of sections 13797 to and including 13801, 3 Comp. Laws 1915, and the decisions of this court thereunder, and especially upon Atwood v. Frost, 51 Mich. 360. Appellants call attention particularly to section 13799, 3 Comp. Laws 1915, which is as follows:

"All the devisees and legatees, who shall, with the consent of the executor or otherwise, have possession of the estate given to them, by will, before such liability shall be settled by the probate court, shall hold the same subject to the several liabilities mentioned in the preceding section, and shall be held to contribute according to their respective liabilities to the executor or to any devisee or legatee from whom the estate devised to him may have been taken for the payment of debts or expenses; * * * and the persons who may, as heirs, have received the estate not disposed of by the will as provided in this chapter, shall be liable to contribute, in like manner as the devisees or legatees.”

We are of the opinion that a careful examination of the statutes referred to, and of Atwood v. Frost, supra,, will show that they are not applicable to the conditions here presented.

At the time defendant got possession of the farm in question, debts to a considerable amount had been proved against the estate. The property in question is the only property in this State available to pay the debts — save the small amount of personal property. The last petition for license to sell, although introduced in evidence, does not appear in the record. It probably was in the usual form and stated the amount of the debts unpaid. A careful reading of Atwood v. Frost, 'supra, will show that in that case the executor filed in the probate court a petition in which he recited the sales made by him, and stated that the sums received were insufficient for the satisfaction of the demands against the estate, and praying that the devisees and legatees who had received property from the estate under the will be decreed to pay the same in proportion to the value of the property received by them respectively; and the court granted the prayer of the petition and made an order of contribution in which a certain sum was assigned to be paid by Mrs. Dibol. This order of contribution was made on due notice to the parties concerned. That was the reason for the following significant language of Justice Cooley:

“The action of the executor and of the probate court assumed that the land in dispute had been delivered into the possession of Mrs. Dibol with the executor’s consent. That being so, the proceedings to compel her •to contribute must have been taken under this statute. It was never contemplated that the executor might still treat the property as assets to be disposed of in the ordinary way.”

We think that that case is readily distinguished from the instant case. Here all the property devised was. made subject to “my just debts and funeral expenses,” and the farm in question had not come into the possession of defendant Earl Porter Button with the executor’s consent. As against the plaintiff’s right, the possession of said defendant was wrongful, and the plaintiff has the right to possession for the statutory purpose. In our opinion, section 13850, 3 Comp. Laws 1915, entitles the plaintiff to possession of the real estate in question, and under the evidence justified the trial court in directing the verdict and judgment for the plaintiff. Whether that part of the verdict and judgment in favor of the Overtons was erroneous is not before us, as the plaintiff has not appealed.

We find no error in the record of which the appellants can justly complain, and the judgment below is therefore affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    PERKETT v. MANISTEE & NORTHEASTERN RAILROAD CO.
    1. Carriers — Delay in Transit — Damage to Fruit — Inspection —Sufficiency—Question for Jury.
    In an action against a railroad company for damages to fruit alleged to have been caused by delay in its shipment, testimony by plaintiff as to the condition of the peaches at time of shipment, that while he examined only 80 or 85 baskets of peaches out of a shipment of 389 baskets, he examined four or five baskets in each load, that he could see the peaches through the openings between the slats of which the baskets were made, that he personally saw every basket as it went into the car, that from this method of inspection he was able to testify as to the quality and condition of the fruit of the entire lot, and that this was the usual, ordinary, and general way in which shippers and purchasers of fruit, when shipping, examine it, held, sufficient to present a question of fact for the jury as to the condition of the peaches at the time of inspection before shipment, and that the court below was in error in limiting recovery to the 80 baskets actually examined.
    2. Same.
    In such action, testimony by a witness for plaintiff as to the condition of apples shipped by plaintiff after arrival at their destination, that he only inspected about 15 barrels of the apples at the time of the actual delivery to the consignee, but later on, when the apples were sold, that he actually handled every barrel himself and opened the barrels and made inspection, that he had had 30 years’ experience and was able to testify, from the Inspection made, whether or not they had become heated, held, in connection with other testimony offered, to present a question of fact for the jury as to the condition of the apples at the time of their delivery to the consignee, and the court below was in error in limiting recovery to 37 barrels.
    Error to Grand Traverse; Mayne, J.
    Submitted June 4, 1919.
    (Docket No. 40.)
    Decided July 17, 1919.

      Assumpsit by Louis F. Perkett against the Manistee & Northeastern Railroad Company for damages to certain fruit in transit. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.
    Reversed.

      John J. Tweddle, for appellant.

      Edgar H. Johnson (Travis, Merrick, Warner & Johnson, of counsel), for appellee.
   Kuhn, J.

This cause, which involves an action of assumpsit for damages to two cars of fruit, was before this court before, and the decision is found reported in 191 Mich. 106. That opinion contains a statement of fact sufficient for an understanding of the issues involved. The cause, having being reversed, was sent back for a new trial, which resulted in a judgment recovered against the defendant for $266.61, by virtue of the Carmack amendment to the interstate commerce act.

The principal errors relied upon may be grouped under two headings:

CL) Error of the court in limiting the recovery of damages (for the decay of peaches) to 80 baskets of peaches.

(2) Error in limiting the recovery of damages (for the alleged decay of apples) to 37 barrels of apples.

1. It is the contention of the appellant that there was sufficient evidence to show the condition of the peaches at the time they were loaded and shipped and that the question of fact as to the condition of the fruit at that time should have been submitted to the jury for them to determine. The trial judge limited the recovery to 80 baskets of peaches for the reason that the plaintiff testified that he only opened 85 or 80 baskets of peaches and only made an actual ex-animation of that many baskets. But his testimony shows that'he examined four or five baskets in each load. The peaches were in regular peach baskets, and he testified that he could see the peaches through the openings made between the slats of which the baskets were made, and that it is the usual, ordinary, and general way in which shippers and purchasers of fruit, when shipping it, examine the fruit. He testified that he had been in business for 30 years, during which time he has observed this custom, and that other shippers had also observed the same custom, and that from this method of inspection he was able to testify as to the quality and condition of the fruit of the entire lot, which comprised 389 baskets of peáches, he having actually seen every basket of peaches as it went into the car. Upon this testimony we think that the claim of the appellant is justifiable that it presented a question of fact for the jury to determine as to what the condition of the peaches was at the time of the inspection before shipment.

2. The trial judge limited the. recovery for the apples to 37 barrels, because of the fact that the testimony only showed that that many barrels were actually inspected after their arrival at their destination. Mr. Frost, a witness for the plaintiff, testified as to the condition of the apples upon their delivery to the consignee. He stated that he had only inspected about 15 barrels of the apples at the time of the actual delivery to’ the consignee, but later on, when the apples were sold, that he actualfy handled every barrel of apples himself, and opened the barrels and made inspection. He testified that he had had 30 years’ experience and was able to testify from the inspection he made of the apples whether or not they had become heated. We are of the opinion that this testimony presented at least a question of fact for the jury to determine what the condition of the apples was, in connection with the other testimony offered, at the time of their delivery to the consignee, and the question of fact should have been submitted to the jury.

There is also a claim .made that the court erred in instructing the jury that the plaintiff admitted that the cars were properly iced according to the contract. As the case will be sent back for a new trial, if there is any merit to this claim, the error will probably not be repeated, and it is therefore unnecessary to discuss it.

For these errors the case will be reversed and a new trial granted, with costs to the appellant.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


text:
    BRENNAN v. RECORDER OF THE CITY OF DETROIT.
    1. Mandamus — Judge of Recorder’s Court of Detroit — Determination Binding upon Incumbent.
    Where, since the order to show cause was issued in mandamus proceedings to compel the recorder of the city of Detroit to take a complaint for violation of a city ordinance he has been succeeded in office by another, the determination of the matter will be binding upon the incumbent; the proceedings being directed to the judge officially.
    2. Municipal Corporations — Motor Vehicle Law — Highways and Streets — Automobiles—Ordinances.
    An ordinance of the city of Detroit regulating the speed of automobiles upon the streets of the city and fixing a greater penalty for its violation than that provided in the “motor vehicle law,” held, not in contravention of the State law, since it does not mate it less stringent or relax it.
    3. Statutes — Construction—Motor Vehicle Law.
    Requirements of the “motor vehicle law” for recording and certifying the convictions thereunder, held, merely incidents of the enforcement of the statute that do not affect the rule of conduct therein prescribed.
    4. Constitutional Law — Power oe Legislature.
    The legislature may not do by indirection that which it cannot do directly.
    5. Same — Municipal Corporations — Highways and Streets — Right to Reasonable Control.

