author: Hooker, C. J. Carpenter, J.

text:
    SEMER v. AUDITOR GENERAL.
    1. Taxation — Deed to State — Homestead—Rights of Original Owner.
    The original owner of land deeded to the State under the home- , stead provisions of the tax law cannot attack the title of a homesteader on the ground that the land was not barren, swamp, worthless, or abandoned, as set forth in the certificate of the- examiner, which, prior to the amendment of 1899 (Act No. 107, § 127, Pub. Acts 1899), was a prerequisite to such conveyance.
    2. Same — Statute of Limitations.
    The provision of section 131, Act No. 107, Pub. Acts 1899, limiting the time within which suit might be brought to set aside the title of a homesteader under pre-existing provisions of the tax law to six months after said act became operative, was a valid enactment, and available, though the original sales to the State were iurisdictionally defective, and (Oarpenter, J., dissenting) though the homesteader had not obtained his deed, but had in fact abandoned the land.

    Appeal from Delta; Stone, J.
    Submitted November 21, 1902.
    (Docket No. 226.)
    Decided June 30, 1903.
    Bill by John Semer against Perry F. Powers, auditor general, Edwin A. Wildey, commissioner of the State land office, and Tekla Engstrom Sundelius, to set aside a deed to the State of certain tax lands, and a homestead entry thereunder. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed.

      J. F. Carey, for complainant.

      Horace M. Oren, Attorney General (Charles W. McGill, of counsel), for defendants.

       See Commissioner of State Land Office v. Auditor General, 131 Mich. 147.

   Hooker, C. J.

John Semer, the owner of the original title to certain lands in Delta county, filed a bill setting forth the following facts:

First. His ownership.
Second. That the lands are heavily timbered and valuable, and have never been occupied except by one Engstrom. z
Third. That the township board passed a resolution requesting the auditor general and commissioner of the State land office to cause examination to be made of all lands in the township which had been bid off to the State for more than three consecutive years for the purpose of homestead entry.
Fourth. That the auditor general pretends that such examination .was made, and that a certificate has been filed that the lands described are barren, swamp, or worthless, and have been abandoned by their owner, and bid in-by the State for more than three consecutive years.
Fifth. On March 31, 1897, the auditor general transferred the land to the State, professing to act in accordance with section 127 of Act No. 154, Pub. Acts 1895, and said deed has been recorded.
Sixth. The county treasurer has canceled all tax sales upon his records.
Seventh. The auditor general caused a copy of the deed to be filed with the commissioner of the State land office, who now claims to hold the land subject to entry as homestead lands under section 131 of Act No. 206, Pub. Acts 1893.
Eighth. On August 3, 1897, Martin Engstrom, of Gladstone, made application to the commissioner to enter the land as a homestead, and received a certificate, under which he entered, and cut and removed valuable timber, cleared some land, and raised some crops, and moved upon the land, where he resided at intervals until the spring of 1899, when he abandoned the land. He died in February, 1900, and his widow subsequently married one Sundelius, and she now claims to be entitled to the possession of the land by virtue of said certificate, and to perfect her former husband’s entry, and to receive a deed from the State on complying with the terms of the statute.
Ninth. That the proceedings are illegal and void because the examiner acted fraudulently, and reported this land as barren, swamp, or worthless, and abandoned by the owner, without an examination of the land; and that it is not barren, swamp, or worthless, but is valuable timber and agricultural land, and has never been abandoned.
Tenth. The bill sets up in detail the taxes charged against the land, constituting the alleged lien of the State.
Eleventh. It alleges that said taxes and the sales were illegal and void for various reasons stated.
■Twelfth. It tenders payment of all such taxes, charges, etc., which may be found a lien.
Thirteenth. It alleges the unconstitutionality of section 127 of Act No. 154, and sections 128 to 134, inclusive, of Act No. 206.
Fourteenth. It alleges that the proceedings are a cloud on complainant’s title.
Fifteenth. Prays taxes be set aside, deed declared void, homestead entry invalid, and statute unconstitutional.