      Held, that the legislature may not, by providing for a system of recording or certifying convictions of violations of the “motor vehicle law” to the secretary of State, nullify the right of municipalities, under section 28, Art. 8, of the Constitution, to the reasonable control of its highways.
    Mandamus by Vincent M. Brennan, assistant corporation counsel, to compel William F. Connolly, recorder of the city of Detroit, and another to take a complaint for an alleged violation of a city ordinance.
    Submitted July 2, 1919.
    (Calendar No. 28,219.)
    Writ granted July 17, 1919.

      Vincent M. Brennan (Clarence E. Wilcox, of counsel), in pro. per.

      Edwin Henderson, for defendants.
   Kuhn, J.

The relator seeks mandamus to compel the respondents to take a complaint under a city ordinance of the city of Detroit for an alleged violation of the provisions of the section of an ordinance which prohibits “speeding,” so-called, in that city. The learned recorder took the view that the ordinance, in so far as it undertook to punish “speeding,” contravened the “Michigan motor vehicle law,” and refused to entertain complaints under the ordinance in his court for that offense. He also instructed the other respondent, the clerk of his court, to refuse to take such complaints.

Since the time when the order to show cause in this matter was issued against the respondent, he has left the bench and has been succeeded by the Hon. Charles T. Wilkins, the present recorder. However, as the proceeding is directed to the judge officially, the determination of this matter is binding upon the incumbent, whoever he may be. People v. Bacon, 18 Mich. 247.

It is the contention of counsel for respondents that the municipality has power only to legislate upon the subject-matter of the control of its streets when the legislature of the State has not by general legislation covered the subject-matter. In support of this contention, the case of People v. McGraw, 184 Mich. 233, is relied upon. In that opinion it was said:

“The municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This, construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene State laws.”

Section 30 (1 Comp. Laws 1915, § 4826) of the “Michigan motor vehicle law” confers jurisdiction to hear, try and pass sentence for any and all violations of any of the provisions of the act, upon police justices of any city or justices, of the peace of the county where any such violation shall occur; and section 33 (1 Comp. Laws 1915, § 4829) of the same act provides for a comprehensive method of certifying convictions under the State law, for recording such certificates by the secretary of State and for the certification by the secretary of State to the several county clerks of the State, of convictions under section 21, and for furnishing copies of the records of convictions under section 21 by the county clerks of the State to the magistrates in each county before whom violations of the provisions of the “Michigan motor vehicle law” are triable. It is urged that if a prosecution and conviction should be had under the city ordinance for an offense defined by the State law, such conviction cannot be reported to the secretary of State, as provided by the State law, and therefore that the purpose of the State law is in that respect contravened and nullified. It is conceded by counsel that it is the settled law in this State that the legislature may delegate to municipalities the power to legislate against crimes, already denounced by the general State law (People v. Hanrahan, 75 Mich. 611 [4 L. R. A. 751]), but it is. insisted that under the decision in People v. McGraw, supra, the power reserved to municipalities with reference to control of its streets extends only to such subjects as are not covered by the general State law. In our opinion, this decision should not be given any such construction. The force of that decision is that the rule of conduct established by the State with reference to the highways of a municipality cannot be relaxed or made less stringent by a city ordinance, but incidents that may be found necessary by the legislative body to enforce the rule of conduct are not what was contemplated in the previous decision when we said that the ordinance should not contravene the State láw. There is no question in the instant case that the rule of conduct established by the ordinance does not contravene the State law, in that it does not make it less stringent or relax it. The recording with the secretary of State of the infractions of the State law and the other requirements of the statute for recording and certifying the convictions, are merely incidents of the enforcement of the statute that do not affect the rule- of conduct therein prescribed. In the decision of People v. McGraw, supra, it was held that section 9 of Act No. 318 of the Public Acts of 1909, which attempted to prohibit municipalities from passing local ordinances with reference to motor vehicles, was unconstitutional and void, as it interfered with the constitutional right of a municipality to the reasonable control of its highways. Section 28, art. 8, Constitution of 1909. If the contention of counsel for respondent is sustained in this case, the legislature might, by indirection, prohibit the municipality from legislating on the subject by providing, as they did in the law now being considered, for a system of recording or certifying convictions to the secretary of State. The legislature cannot do by indirection that which it cannot do directly.

The writ will issue as prayed for, but without costs to either party.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.


text:
    MAHDER v. SOULE.
    Mobtgages — Payment—Discharge.
    On a bill for the discharge of a mortgage, the finding of the court below that said mortgage was included in the amount of another mortgage which has been fully paid, and therefore plaintiff was entitled to the relief prayed, field, sustained by the record.
    Appeal from. Ottawa; Cross,. J.
    Submitted June 5, 1919.
    (Docket No. 57.)
    Decided July 17, 1919.
    Bill by Anna L. Mahder against Fay F. Soule for the discharge of a mortgage. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Louis H. Osterhous, for plaintiff.

      Charles E. Misner, for defendant.
    Plaintiff by her bill of complaint in this cause sought to have a certain mortgage declared paid and discharged of record. Defendant has appealed from a decree of the circuit court granting the relief prayed for. The circumstances disclosed by the evidence are as follows. On November 10, 1909, Charles E. Soule, an attorney of Grand Haven, acting as agent for a Mrs. Cummings, whose funds he had for investment, loaned $275 of her money to one Dwight H. Cheese-man, taking the promissory note of said Cheeseman and wife, of which the following is a copy:
    “$250.00 Grand Haven, Mich., Nov. 10, 1909.
    “Within six years after date, we, or either of us, promise to pay Fay F. Soule, trustee, or bearer, two hundred seventy-five dollars at National Bank here, in sums and at dates, viz.: Nov. 10, 1910, $25 and $50 per year for' five years thereafter at said date, with, interest at 6% per year on all unpaid amounts, payable semi-annually, for value received.
    “Dwight H. Cheeseman, and
    “Maria Cheeseman.”
    —and a collateral mortgage, executed by Cheeseman and wife to “Fay F. Soule as trustee for the holder of the promissory note hereinafter mentioned, and without other interest,” covering lots 5, 6, 7, 8 and south half of lot 4, in block E, of the village of Robinson, Ottawa county; also the southeast quarter of the northeast quarter of section 13, town 7 north, range 15 west, in Robinson township in said county. Fay F. Soule is the son of Charles E. Soule. The purpose in making the note and mortgage run to a trustee was thus explained by Mr. Soule in his testimony:
    “I made them in such shape that I could sell the mortgage and the note without any indorsement, without any assignment, and I could tell people now there won’t anybody know that you hold that paper at all, your name isn’t mentioned in there, it goes to my son as trustee, and there don’t anybody know you hold it, and that is quite an object in making that kind of loan, and it transfers just exactly like a hundred dollar bill, by delivery.”
    The mortgage was a first - lien on the village lots and a second lien on the 40-acre farm, on which latter the Grand Haven State iBank held the first mortgage. Following is a chronological history of the transactions affecting this note and mortgage and the lands which it covered;
    1910
    Sept. 15 Mr. Soule, as agent for both Mrs. Cummings and a Mrs. Duryea (whose funds he also had for investment) took over the note and mortgage for Mrs. Duryea, paying over from Mrs. Duryea’s funds to Mrs. Cummings’ funds the amount of principal and interest then due on the said note and mortgage. This transfer was made without indorsement or assignment.
    Oct. 7 Cheeseman and wife conveyed the village lots covered by the mortgage to William Foster, by warranty deed with full covenants, not excepting the mortgage.
    Nov. 15 Foster paid the interest- on the note and mortgage to Nov. 10th, also $25 on account of the principal, and deeded the village lots to Samuel Mahder.
    Dec. 5 Cheeseman and wife conveyed the farm property to Frank Allen by warranty deed with full covenants, not excepting the mortgage.
    Dec. 30 Allen paid in full the mortgage given to the Grand Haven State Bank which was the first lien on the farm property. (This mortgage had been taken over by Mr. Soule from the bank, in order to protect the second mortgage, and foreclosure proceedings had been instituted by him.) This payment left Mrs. Duryea’s mortgage the first lien on the farm property as well as on the village lots.
    1911
    Mar. 13 Samuel Mahder conveyed the village lots to Anna Lascobar, who is the plaintiff herein, having afterwards, by marriage to said Samuel Mahder, become Anna Mahder.
    Apr. 26 Anna Lascobar executed a new note and mortgage to Fay F. Soule, trustee, for $550, due three years after date, covering the village lots and other property.
    It is the plaintiff’s claim that this new note and mortgage were given in payment of the balance of the Cheeseman note and mortgage, $250, and that she received in addition $290 in cash, Mr. Soule charging $10 -for his services; and that the old note and mortgage ought, therefore,- to have been surrendered, canceled and discharged. What the real facts were in connection with this transaction of April 26, 1911, is the principal question in issue.
    Plaintiff’s version of the matter is thus stated by her counsel in his brief:

      “Early in April, 1911, the plaintiff needed some money for the purpose of making- repairs upon the house on the premises and' applied to the Peoples Savings Bank, of which Charles E. Soule was a director and for which he was attorney, for an additional $300 loan on the lots and other lands. Later Mr. Soule and the cashier of the bank went out to the property and looked it over and advised Mrs. Mahder that the bank could not make the desired loan upon the premises, but that if she would come down to Grand Haven and see Mr. Soule, he might be able to arrange the loan for her. Mr. Soule gives as his reasons for advising the bank not to make the loan: first, under the law the bank could not take a second mortgage, and second, that the value of the property was not more than $750 or $800, and was not, therefore, sufficient security.
    “Mrs. Mahder later went to Grand Haven and saw and talked with Mr. Soule, in the directors’ room of the Peoples Savings Bank, and there, on April 26, 1911, she completed negotiations with him, executing and delivering at his request, payable to Fay F. Soule, as trustee, a promissory note for $550, due three years after date and secured by mortgage upon the village lots and other property.
    “Mrs. Mahder claims that upon the execution and delivery of the $550 mortgage, Mr. Soule paid to her in currency the sum of $290, being the $300 loan she had been seeking, less a charge of $10 for examination of abstract and preparing the mortgage; that the $250 Cheeseman mortgage and the new $300 mortgage were merged in the new mortgage for $550; that the $250 mortgage was in that manner fully paid and satisfied and should have been discharged.
    “Thereafter Mrs. Mahder regularly paid to Mr. Soule the interest upon the $550 mortgage; on April 25, 1914, she paid $170 upon the principal; and, on or about May 2, 1914, she paid the balance due upon the mortgage in full to Charles E. Soule, and the same was discharged May 18th.
    “At no time after April 26, 1911, although for three years she was baying interest to him upon the $550 mortgage and eventually paid all of the principal, did Mr. Soule say anything to the plaintiff, nor did the plaintiff say anything to Mr. Soule, concerning the $250 mortgage, and no claim was at any time made by Mr. Soule to her that the $250 mortgage had not been paid, and she was never asked for the payment of interest or any other sum on account thereof.”
    Defendant’s version is thus set forth in his counsel’s brief:
    “Plaintiff called Mr. Soule into a room, away from the cashier and Dr. BeKleine, said she had to have the money and asked him if he would not get it. This is Mr. Soule’s testimony, and, to this point, there is no conflict. Plaintiff testifies,—
    “ ‘She took Mr. Soule Into another room and told him she had to have the money, and he asked her what she wanted to do with the money.’
    “In this there is conflict:
    “ ‘She said Mr. Mahder was in trouble in Chicago and she had to have the money to help him out.’
    “She says, in reply to his question:
    “‘Well, I want to fix my place up.’
    “She denies she told him she wanted the money to help Mahder out of trouble; denies there was any trouble. She admits she eloped with him from Chicago, where he deserted his family there.
    “Mahder testifies:
    ‘“He was arrested in Chicago for living an adulterous life out here with Mrs. Lascobar, the plaintiff in this case.’
    “Mr. Soule says he told her if she would come to Grand Haven after he could examine the title, he might help her out, and made an appointment for April 26th. She contradicts. Mahder says Mr. Soule would send a card and could see him at Peoples Savings Bank. She met him in bank directors’ room, April 26th. He says no one else was present; she says that Mahder was there, her 'husband.’ Mahder denies he was her husband, says:
    “ ‘At that time he was living on this property with Anna Lascobar, and he went down to the Peoples Savings Bank where they met Mr. Soule in the directors’ room.’

      “Mr. Soule had looked up the two titles without abstracts; Mrs. Lascobar wanted, ‘had to have,’ $400 to free Mahder from his troubles in Chicago by her eloping with him, deserting his family there. Mr. Soule makes it $400 positively from her wanting that amount from the bank, and his paying her $890 by his check, $10 less as part of commission, which she indorsed and put through the bank regularly, her indorsement admitted by her and Mahder.
    “She ‘had to have the money,’ and agreed to make a note and mortgage for $550; $60 for Mr. Soule’s commission, $100 for his legal opinion and effort to have the Allen farm pay the mortgage, and $390 she was to have in money; a note was made for $550, payable to Fay F. Soule, or bearer, secured by a mortgage quite identical with the Cheeseman mortgage, due three years after date with interest at 6 per cent., payable semi-annually, the mortgage to ‘Fay F. Soule, as trustee for the holder of the promissory note hereinafter mentioned, and without other interest’; Mr. Soule drew the papers and she signed them and Mr. Dornbos, the cashier, and Mahder were called in for acknowledgment and witnesses; he gave her his check of Mrs. Edmonds’ money he then had to loan for $390, which she indorsed and put through the bank regularly; he charged in his journal that day, Mrs. Shirley Edmonds to bills receivable, $550; bank, $390, fees $160. This is Mr. Soule’s testimony. * * *
    “The testimony shows that plaintiff received the following cheek:
    ‘“Grand Haven, Mich., April 26th, 1911. No. 2869.
    “ ‘The Peoples Savings Bank of Grand Haven: Pay to Anna Lascobar, or order, ?390, Three hundred ninety dollars.
    “‘Chas. E. Souue.’
    “Indorsed on back:
    “ ‘Anna Lascobar.’
    “Bank’s stamp on face:
    “ ‘Peoples Savings Bank of Grand Haven. Paid April 27th, 1911.’
    “Plaintiff admitted that this was her name on there, and she wrote if there herself. * * *

      “The other item, which makes up the amount of the ‘Lascobar mortgage,’ $100, was by virtue of an agreement between Judge Soule and' plaintiff. The Cheeseman mortgage covered two parcels of land, Robinson village lots and 40-acre farm. The former being sold first to plaintiff, and later the farm was sold to one Allen. Judge Soule informed plaintiff that he believed the Allen forty would have to pay the Cheeseman mortgage, amounting to $250, as neither deed made any mention of the mortgage.
    * * * “An agreement was made whereby Mr. Soule was to receive $100 to look after this matter and have the Allen 40 pay the mortgage. Mr. Soule performed his part of the agreement, in upholding his legal opinion. In the cáse of Allen v. Soule (191 Mich. 194) he defended the suit, and made a defense both in the circuit and Supreme Court. This case cost Mr. Soule more than $139 in cash for- fees and costs and he received no compensation for services in either court. * * *
    ► “The final item which makes up the amount of the ‘Lascobar mortgage of $550’ is $60, paid to Charles E. Soule for examining two titles without abstracts, making papers, and getting her the money. The question is not whether this commission is excessive, but is this the amount? Mr. Soule candidly admits that he charged plaintiff a large commission because of the adulterous relations with Mahder, and she had to have the money to get him out of trouble.”
    The suit of Allen v. Soule, above referred to (see 191 Mich. 194) arose in this way: In December, 1910, Mr. Soule had given to Mr. Allen a written agreement to discharge the $250 mortgage from the 40-acre parcel, in consideration of the payment of $35 to Mr. Soule, not to be applied on account of the mortgage. It is. Mr. Soule’s claim, however, that though Mr. Cheeseman paid this $35 to Mr. Allen, the latter never turned it over to Mr. Soule. Later Mr. Allen went to Mr. Soule and offered to purchase the mortgage from him, but Mr. Soule refused to sell it. Mr. Allen then filed a bill, asking for a decree requiring the village lots to be sold first in any foreclosure proceedings which might be brought. The decree was granted, and was affirmed on appeal.
    Relative to the $390 check above referred to, it is plaintiff’s claim that she did not receive such a check and cash it on the following day, but that she was paid only $290, and this in currency and at the time of the signing of the papers. She admits that the signature on the back of the check is hers, but says that Mr. Soule must have asked her to place her signature there when she was signing the other papers, without explaining to her what it was.
    It is defendant’s claim that on June 20, 1911, the Cheeseman note and mortgage were sold and transferred by delivery to one David Alston, who held them until September 24, 1912, when he sold them to the Peoples Savings Bank. That the bank later sold them to a party in Chicago, and that in May, 1917, a Chicago attorney forwarded the papers for the purpose of having the mortgage foreclosed for one Woodhouse, claimed to be the present owner. Upon learning that foreclosure proceedings by advertisement had been commenced, plaintiff filed her bill of complaint in the present proceeding.
    The learned chancellor, after hearing the testimony, made the following findings:
    “Charles E. Soule claims that the $250 mortgage was not included in the $550 mortgage, but claims that although the plaintiff honestly owed the $250 mortgage and was willing to pay the same, that he, Charles E. Soule, conceived the idea of making an innocent party pay the debt of the plaintiff, that for this advice to the plaintiff he charged her the sum of one hundred dollars and that he also charged her the sum of sixty dollars as a commission for making the loan to her, and that as a balance of the consideration for the $550 mortgage he let the plaintiff have the sum of $390.
    “It appears that from the time the $550 mortgage was given, no interest was demanded or paid upon the $250 mortgage, until the present foreclosure proceedings were commenced. Plaintiff paid the interest promptly upon the $550 mortgage, and has paid the principal in full.
    “It is clear that the $250 mortgage was included in, and paid by the payment of the $550 mortgage, and that the same having been fully paid should be discharged of record.
    “At the time of the making of the $550 mortgage, Charles E. Soule was the agent and attorney of the defendant and had full power and authority to collect and discharge the $250 mortgage, and the same having been fully paid to him, the plaintiff is entitled to a decree discharging the same of record.”
    From a decree made in accordance therewith, defendant appeals.
   Kuhn, J.