The auditor general, commissioner of the State land office, and Mrs. Sundelius were made parties defendant, and all demurred. 'From an order overruling the demfirrer, an appeal has been taken.

The statute upon which the defendants rely to support their demurrer is section 131 of Act No. 107 of the Public Acts of 1899. It contains a clause limiting the time within which actions can be brought by one claiming the original or government title to recover the possession of the lands, or to set aside the title of “such homesteader.” This section is amendatory. The original section providing for such disposition of tax lands was passed in 1893. It was amended in 1895, 1897, and finally in 1899, when the limitation clause was first incorporated. It is contended that, under all of these acts prior to 1899, certain things were essential to the jurisdiction of the proper officer or officers, wanting which their acts were void, and their attempts to convey valid interests in the lands abortive. The deed to the State was made in March, 1897, and the homestead certificate was issued in August of the same year.

Counsel for complainant contends that the statute does not apply to the case, for three reasons:

1. The homesteader never acquired title.
• 2. He abandoned the homestead, and his family continued his abandonment after his death.
3. The lands were not taken in conformity to the law existing at the time, and the proceedings were void.

The conclusion reached by the learned circuit judge who heard the case was that the action of the auditor general could not have been had under the law of 1899 (because that law was not yet passed), and did not purport to be, and that the provisions of the prior law gave no power nor jurisdiction to take lands unless barren, swamp, or worthless, which the bill alleged this land not to be; and that, as the law of 1899 was the first to provide for joint action by the auditor general and commissioner of the State land office, and the bill was not filed to set aside any such joint action, the provision limiting the time to six months after the determination by such officers does not apply to this case, and that such provision should be applied only to transactions subsequent to its enactment.

The land in question was taken as a homestead under the law of 1.895, which provides:

“Sec. 127. Whenever it shall'hereafter appear that any lands delinquent for taxes have been bid off to the State for a consecutive period of more than three years, and that no application has been made to redeem or purchase the same, it shall be the duty of' the auditor general and the commissioner of the State land office, when requested so to do by the township board of the township wherein such delinquent lands are situated, to cause an examination of such lands to be made as soon as practicable, to ascertain their value and the cause of the nonpayment of taxes thereon, and, if it shall appear that said lands are barren, swamp, or worthless lands, and have been abandoned by the owner, upon a certificate being filed by the examiner to that effect, the auditor general is hereby authorized to make a transfer by deed of the same to the State, as to an individual, as provided in this act, which deed shall be recorded in the proper county, and a copy filed in the office of the commissioner of the State land office, and said commissioner shall thereafter hold said lands as State lands, subject to sale as hereinafter provided ; and failure to pay the taxes or to redeem or purchase any lands sold for taxes and bid to the State for more than three consecutive years, as aforesaid, shall be, in all cases where such lands are not actually occupied, priiha facie evidence that such lands are abandoned by the owner.”

The bill shows that the lands were delinquent, and had been bid off to the State for eight or ten consecutive years, and it does not state that an application to redeem or purchase them has been made, and we understand that no question is raised over the fact that they are subject to examination under this statute. The bill also alleges that the request of the township board, requisite to set the auditor general and land commissioner in motion, was duly made. It states — impliedly at least — that an examiner was appointed, who made and filed the statutory report, but that said report misrepresented the land, which is valuable, and was fraudulently made by said examiner, without examination of the land. Upon these allegations it is contended that the auditor general and land commissioner acquired no jurisdiction to act, and make the determination which is a prerequisite to the transfer to the commissioner.