(after stating the facts). This, record presents one question for decision, Was the $250 Cheeseman mortgage included in and paid by the $550 mortgage given by the plaintiff to the defendant? This raises simply a question of fact. It is indeed most unfortunate that a controversy such as this, arising between an attorney of long and reputable standing at the bar and his client, finds its way to this court. In the decision of the case, however, as in all others, we must be guided simply by what the record discloses, weigh the testimony with care, and determine whether or not the plaintiff’s case has been established. This being a chancery case, the cause is heard here de novo, and it is our duty, as was said in Oliver v. Baldwin, 201 Mich. 360, to exercise independent judgment in passing upon the evidence in this case. We cannot, however, overlook, in determining this question of fact, that the circuit judge who heard the case below, who knew the witnesses, had the opportunity of seeing them on the witness stand, and heard their manner of giving their testimony, had certain advantages which we do not possess in arriving at the truth with reference to the issue involved. It would not profit any one for us to attempt in this opinion to review the conflicting testimony. It is sufficient to say that after a reading of the entire record and a careful consideration of the claims of counsel with reference to the disputed facts, we are forced to the conclusion that the material question of fact involved upon this record as presented was correctly determined by the trial judge, whose decree, therefore, must be affirmed, with costs, to the appellee.

Bird, C. J., and Ostrander, Steere, Brooke, Fellows, and Stone, JJ., concurred. Moore, J., did not sit.


author: Ostrander, J.

text:
    CITY OF DETROIT v. TRIANGLE LAND CO.
    Taxation — Injunction—Res Judicata — Writ of Assistance.
    On. a bill by tbe city of Detroit to enjoin tbe service of a writ of assistance, on tbe ground that it was entitled to bave tbe value of improvements admeasured and set off to it, and that defendant tax title purchaser was entitled to tbe interest in tbe land only, independent of tbe building, where said question was decided adversely to plaintiff’s claim in a former decision by tbe Supreme Court, tbe decree of tbe court below dismissing tbe bill was proper.
    Appeal from Wayne; Hosmer, J.
    Submitted June 6, 1919.
    (Docket No. 76.)
    Decided July 17, 1919.
    Bill by the city of Detroit against the Triangle Land Company and another to enjoin the service of a writ of assistance. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Walter Barlow {Clarence E. Wilcox, of counsel), for plaintiff.

      Frederick E. DeCamp {Albert DeCamp, of counsel), for defendants.
   Ostrander, J.

After the decision in the cause of Triangle Land Co. v. City of Detroit, 204 Mich. 442, the Triangle Land Company was granted a writ of assistance, which writ was placed in the hands of the sheriff for service. This upon the order of a judge of the Wayne county circuit court. Service of the writ was temporarily enjoined, upon the filing of the bill in this cause, by another judge of the Wayne county circuit court. Thereupon the bill was answered and such proceedings were had that on April 5, 1919, a decree dismissing the bill was entered. From that decree the city of Detroit has appealed.

The land in question is lot 3 and the westerly one-half of lot 2, in block 55, of the Woodbridge farm as divided by commissioners in partition. The title to the land of the Triangle Land Company résts upon a tax levied theyeon for the year 1907, the property being assessed April 1, 1907, the roll confirmed May 2, 1907. It was vacant property when assessed. The city purchased it of the owner May 22, 1907, for $2,250 and immediately erected thereon a building at a cost of more than $20,000 for use of its fire department. It is the claim of the city that the tax title holder and owner became possessed at the tax sale of only the interest in the land independent of the building and that the building is an interest which belongs to the city. It seeks in this suit to have the value of the improvement as distinguished from the value of the land admeasured and set off to it, either in partition proceedings or by a sale of the premises and a division of the proceeds of the sale.

The defendant Triangle Land Company claims that it owns the premises as they are, and claims further that all the rights of the parties were adjudicated in the case of Triangle Land Co. v. City of Detroit. In that case, in resisting the application of the Triangle Land Company for a writ of assistance to put it. in possession of the lands, the city set up the fact of the improvement and made a claim to the building as an improvement. Supplemental briefs were asked for by this court upon the subject of the discretionary power of a court of chancery to impose terms in granting a writ of assistance. After the opinion was filed, there was a motion for a rehearing by the city of Detroit, in which it was insisted that the court failed to consider its prayer that the city be allowed for improvements. The rehearing was denied. It is clear, therefore, that the question now presented was before the court in the original proceeding and was determined adversely to the contention of the city. We held:

“We are constrained to conclude that plaintiff has shown a compliance with requirements of the tax law establishing legal rights which it is entitled to maintain by this proceeding as the statute authorizes.”

In short, we held that the Triangle Land Company was entitled to have the writ of assistance to put it in possession of the land as it was. Independent of this, we know of no statute and of no rule of law which sustains the contention of the plaintiff in this suit.

The decree of the court below is affirmed, with costs to appellee.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Osteandee, J.

text:
    COZADD v. PARROTT.
    Fraudulent Conveyances — Bill in Aid of Execution — Evidence —Sufficiency.
    On a bill in aid of execution to set aside the conveyance of certain lots by the debtor to his present wife, in pursuance of an ante-nuptial contract whereby she paid about one-half of the value of the lots at the time of the transfer, said conveyance being alleged to be in fraud of plaintiff’s rights as a creditor, testimony that the debt represented by the judgment is a part of the cost of constructing a house upon the premises in question, and that defendant did not intend to pay the debt, held, to justify the decree of the court below setting aside said conveyance, but subject to the claim and lien of the wife for the amount paid.
    Appeal from Oakland; Smith, J.
    Submitted June 5, 1919.
    (Docket No. 64.)
    Decided July 17, 1919.
    Bill in aid of execution by Charles C. Cozadd against William T. Parrott and another. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Perry & Lynch, for plaintiff.

      Fitzgibbon & Quail, for defendants.
   Osteandee, J.

The bill is filed in aid of execution. It charges that on April 13, 1916, plaintiff recovered a judgment before one of the justices of the peace in and for the county of Wayne against defendant William T. Parrott for $323 damages and $6.45 costs of suit, that on or about April 26, 1916, plaintiff caused a transcript of said judgment so rendered to be filed in the circuit court for the county of Oakland “pursuant to the statute in such case made and provided,” that previous to the rendition of said judgment said William T. Parrott was the owner in fee simple of lots 4 and 5 of the University subdivision of the village of Orion, according to the plat thereof, that on April 26, 1916, a writ of fieri facias was issued, directed to the sheriff of Oakland county, where such real estate is situated, that William T. Parrott is a resident of Wayne county and has no goods or chattels in Oakland county, that on June 26, 1916, the sheriff levied said execution on said lots. It is further charged that prior to the rendition of said judgment, but after the indebtedness had accrued, and on December 22, 1915, defendant William T. Parrott made a pretended conveyance of said lands to Minerva J. Little, the other defendant, for the pretended consideration of one dollar, recorded in the office of the register of deeds for Oakland county, that the conveyance was not real, but was a sham, made with the intention of defrauding plaintiff out of his just demands, that no consideration was paid by said Minerva J. Little to said V/iliiam T. Parrott for said conveyance and that the said premises are now held by said Minerva J. Little in trust for said William T. Parrott and for his use and benefit and for the purpose of preventing a levy and sale of the land under and by virtue of said execution, that since the making of said pretended conveyance the said William T. Parrott and Minerva J. Little have intermarried and said Minerva J. Little is now Minerva J. Parrott.