We are of the opinion that this question is not open to this complainant. This land was prima facie the property of the State; and while, if its title was invalid, the true owner might controvert it, he was in no way concerned with what disposition the .State should make of the land, if it was valid especially, as it could transfer no better title than it had. When the land was brought within the jurisdiction of these officers, and they acted, such action could not be overturned by a parol showing that it was not barren, swamp, worthless, or abandoned. There is a close analogy between this case and those which arose under the State swamp-land grants, where it was confided to the commissioner of the federal land office to designate the lands covered by the act. In those cases it was held that third persons could not question this selection, as was foreshadowed by the dissenting opinion of Mr. Justice Clifford in the case of Railroad Co. v. Smith, 9 Wall. 101, when he said:

“Special power is conferred upon the secretary of the interior to make out an accurate list and plats of the lands, and it is quite clear; that a j ury is no more competent to ascertain and determine whether a particular subdivision should be included or excluded from the list and plats required to be made under that section than they would be to make the list and plats during the trial of a case involving the question of title. Courts and juries are not empowered to make the required list and plats, nor can they determine what particular lands shall be included in the list and plats before they are prepared by the officer designated by law to perform that duty.”

Johnson v. Towsley, 13 Wall. 72; French v. Fyan, 93 U. S. 172; Ehrhardt v. Hogaboom, 115 U. S. 67 (5 Sup. Ct. 1157).

The defendants claim a title under a certificate from the State, and are in a position toward the State and the complainant analogous to that of the patentees from the government in the cases cited. While this question is not open to the complainant, its determination has no bearing upon the right of the complainant to attack the title conveyed by the State by its certificate or deed, his right to attack which in the hands of the holder is the same as though it were still in the State, except as such right is affected by the statute of limitations.

The act of 1899 was the first of the series of laws passed upon this subject to impose a limitation upon actions to recover such lands, other than those prescribed by the ¡general statute of limitations. It provides two. Section 127 provides:

“No suit shall be instituted to vacate, set aside, or annul the said "determination of the said auditor general and the commissioner of the State land office, made as aforesaid, unless instituted within six months after the determination aforesaid. Any person desiring to file a bill or institute a suit to vacate the findings of the auditor general and commissioner of the State land office, as provided in this section, shall first pay to the auditor general all delinquent taxes,” etc.

It is not improbable that this provision was designed to be prospective merely.

Section 131 contained another provision, reading as follows :

‘ ‘ And provided further, that any person who has purchased and entered into possession of any lands as a homestead under and by virtue of the provisions of this section as originally passed or as amended, when said lands had been bid off to the State and were held by the State for the taxes of one or more years, and said lands were delinquent for taxes for three or more years, shall, on performing the other conditions of said section as amended, receive a deed therefor as herein provided, and shall be deemed to have a good, sufficient, fee-simple title to said premises, to all intents and purposes, the same as though said lands had been bid off to the State for a consecutive period of more than three years, as originally provided in section 127 of said act. And in all cases where the lands have been taken as a homestead as set forth in last foregoing proviso, all actions of ejectment, or to recover possession of said lands, or to set aside the title of such homesteader, by any person, firm, or corporation claiming the original or government title, shall be commenced within six months after this act shall take effect, and not afterwards.”

Before the demuri’er can be sustained, we must find that the statute was retroactive. There is no trouble in this. It is expressly made so by its terms', and the legislature has authority to shorten the period within which an existing cause of action may be prosecuted, provided it give a reasonable opportunity. The following cases cited by counsel show this: People v. Turner, 117 N. Y. 227 (22 N. E. 1022, 15 Am. St. Rep. 498); People v. Turner, 145 N. Y. 451 (40 N. E. 400); Turner v. New York, 168 U. S. 90 (18 Sup. Ct. 38); Saranac Land & Timber Co. v. Comptroller of New York, 177 U. S. 318 (20 Sup. Ct. 642); Terry v. Anderson, 95 U. S. 628; In re Brown, 135 U. S. 701 (10 Sup. Ct. 972). Some of these cases have an application to complainant’s third point, holding that a statute of limitation may be a valid defense against a title based upon proceedings void upon their face. See, also, Cooley, Const. Lim. (6th Ed.) 454; Forster v. Forster, 129 Mass. 559; Cromwell v. MacLean, 123 N. Y. 474 (25 N. E. 932); Meigs v. Roberts, 162 N. Y. 371 (56 N. E. 838, 76 Am. St. Rep. 322). The last case distinguishes the case of Joslyn v. Rockwell, 128 N. Y. 334 (28 N. E. 604).

This question is made plain by our own case of Toll v. Wright, 37 Mich. 93, where two statutes of limitation are discussed. One of these, enacted in 1863 (3 Comp. Laws, § 9714), was held not to bar an action where the adverse title was based on a sale (specified in the statute) if void upon its face. The other (being 2 How. Stat. §§ 6074, 6075; 3 Comp. Laws, §§ 9127, 9128) was a broader act, making no allusion to the action of a court, and it was held that the statute might be relied upon by one who held under any sale covered by the chapter mentioned. It was said that the construction contended for (which is the same relied on here) would defeat the statute entirely. The opinion continues:

“What, then, is the meaning of the statute when it speaks of sales ‘ by an executor or administrator under the provisions of this chapter ? ’ It certainly does not mean valid sales, for those need no protection. Neither can it mean sales lawfully ordered, for it makes no mention of any order, and speaks of sales only. Neither can it mean sales in which the statute has in .all important particulars been followed, for the manifest purpose is to make an undisputed possession cure defects in the proceedings. Indeed, it cannot possibly, as we conceive, mean more than this: A sale purporting to be made under the provisions of the chapter, and in pursuance of an order professedly based upon them. If the administrator, with such an order, has made sale under the provisions of this chapter, and given a deed under which the necessary possession has been had, we think the case is fairly within the intent of the statute.”

The statute before us is analogous to section 9127.

We cannot accede to the claim that the six-months limitation is confined to cases where the homesteader has obtained his deed, but think it covers any case where one claims under a valid homestead certificate. Nor do we think that the case is affected by the alleged abandonment of the homestead. It is for the State to enforce or waive the forfeiture, as it may see fit. Larison v. Wilbur, 1 N. Dak. 284 (47 N. W. 381); Snow v. Flannery, 10 Iowa, 318 (77 Am. Dec. 120); Richards v. Snyder, 11 Or. 501 (6 Pac. 186).

A decree will be entered sustaining the demurrer, with costs, and remanding the cause for further proceedings, the bill to be dismissed, with costs, upon application made after a failure to amend the bill within 20 days after the decree is entered in this court.

Moore, Grant, and Montgomery, JJ., concurred with Hooker, O. J.

Carpenter, J.

(dissenting). I do not think the limitation of six months prescribed by section 131, Act No. 107, Pub. Acts 1899, applies in a case — like that before us —where the homesteader has no deed from the State, and is not entitled to such a deed. Against the views urged in this opinion it is contended that this construction of the section makes the limitation clause entirely inoperative, as, at the time the law took effect, no homesteader was entitled to a deed. There is force in this argument, but not sufficient force to authorize us to give a construction to the law which, in my judgment, its language clearly forbids. I think it clear from its language that the legislature, believing there were cases “where the land had been taken as a homestead as set forth in the last foregoing proviso” (viz., cases in which homesteaders had obtained or were entitled to have their deeds), enacted the legislation in question, giving to such homesteaders, and to them only, the benefit of this extraordinarily short statute of limitations. If I am right in these views, and if there was no such case as supposed by the legislature, it is clear that its misapprehension does not give the court authority to apply the law to some other case. See Woodward v. Watts, 2 El. & Black. 452; Reed's Appeal, 114 Pa. St. 452 (6 Atl. 910).

I think the lower court was right in overruling the demurrer.


source: Caselaw Access Project

author: Montgomery, J. Hooker, C. J. Grant, J.

license: Public Domain

text:
    DE CAIR v. MANISTEE & GRAND RAPIDS RAILROAD CO.
    1. Railroads — Injury to Brakeman — Coupling Moving Cars— Evidence — Custom. ¡
    In an action by a railroad brakeman for injuries sustained by being run over by a car while lie was walking in front of the same in an endeavor to adjust a coupling, evidence that it was the custom of employés of defendant to go in front of moving cars, in coupling them, was admissible, though no rule on the subject had been promulgated, and there was therefore no occasion to prove a waiver. Hooker, C. J., and Grant, J., dissenting.