Five interrogatories are incorporated in the bill, which are:

“1st. For what purpose was the said lots 4 and 5 of the University subdivision of the village of Orion aforesaid conveyed to said Minerva Parrott by said William T. Parrott?
“2d. How much money was paid by the said Minerva Parrott to the said William T. Parrott for said lands?
“3d. If anything other than money was received as a consideration for said land, state specifically in what the same consisted?
“4th. How much money has been at any time paid by the said Minerva Little to the said William T. Parrott for said lands?
“5th. Please state in what form the consideration for said lands was paid, if by check, the date and amount and the banks upon which the same was drawn, and if cash, what disposition was made of the money and where the same was deposited?”

The prayer is that the said conveyance of said lots may be set aside and vacated and declared to be null and void and that plaintiff be authorized to proceed upon his writ of fieri facias, or issue another writ as may be necessary, and the sheriff be directed to proceed to levy upon, advertise and sell tíae said lands and premises for the payment and satisfaction of plaintiff’s said judgment.

. There is a joint and several answer, in which, denying some of the material facts charged in the bill, the interrogatories are answered as follows:

“1st. Said land was conveyed to the said Minerva Little in accordance with‘a certain ante-nuptial agreement and settlement entered into by Minerva Little and Wm. T. Parrott.
“2d. Said Minerva Little paid this defendant in money, the sum of $1,012.31, the other considerations, for said land being a promise to marry and a waiver by Minerva J. Little of her right of dower in the estate of this defendant.
“3d and 4th. This defendant considers interrogatories 3 and 4 answered in interrogatory 5, money received as above set forth was deposited in Dime Savings Bank, Detroit, Michigan.”

The cause coming on to be heard in open court, testimony was introduced and a decree was entered setting aside the said conveyance, but subject to the claim and lien of Minerva J. Parrott for $1,012.31, and the sheriff is authorized to proceed to advertise and sell the premises in default for 30 days, of the payment of the amount of the said judgment and costs.

At the hearing, counsel for plaintiff made a statement of the case, not very complete, and when he had concluded counsel for defendant said:

“Counsel concedes those statements. I don’t know that there is anything more for us to say. That is correct as far as the obtaining of a judgment is concerned and the consideration — ”

The testimony includes that of the file clerk in the office of the clerk of Wayne county, who testified:

“I have the files of this case with me, transcript 7461. The suit was brought against Wm. T. Parrott in the justice court of the city of Detroit, in April, 1916, on a note and a judgment for $323.00 and costs $6.75, was rendered against Wm. T. Parrott in favor of Charles Cozadd on April 13, 1916.”

The register of deeds for Oakland county was called and testified:

“On page 292, liber B, there was a levy on the property covered by the bill of complaint, on the 26th day of June, 1916.” v

This is the proof, and all of it, of a judgment and levy. There is. no proof of a transcript, how it was taken, from what court to what court. The bill alleges a transcript from a justice of the peace of Wayne county filed in the circuit court for Oakland county, pursuant to the statute. This allegation is not admitted by the answer. It is said in the brief for the appellants that there is no machinery of law whereby plaintiff can obtain a transcript from the Wayne county justice and file it directly with the Oakland circuit court. No question was made at the hearing that there was any infirmity in the proceedings leading up to the issue of the execution and the levy. In the brief for appellee it is said:

“As to the contention now raised in appellants’ brief as to the method of procedure we have only this to say. We have made no investigation as to whether or not his contention is accurate but we believe our procedure to have been the correct one and besides the judgment in question and all the proceedings in regard to the same were admitted on the trial without any objection and without\the point in question being raised and if there were any force in their contention it cannot be raised now.”

We cannot say what proof would have been made if timely objection had been made.

Plaintiff further offered the record of a deed from William T. Parrott to Minerva J. Little, dated December 22, 1915, and recorded December 29, 1915, and rested. We shall assume, as counsel and the court below assumed, that the only question to be determined was the one arising upon the merits.

It appears that on or about November 1, 1915, the parties defendant made an agreement which reads as follows:

“This agreement entered into this 1st day of November, A. D. 1915, by and between William T. Parrott and Minerva J. Little, both of the .city of Detroit, Michigan.
“Whereas the respective parties hereto, both being unmarried, do hereby mutually agree and solemnly promise to marry each other. In further consideration of the mutual promises of marriage hereby mutually offered and hereby accepted, the said William T. Parrott hereby agrees to deed to Minerva J. Little and hereby does settle upon the said Minerva J. Little, lots four (4) and five (5) of the University subdivision in the village of Orion, State of Michigan, as and for an ante-nuptial agreement and settlement, and the said Minerva J. Little agrees to pay said William T. Parrott the sum of one thousand twelve and 31/100 dollars ($1,012.31), the receipt of which is hereby acknowledged by the said William T. Parrott, for said property in acceptance of said ante-nuptial settlement and said Minerva J. Little hereby agrees to waive her • right of dower in the estate of William T. Parrott.
“The covenants contained in the above ante-nuptial settlement and agreement are hereby mutually offered and accepted.
“William T. Parrott,
“Minerva J. Little.
“In presence of:
“J. Gilbert Quail.”

There is proof that Minerva J. Little paid defendant William T. Parrott $1,012.31 and that the deed executed in December was executed pursuant to the said agreement and payment. Defendant William T. Parrott testified, among other things, as follows: .

“Q. At the time you made this deed, in December, 1915, you conveyed away all the property that there was any record of that you owned?
“A. Yes, sir.
“Q. The consideration was $1,031?
“A. Yes, sir.
, “Q. Do you think that was a valuable consideration for it?
“A. No, sir.
“Q. Then, why did you make it?
“A. Because Mrs. Little had more interest in the property than I had and was done so she would be protected.
“Q. You knew the notes were outstanding?
“A. Yes, and I intended to pay them.
“Q. What is a fair value for the property at the time the deed was made, not now?
“A. Probably $2,000 or $2,200.”

There was testimony that at the time of the hearing the property was worth from $3,000 to $3,500. There is testimony, too, that the debt represented by the judgment is a part of the cost of constructing the house upon the premises in question, for which William T. Parrott gave his notes to the builder, and that defendant William T. Parrott did not intend to pay the notes, which were merged in the judgment, because he considered himself aggrieved by conduct of the builder, whose work he claims was not all satisfactory.

We are impressed that there was testimony supporting the decree which, as has been pointed out, secures to Minerva J. Parrott a lien upon the premises for the money she paid as consideration for the deed to her.

The decree will therefore be affirmed, with costs to appellee.

Bird, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    McCRILLES v. SUTTON.
    Specific Performance — Contract Making Foster Son Heir —. Construction.
    In proceedings against the heirs of plaintiff’s foster mother for the specific performance of a contract between plaintiff and his foster parents, contract construed, and held, to support the finding of the court below that it was the intention of the parties that plaintiff should be an heir at law of both foster parents and have such portion of their property as an heir at law would take.
    For authorities passing on the enforcability of contract to give child share of estate in consideration of the surrender of the child to promisor, as affected by statute prescribing mode of adoption, see notes in 8 h. R. A. (N. S.) 1130; 46 L. R. A. (N. S.) 1134.
    Appeal from Lenawee; Chester, J., presiding.
    Submitted June 3, 1919.
    (Docket No. 6.)
    Decided July 17, 1919.
    Bill by Oliver J. McCrilles against S. Floyd Sutton and others for the specific performance of a contract. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Earl C. Michener, for plaintiff.