      2. Same.
    Where a brakeman, who was injured while passing in front of a moving oar, alleged that he was in the performance of his duty as a brakeman, and was using due care, at the time, it was competent for him to testify as to his purpose in going in front of the car.
    •3. Same — Defective Track — Negligence.
    Evidence that a railroad company, after a washout in its yard, constructed a ditch across the main track, 18 inches wide and 12 inches deep, and allowed the same to remain for some time, filled with snow even with the ties, in consequence of which a brakeman was injured while making a coupling, is sufficient to justify a finding of negligence on the part of the company.
    4. Same — Contributory Negligence — Question for Jury.
    Where a railroad brakeman, in accordance with a custom of employés of the company, went in front of a car moving at from 4 to 5 miles an hour, on the main track, for the purpose of adjusting a coupling, and was run over and injured in consequence of stepping in a ditch constructed across the track, which was filled with snow, and of the existence of which he had no knowledge, the question of his contributory negligence was for the jury. Grant, J., dissenting.
    Error to Manistee; McAlvay, J.
    Submitted April 11, 1902.
    (Docket No. 95.)
    Reargued January 14, 1903.
    (Docket No. 37.)
    Decided June 30, 1903.
    Case by Frank De Cair against the Manistee & Grand Rapids Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Kellogg & Carbys (F. W. Houghton, of counsel), for appellant.

      T. J. Bamsdell and Charles A. Withey, for appellee.
   Montgomery, J.

The plaintiff was a brakeman on the defendant’s road on the 1st of February, 1900. He left the service of defendant temporarily, and was away until the 9th. He returned and resumed work on February 10th. In the meantime, and on February 7, 1900, there was a heavy rainfall, causing a washout in the yard of defendant company at Filer City. On the morning of February 8th, the superintendent of defendant company caused .a ditch to be constructed across its main track, from the west side to the east side, about 18 inches wide and 12 inches deep. Some four days later the ditch was filled with snow, up even with the ties.

On the morning of February 26th, the plaintiff left Filer City, with his train and crew, and returned between 3 and 4 in the afternoon. He was acting as rear brakeman. The train consisted of the engine, two box cars, and about thirty flat cars loaded with logs, and, beyond this, a merchandise car and a passenger coach. As the train neared the south switch at Filer City, plaintiff uncoupled the two-rear cars, and they were left about 150 feet south of the south switch. ■ The other cars were pulled ahead, and made a flyifig switch for the logs; and the engine, with two Manistee & Grand Rapids box cars, loaded with wood, backed up towards the dock switch, which is about 600 feet north of the south switch.

After the plaintiff had uncoupled the two rear cars, he stepped off the merchandise car, and- walked down the east side of the track, close to the rail, towards the dock switch. The bed of the track was covered with snow. He paid no particular attention to the roadbed between the rails. He went north on the east side for a distance of about 200 feet beyond the south switch. He then stepped across to the west side, because the bank was narrower on the east side. In the meantime the logs had been switched onto the dock tracks, and the engine, with the two cars loaded with wood, had backed up near the dock switch. The engine then started to back the two cars loaded with wood past the south switch, in order to-couple onto the two cars left standing, and push them back south of the crossing, and clear the main track for Manistee. The plaintiff met the engine and the two box cars, backing slowly, a little south of the dock switch. He stepped on the ladder at the southwest corner of the ■car farther from the engine, and rode along upon the car. When the plaintiff met the cars, they were going at the rate of 6 or 8 miles an hour. When about 150 feet from “the south switch, plaintiff gave the fireman a signal to ■back slowly, and, as they passed the south switch, the speed had been reduced so that they were then running about 4 or 5 miles an hour.