      B. D. Chandler, for defendants.
   Ostrander, J.

The bill is filed for specific performance of a written contract, reading as follows:

“Know all men by these presents, that we, James R. McCrilles of the township of Medina, county of Lenawee, and State of Michigan, and Sarah Jane Mc-Crilles, wife of said James R. McCrilles, parties of the first part, and Oliver J. McCrilles of the same place, party of the second part, have and do, this, the twenty-third day of August, in the year one thousand eight hundred and ninety-four, make and execute under our hands and seals the following agreement: for that, whereas, the said party of the second part was the son of a deceased sister of Sarah Jane McCrilles, one of the parties of the first part, herein, and whereas, said sister died when the party of the second part, herein, was but six weeks old, and was then at the time of his mother’s death given by James Holliday, his father and husband of said deceased, sister to the parties of the first part, to be by them adopted as their own child and heir, and was by them, accepted as such in good faith, and given by them their family name, by which name, alone, he has been and is known and called; and whereas he has always been promised, by the parties of the first part, that he should have the same worth of property, in all respects, as their own son upon the death of James R. McCrilles, one of the said parties of the first part, herein, and whereas, in consideration of such promises, he has served the parties of the first part faithfully, which services the parties of the first part hereby acknowledge, and that they owe him a large amount of money. Therefore, and whereas, the parties of the first part had hitherto supposed that the party of the second part had by them been legally adopted under the laws of this State, but on examination no record of such action can be found.
“Now, therefore, in consideration of love and affection, and of the foregoing premises, and the promises and undertakings made by the parties of the first part to the party of the second part, and in consideration of the services performed by the party of the second part for the parties of the first part set forth in said premises, all of which the parties of the first part do hereby confess and acknowledge; have undertaken and promised and do hereby undertake and promise the party of the second part, that, at the death of James R. McCrilles, one of the parties of the first part, herein, he, Oliver J. McCrilles, party of the second part, shall have the same rights in all respects to the property, real, personal, and mixed, of the parties of the first part as he would have had if he had been duly and legally adopted by them, according to the law of this State. For the performance of which, the parties of the first part hereby bind themselves, their heirs, executors and administrators.
“And the party of the second part, relying on the promises and undertakings of the parties of the first part, as above set forth, has and does hereby relinquish all claims and demands whatsoever against the parties of the first part.
“In witness whereof, the parties hereto set their hands and seals the day and year first above written.
(Signed) “James R. McCrilles (S).
“Sarah Jane McCrilles (S).
“Oliver J. McCrilles (S).
“Signed and sealed in presence of
“J. C. Sawyer,
“T. L. Sawyer.”

Defendants are heirs at law of Sarah Jane Mc-Crilles, deceased. Nine of the defendants answered the bill, it was taken as confessed by one, and the others filed disclaimers. James R. McCrilles died April 1, 1904, and Sarah Jane died May 27, 1917. When the contract in question was executed, plaintiff was of full age. After the contract was made, and under date April 9, 1901, James R. McCrilles made a deed conveying to his wife certain lands in Michigan and Ohio, 120 acres in all, reserving to himself a life interest therein, which deed was recorded May 14, 1904. When she died, Sarah Jane owned 40 acres of this land. This 40 acres is the only land described in the bill of complaint. On April 19, 1901, James R. and Sarah Jane deeded to plaintiff 440 acres of land, James R. reserving to himself a life use of a portion of it. It is not disclosed that at this time James R. McCrilles owned any other property, or that he died leaving property. It does not appear that at the date of executing the contract Sarah J. McCrilles had any property. When she died, she had, besides the 40 acres of land, personal property valued at $4,500. A decree passed for plaintiff for specific performance of the contract and that plaintiff take of the property of Sarah Jane McCrilles the same share and portion as a son and only child; that, after paying debts and funeral expenses, plaintiff is decreed to be owner of all property of which she died seised or possessed, and the probate court is directed to make an order assigning the estate accordingly. Nine defendants have appealed, and they contend that by the language of the contract no separate property of Sarah Jane Mc-Crilles is involved, that the contract had been fully performed at the death of James R. McCrilles. When the contract was made, the law with respect to the descent of real property was that in the absence of children or the issue of children of the intestate it descended to all his other lineal descendants, the widow being entitled to dower therein.

Appellants point out in the contract the language in the preamble or inducement,—

“that he should have the same worth of property, in all respects as their own son upon the death of James B. McCrilles;’

—and in the body of the agreement the language,—

“that, at the death of James B. McCrilles, one of the parties of the first part, herein, he, Oliver J. McCrilles, party of the second part, shall have the same rights in all respects to the property, real, personal, and mixed, of the parties of the first part as he would have had if he had been duly and legally adopted by them.”

While the repeated reference to the death of James R. McCrilles as the date of accession of plaintiff to his rights under the contract has a tendency to support the interpretation placed on the contract by the appellants, we are satisfied that the general manifest intention to make of plaintiff an heir at law of both parties of the first part, and that he should have such portion of their property as an heir at law would take, is controlling of the meaning to be given to the contract.

This meaning supports the decree of the court below, which is affirmed, with costs to appellee.

Bird, C. J., and Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Fellows. J., did not sit.


author: Steere, J.

text:
    DETROIT LUMBER CO. v. OAKLAND CIRCUIT JUDGE.
    Dismissal — No Progress — Abuse of Discretion — Reinstatement.
    Where after a chancery case was at issue it was placed upon the calendar and automatically went upon each succeeding term calendar and finally was transferred to the “no progress” list and dismissed by the court in pursuance of the judicature act (3 Comp. Laws 1915, § 12574), without being reached or ever having been called for hearing, because of stress of business and illness of the judge, although counsel were anxious to try said case and had so advised the court and clerk, its dismissal was premature and not within the discretion of the court.

      Mandamus by the Detroit Lumber Company to compel Kleber P. Rockwell, circuit judge of Oakland county, to vacate an order denying a motion to reinstate a cause of action.
    Submitted June 3, 1919.
    (Calendar No. 28,436.)
    Writ granted July 17, 1919.

      Berger & Milburn, for plaintiff.

      Anderson, Wilcox, Lacy & Lawson, for defendant.
   Steere, J.

On September 13, 1917, the then presiding judge of Oakland county circuit court dismissed for want of prosecution a chancery suit pending in that court, numbered 7155, entitled Detroit Lumber Company v. Wilson Construction Co., et al., appearing upon the calendar of that term as a case in which no progress had been made for more than a year. On learning of this counsel for plaintiff moved to set aside the order of dismissal, which was denied and application was then made to this court for a writ of mandamus .to compel defendant, now the judge of said court, to set aside the .order of dismissal and reinstate said suit for hearing. To an. order to show cause why a writ should not be granted, return and answer were duly filed presenting issues which resulted in the following order by this court:

“On reading the motion of Detroit Lumber Company, relator, in the above entitled cause, and the brief of said relator, and the answer and brief of respondent thereon, and due consideration thereof having been had by the court. It is hereby ordered and adjudged that issues be framed in said cause as follows :
“First: Did the clerk of the court, of the sixth judicial circuit, for Oakland county, Michigan, mail or deliver to the attorney or attorneys for the relator, a copy of the printed calendar of the September, 1917, term of said court at any time prior to the first day of said term of court?
“Second: Was the case of the Detroit Lumber Company, plaintiff, v. Wilson Construction Company, et al., defendants, brought in the circuit court for the county of Oakland, in chancery, known as No. 7155 not heard and tried prior to its dismissal on September 13, 1917, by reason of the business of the court being such, prior to that time, that the same was not reached?
“Third: Did relator, its agents or attorneys, as plaintiff in the case of Detroit Lumber Company, complainant, v. Frank E. Carter, et al., defendants (Case No. 7155, Oakland county circuit court in chancery), make diligent and proper effort to have said cause brought on for trial during its pendency?
“And it is further ordered that these* issues be referred and sent down to the circuit court for the county of Lapeer, with directions to take testimony therein and report the same with findings thereon to this court.”

Pursuant to this reference the circuit court of La-peer county had a hearing, took testimony, made findings upon the three issues favorable to plaintiff’s contention, and duly reported the same to this court.

The suit in question was begun by plaintiff in the circuit court of Oakland county by a bill of complaint for the enforcement of a mechanic’s lien. Various intermediate steps, were taken by the respective parties until pleadings were perfected. . The case was finally fully at issue by February 29, 1916, although a note of issue was filed by plaintiff on November 20, 1915. It was placed upon the printed calendar of that court for the January term, 1916, and plaintiff’s counsel requested the clerk in writing to notify them when the case would be brought on for hearing. It was the custom of the judge of that court during each term to weekly make up his call of cases and give a list of them to the clerk with directions to notify the attorneys representing cases on call that they were set for hearing. Plaintiff’s counsel were familiar with that custom. No such notice was ever received by them.

On November 1, 1916, plaintiff’s counsel wrote the clerk of the court asking what position the case occupied on the docket and “if possible also let us know about when we may expect it to be reached for trial, as both parties are anxious to have this matter tried and disposed of.” To this the clerk replied on November 25, 1916, advising counsel to take the matter up with the judge of the court, who, he suggested, would give a definite date. The case appeared upon the calendar for the January, 1917, term of court and plaintiff’s counsel, as suggested by the clerk, wrote the circuit judge on January 10, 1917, asking for a date of hearing, to which the judge replied, on January 21, 1917, stating that after examining the pleadings in the case he estimated it would take at least a week to hear it; that he did not find it profitable to deprive attorneys and clients of an opportunity to be heard in short cases for the sake of disposing of a long one, and in view of the number of cases ahead of it he thought the case would go over until the March term, concluding:

“If all the attorneys live in Detroit, I make the suggestion that you stipulate a transfer of this cause to Wayne county. With ten judges you might be able to get it heard earlier than I can dispose of it.”

On receipt of this reply a copy was sent to opposing counsel who were not favorably impressed and offered the suggestion, “It would take more time to get a Wayne county judge to try this case than if would to try the case itself.” On March 12, 1917, plaintiff’s counsel replied to the judge’s letter of January 21st, stating that the matter had been taken up with opposing counsel and the condition of business was such in the Wayne circuit court that they could not get the case on for trial as had been suggested, concluding:

“Therefore we trust you will set a date for trial of this matter as early as you can conveniently do so and have your clerk inform us as to the time you set. We do not believe the case will take over two days to try, and will do our utmost to suit your convenience.”

No reply to this letter was received and relying, as claimed, upon the known practice or custom of that court in making up weekly calls according to the condition of business, of which the clerk was directed to notify counsel, they did not press the matter further, awaiting the time when such case would be reached and notice given by the clerk. Not having- as yet received any notice when the then judge’s term of office expired, they wrote his successor in office calling attention to the case and expressing anxiety to have it disposed of as soon as convenient. In response they received notice from the clerk that the former judge had dismissed the case on September 13, 1917, pursuant to the provisions of the judicature act relative to cases in which no progress had been made for a period of one year, no progress having been made in their case since February 29, 1916.

Chapter 18 of the judicature act (3 Comp. Laws 1915, § 12573 et seq.) introduced a somewhat radical change from the former method of bringing cases pending in the circuit courts to trial or final disposition, and conferred not previously existing initiatory power on the courts in that particular. Formerly the courts were powerless to accelerate the. progress of live cases or dispose of the accumulation of dead or dormant ones, except as counsel on one side or the other saw fit to initiate action by serving upon the opposite party notice of trial or hearing, or by some motion or other application to the court in relation to a pending case or proceeding. Under the sub-title “term calendar” of said chapter notices of trial and hearings are dispensed with and all pending causes which are at issue, or in default, or appealed eases returned 14 days before the first day of any term are required to be placed upon the term calendar for disposition when reached in their order, and so placed at each succeeding term until disposed of, without note of issue or other notice except that at least five days before the first day of each term a copy of the printed term calendar is required to be mailed or delivered by the clerk to each attorney, or firm of attorneys, representing any case placed upon said calendar. The order of dismissal complained of purports to be made under authority of section 2 of said chapter (section 12574, 3 Comp. Laws 1915) which is as follows:

“Sec. 2. All causes in which no action has been taken or progress made for more than one year unless by reason of the business of the court the same shall not have been reached, shall be placed upon said calendar separate and apart from all other causes, under the following heading: ‘Causes in which no progress has been made for more than one year;’ and on the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary.”

In harmony with these new provisions of the judicature act, Circuit Court Rule No. 40 (substituted for former Rule No. 18) provides:

“Previous to each term, the clerk shall prepare a calendar of causes for the term. The same shall be made up in the following order: 1. Criminal cases. 2. Jury civil cases. 3. Non-jury civil cases. 4. Chancery cases. 5. Causes in which no progress has been made for more than one year. The latter shall appear under no other heading.
“Criminal cases shall have precedence. Jury and non-jury and chancery cases shall have precedence in the order of the respective dates of joining issue, or in appeal causes, the respective dates of filing the appeal.”

Supplementary to requirements expressly provided by the statute and rules promulgated by this court under statutory authority, various customs or rules are adopted by the circuit courts for convenient and efficient conduct of their work and the orderly disposal of cases found upon the calendar of each term. They vary somewhat in different circuits, but are of like purpose and familiar to the profession, — such as a preliminary call of the calendar and its rearrangement — providing for a peremptory call with reference to cases soonest for trial in their order, or as agreed— providing a call board where, during the term, a certain number of such cases are posted from day to day for imperative disposition when reached; and often, as was the custom in the Oakland court, with directions to the clerk to advise counsel so far as possible that their cases are on peremptory call. To what extent counsel can as a matter of strict legal right claim protection under such customs might, perhaps, be questioned, but need not be determined here. Counsel are, however, by statute entitled to receive from the clerk a copy of the term calendar containing cases for which their names appear of record. In this case, upon the issue framed, it was returned as a finding that counsel for plaintiff were not furnished a calendar for the term at which the case was dismissed. The correctness of this finding is denied by defendant and debated in the briefs of counsel, as are various other points raised by the respective sides which need not be considered as we view the controlling issue.

Though disputed, it may be conceded that in a legal sense no progress was made in this case for over a year before it was put upon the September, 1917, calendar of the court under the “no progress” heading and dismissed; but the testimony is convincing that no progress was made during the preceding year by reason of the business of the court being such that the case was not reached in its order upon the calendar nor placed on call for hearing by the court. After the case was ripe for hearing it automatically went upon each succeeding term calendar until disposed of. .The next regular step in its progress was to try it when reached in its order. Counsel had no control over that feature of its progress. Neither had the court arbitrary power to otherwise deal with and dispose of it until it was reached. When so reached plaintiff’s counsel were entitled to have it tried as they had advised the court and clerk they were anxious to do. When reached and called for trial the court could, and usually would, hear the case, or dismiss it if no counsel responded to the call.

It was shown that the work of that court had recently much increased, that the then presiding judge was not in good health and the volume of business was such that outside judges were at times called in to assist, and many cases went over from term to term. The clerk testified they were never “able to clear up the docket” and that this case was never marked on his calendar or records as on call or reached for trial. Of his duties and the custom of the court in that particular, he said:

“Instead of having* the office make up the call he (the judge) made up his own call week by week and handed the list over to me with instructions to notify them (the attorneys) with regard to their cases.”

The case was prematurely placed upon the calendar under the “no progress” heading. After it was at issue ready for trial its place upon the term calendars was under its proper heading amongst chancery cases, “with precedence in the order of the respective dates of joining issue.” It was entitled to be so continued until reached in its order and duly called for hearing. Its transfer to the “no progress” list and dismissal were premature, and not within the discretion of the court.

The court having refused to retain jurisdiction, defendant’s contention against the remedy invoked is not well founded. Huddleston v. Amos & Co., 180 Mich. 253.

The writ will issue as prayed for.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    SWAN v. MITSHKUN.
    Covenants — Building Restrictions — Injunction.
    In proceedings to restrain the erection of a garage in a residential district in violation of restrictions contained in defendants’ deed, evidence held, to sustain the findings of the court below that the contemplated building was in violation of said restrictions, entitling plaintiffs to relief.
    The question as to whether garage or stable is within restrictive covenants in conveyance of real estate is discussed in a note in 34 L. R. A. (N. S.) 730.
    Appeal from Wayne; Tucker, J., presiding.
    Submitted June 11, 1919.
    (Docket No. 5.)
    Decided July 17, 1919.
    Bill by Edward P. Swan and others against Mark Mitshkun and another to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Charles Bowles, for plaintiffs.

      Berger & Milburn (P. J. M. Hally, of counsel), for defendants.
   Steere, J.

Plaintiffs’ bill of complaint was filed in this case to restrain defendants from building a garage for business purposes fronting on Hamilton boulevard upon lots 814, 815, and 816, located at the northeast comer of Puritan avenue and Hamilton boulevard in the Medbury Park subdivision of a part of fractional sections 13 and 14, town 1 south, of range 11 east, in the village of Highland Park, in violation of the following restrictions contained in their muniments of title to said property:

“And in further consideration, that there shall not be erected on the front of said premises^ above described any building other than that for residence purposes only, and any building so erected shall conform to the following restrictions, viz.:
“Single, private residence; to be set back at least thirty (30) feet from the front lines of the lot, at least four (4) feet west of the east lot line, and to cost not less than $3,000. Plans for said building must be submitted to the first party for inspection before construction is begun.”