Just after they passed the south switch, plaintiff observed that the coupler on the car on which he was riding was closed, and needed adjustment. He had now passed onto the reverse curve, so that he could no longer see or signal the fireman. Plaintiff then stepped down from the ladder, and in front of the moving car, for the purpose of crossing over to the other side, where he could signal the engineer. The roadbed was free from obstruction, and apparently all right. In passing, he attempted to adjust the coupler, by opening it, so that it would couple onto the standing car left down by the crossing. He took hold of the coupling pin with his left hand, and the knuckle of the coupler with his right, and at the same time traveled towards the south, in front of the moving car; the track being apparently all right. He stepped into this ditch, fell down, and the car passed over and crushed his leg, just above the ankle. The circuit judge directed a verdict for the defendant, and the plaintiff brings error.

The plaintiff offered to show that it was the custom of employés of defendant company, in coupling cars, to go in front of moving cars. The court excluded this testimony. The testimony was admissible, under our former holdings. Hunn v. Railroad Co., 78 Mich. 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597 (60 N. W. 309); Fluhrer v. Railway Co., 121 Mich. 212 (80 N. W 23); Jones v. Railroad Co., 127 Mich. 198 (86 N. W. 838).

We think it was also competent for the plaintiff to testify for what purpose he got down and started to pass through in front of the moving car. The declaration averred that he was in the performance of his duty as a brakeman, and was using due care and prudence. If the purpose in which he was engaged was one necessarily connected with the performance of his duty as a brakeman,. it would tend to support this allegation.

That the testimony of the condition of this track was such as tended to show negligence on the part of the company is not open to doubt. Ragon v. Railway Co., 91 Mich. 379 (51 N. W. 1004); Palmer v. Railroad Co., 87 Mich. 281 (49 N. W. 613); Sweet v. Railroad Co., 87 Mich. 559 (49 N. W. 882); Anderson v. Railroad Co., 107 Mich. 591 (65 N. W. 585); Hollenbeck v. Railway Co., 141 Mo. 97 (34 S. W. 494); Chicago, etc., R. Co. v. Maroney, 170 Ill. 520 (48 N. E. 953, 62 Am. St. Rep. 396); Hannah v. Railroad Co., 154 Mass. 529 (28 N. E. 682).

The chief contention of defendant is that the plaintiff was guilty of contributory negligence, as matter of law, and the case of Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550), is cited to sustain this contention. That case was determined upon the doctrine of assumed risk. The injury to the plaintiff resulted from his hand being pinched in coupling two cars, it being claimed that the couplings were defective. But it was said that the condition was as apparent to the plaintiff as to the defendant, and that he must be held to have assumed the risk. It was added that the condition of the drawbar was discovered when three car lengths from the place of coupling, and that plaintiff “testified that he could have raised the drawbar without taking hold of the link, thus avoiding any danger of his hand being pinched, and that he would-not keep hold of the bar so long again in making such a coupling.” We think the case is not controlling of the present. In the present case the testimony tended to show that the plaintiff was following a custom in passing in front of moving cars in the performance of his duty. This is not, as matter of law, contributory negligence. See Ashman v. Railroad Co., 90 Mich. 576 (51 N. W. 645); Eastman v. Railway Co. and Jones v. Railroad Co., supra; and Jarvis v. Railroad Co., 128 Mich. 61 (87 N. W. 136). It does not appear that the injury resulted from conditions known to the plaintiff to exist. On the contrary, it is at least open to an inference, to be drawn by the jury, that plaintiff could have completed all he started out to do, without injury to himself,- but for the concealed defect in this track, not open to observation. We.are not prepared to hold, as matter of law, that it was his duty to anticipate such an excavation in the main track of the defendant railroad.

The judgment will be reversed, and a new trial ordered.

Moore and Carpenter, JJ., concurred with Montgomery, J.

Hooker, C. J.