The Medbury Park subdivision, which lies between Woodward avenue and Hamilton boulevard, was placed upon the market by the Hannan Real Estate Exchange and was platted and sold as a desirable, highly restricted residence subdivision, laid out to that end with the lots facing the east and west streets running through it, except the lots adjoining Woodward avenue which faced that thoroughfare on its west side with an alley at their rear and were not offered for residences, but designed for business property should business reach that section of the suburbs of Detroit. The subdivision, which is in the neighborhood of a half mile square, has 5 avenues running through it east and west extending from Woodward avenue to Hamilton boulevard. All lots in the subdivision were sold under building restrictions for residential purposes only, except the lots facing Woodward avenue. The restrictions differed somewhat on the various avenues in the different blocks, lots on Eason and Moss being restricted to bungalows. Those in the first block from Woodward were to cost no less than $3,500, in the second block $3,000 and in the third block $2,500. Puritan avenue lying to the south extends east and west about centrally through the subdivision from Woodward to Hamilton and has been built up as a high grade single residence street restricted to 2-story single residences to cost not less than $4,500 in the first block west of Woodward, $4,000 in the second and in the third $3,500. On Puritan avenue the size of building sites for a single residence was increased to a lot and a half and so sold with the restriction quoted.

At the time this litigation arose Eason and Moss avenues lying farthest to the north and away from the city of Detroit were about three-fourths built up and Puritan avenue over half. In the great majority of cases the buildings which had been erected upon this subdivision had cost from two to three times the minimum amount required by their building restrictions. It also appeared that at the time of the trial the greater part of the business property in the subdivision fronting on Woodward avenue was still unsold and unimproved, and there remained plenty of unrestricted vacant property on the west side of Hamilton boulevard in that locality.

When the subdivision was placed upon the market by the Hannan Real Estate Exchange these restrictions, were emphasized and extensively advertised, and were included in all contracts and deeds given on lots sold in the subdivision for residential purposes. The property in question passed through several owners with these restrictions until purchased by defendants on March 21, 1918. The restrictions were plainly set out in the deeds, or contracts, received by them and the testimony shows they were read and understood by the defendants.

Defendant Frisbie is shown to have been actively engaged in handling real estate in Highland Park, familiar with values, deals and developments in that section. In his real estate operations he had acquired four corners in the Medbury subdivision on Hamilton boulevard with the restrictions in his conveyances. He testified corners would be much more valuable for business than residence purposes; that he understood the restrictions “didn’t amount to anything” and he had no intention of building residences on them. Of the garage which they started to erect, he stated it was to be 40 feet front on Hamilton and 90 feet deep with a show window in front, and they figured on leasing it for a tire salesroom and repair business.

Plaintiffs are property owners in the subdivision with their homes on Moss and Puritan avenues. Upon defendants commencing- construction of the garage they filed this bill of complaint and obtained a temporary injunction restraining its erection.

Defendants made answer admitting that they were proceeding to construct a building as alleged, did not deny the restrictions contained in their conveyances, but claimed that owing to changed conditions and the development of business along Hamilton boulevard it had become a business street unsuitable for residence purposes, for which reason, in connection with alleged violations of the building restrictions in Medbury Park subdivision, they had become inoperative and it would be inequitable to enforce them against their property on Hamilton boulevard. The tenor of their answer is in many particulars similar to defendant’s claims in Moore v. Curry, 176 Mich. 464.

The testimony is conclusive that on Eason, Moss, and Puritan avenues the building restrictions have been well observed, that they are strictly residential streets built up with fine and attractive homes of a cost and quality far beyond the restrictive requirements imposed. The evidence fairly shows that not only would the attractive features of a strictly residential district and sentimental attributes of exclusive home environments be disturbed, but that the actual market value of the plaintiffs’ property on those streets would be much depreciated by the violation defendants are attempting, and especially residences in the immediate vicinity. Concrete proof to that effect was produced as to different properties. Plaintiff Moore, whose home, worth $8,000, is next to the corner and back of the proposed garage and repair shop testified that he bought the property, built a residence and established his home there because of the restrictions imposed in that locality and would not without them have bought or built there. Experienced real estate men and builders testified that the proposed garage would depreciate the value of the Moore property by one-half. Plaintiff Peck, who bought and built his home costing $12,000 on lot 822, about 150 feet east of Hamilton boulevard, testified that the proposed violation would deteriorate the value of his property at least $3,000. But aside from and beyond that issue, those owning property in a restricted residential district or neighborhood, and especially those who have their homes there, and been led to buy or build in such locality by reason of restrictive covenants running with the land imposed upon the street, block or subdivision in which they have purchased, are entitled to protection against prohibited invasion regardless of how close business may crowd around them on unrestricted property, provided the original plan for a residential district has not been departed from in the restricted district, street or block, and the restrictive requirements have been generally enforced, or accepted and complied with by purchasers.

Upon hearing in the Wayne county circuit court, in chancery, the relief asked for by plaintiffs was granted and the temporary injunction made permanent. An opinion with findings was filed by the trial court, the material parts of which are as follows:

“The proposed garage complained of, if erected, will be a plain violation of the restrictions contained in the deed to, and was at the time of the purchase of the lot upon which it is to be erected, well known and understood by the owners. The claim is made that there have been other violations of the building restrictions of the subdivision at various points in the subdivision and that the character of Hamilton boulevard has so changed since the platting of the subdivision that the lots along that street are needed by the public for business structures.
“Medbury subdivision consists, as I recall it, of some 15 blocks lying between Woodward avenue and Hamilton boulevard and facing Eason, Moss, Puritan and Pilgrim avenues, in Highland Park, and is one of the fine additions to the city. All of the streets are quite fully built up with bungalows and other styles of family residences costing from $2,500 to $10,000.
“I have viewed the premises more than once, on the ground. Practically all of the buildings erected in the subdivision comply with the building restrictions, the requirements being somewhat different in the different streets. I can see nothing to the claim that there have already been violations of the building restrictions in the subdivision and that, therefore, others should be permitted. _ There is an abundance of vacant property along Hamilton boulevard in the general vicinity of this property, and therefore there can be no public necessity or demand for the use of this property for business purposes.”

It would serve no beneficial purpose to further review at length the voluminous record of testimony introduced by the respective parties upon these issues. We think that the findings of the trial court are sustained by the evidence and the conclusions of law supported by authority. The case falls well within that class where it is the policy of thé courts of this State to protect property owners who have not themselves violated restrictions in the enjoyment of their homes and holdings, free from inroads by those who attempt to invade restricted residential districts and exploit them under some specious claim that others have violated the restrictions, or business necessities nullified them.

This case is controlled by the principles announced in Schadt v. Brill, 173 Mich. 647 (45 L. R. A. [N. S.] 726); Moore v. Curry, 176 Mich. 456; Misch v. Lehman, 178 Mich. 225; Stewart v. Stark, 181 Mich. 408; Casterton v. Plotkin, 188 Mich. 333; Sherrard v. Murphy, 193 Mich. 352; Davison v. Taylor, 196 Mich. 605; Andre v. Donovan, 198 Mich. 256; Rosenzweig v. Rose, 201 Mich. 681.

The case of Windemere-Grand Improvement & Protective Ass’n v. American State Bank, 205 Mich. 539, which defendants urge in defense of their position, does not relax the rule as declared in the above cases, nor is it analogous to the instant case in controlling facts. In that case the objection of the association was not to Woodward avenue lots in the subdivision being devoted to business purposes, which it favored, or to the erection of the proposed building on the lot in question. The building restrictions on that lot, which fronted Woodward avenue with Windemere as a side street, were not the same as those on Windemere. Plaintiff’s contention under the restriction relied on was narrowed to a question of defendant’s right to cut off 8 feet of the view along Windemere from Woodward by building that much nearer the street line. It was shown that the association had in certain instances sought to apportion the condition resting on that subdivision and assisted in lifting the restrictions from other lots on Woodward avenue in the subdivision so that they might be devoted to business and had assumed to decide when the restrictions, or some portion of them, should or should not be enforced. No such fast and loose manipulation of restrictions is imputable to these plaintiffs, and no question of waiver or estoppel by conduct militates against their appeal for equitable relief.

The decree is affirmed, with costs to plaintiffs.

Bird, C. J., and Ostrander, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.