I concur in the reversal of this case, upon the ground that plaintiff’s negligence was not conclusively proved. In the absence of a rule, or, if there be a rule prohibiting employés from entering between moving cars to couple them or adjust couplers, if there be evidence showing its waiver, it is doubtful if the fact of such entry can be said to be negligence per se, under the circumstances of this case, where, although the estimated speed of the train was 4 miles an hour, or more, the plaintiff was able, after his fall directly in front of the. car, to scramble upon his hands and feet, for a distance of 12 or 14 feet, and then get all of his person from the track but one foot. There is evidence indicating that it was good railroading to enter and adjust the coupler in the way attempted, and that it is necessary for both couplers to be open, when the cars are to be coupled on a sharp curve, and that opening them could not be done from the side of the car. While we know that there is always some risk in entering between moving cars, and can imagine cases where we will take judicial notice that it is so, we cannot make such a rule applicable to all cases of entering between moving cars to couple them or adjust couplers.

No rule forbidding the practice was proven in this case. Therefore proof of the custom upon this road was unnecessary to prove a waiver of a rule. It was competent to prove the general custom of well-conducted roads, to prove whether this act was negligent or not. But this does not warrant proof of the custom upon this or any other particular road, except as it may appear on cross-examination, and the court properly excluded such proof. The test is, What is the common or generally recognized method and practice ? That is no more to be proved by the practice upon defendant’s road than any other. To rest the case on the method followed by defendant’s employés would practically be to make it liable for accidents resulting from whatever practice its employés should follow, whether it could be shown to be good railroading or not. Our attention is called to no Michigan case where such a practice has been followed. All, where proof of custom of the defendant road has been held proper, were cases where it was claimed that a rule had been violated by the plaintiff, and a waiver or abrogation of the rule was sought to be shown by the practice of the defendant’s employés. That was true in the case of Ashman v. Railroad Co., 90 Mich. 576 (51 N. W. 645), which might, at first blush, seem to justify the claim that such testimony is admissible when a rule is not relied on, but there is no such adjudication in that case. Carrier v. Railway, 61 Kan. 447 (59 Pac. 1075). It maybe doubted if the rule as to waiver has not been carried beyond reasonable limits by some of the courts. See 3 Elliott, Railroads, § 1282; 19 Am. & Eng. Enc. Law, 822.

Grant, J.

(dissenting). I think the court properly directed a verdict for the defendant. • The act of walking or running in front of a railroad train for the purpose of arranging or making a coupling has always been regarded as exceedingly dangerous. It requires no argument to show that it is so. In doing it, the brakeman is required to walk sidewise, with his eyes fixed upon the coupling apparatus, and not upon the track where he is walking or running. Railroad companies for many years experimented in the attempt to devise a coupling apparatus which would relieve brakemen from this dangerous work. It was at last accomplished by the device known as the “Automatic Coupler,” wherein the coupling could be made by the brakeman outside the track. This device commended itself not only to railroad men, but to the people, through their legislatures. We find, therefore, that the Congress of the United States, in 1893, enacted that “on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” Act March 2, 1893, chap. 196, 27 Stat. 531. The legislature of this State, as early as 1885, enacted a similar provision. 2 Comp. Laws, § 5511. This defendant company had complied with these provisions of the law, and had in use upon this train these devices, which obviated any necessity of going in front of the car to effect a coupling. The plaintiff himself testified: ‘ ‘ The couplers were both in good condition, and in good working order.” They were supplied with levers for raising the pins from the outside of the track.

The train was under the exclusive control of the plaintiff. If necessary to go in front of the car to arrange the coupling pin, he could have done it before he started the train. He could have stopped it, if necessary to do it. Instead of arranging the coupling pin in ways which were open to him and perfectly safe, he deliberately chose one full of danger. He entered upon the track at a place where neither the engineer nor the fireman could see him, without any notification to them of his intended conduct, upon a track covered with snow, when he was 164 feet from the car to which he was to make the coupling, and the train running, as he testified, at from 4 to 5 miles an hour. He describes his action as follows:

“ I placed my left hand on the pin, and my right hand on the knuckle, in the act of opening it. I immediately started then to open the knuckle on this moving car. I did not attempt to get over on the other side of the track first, and give a signal to slacken up, but immediately started to open the coupler on this moving car.”

If this is acting with due care and with proper regard not only for one’s own safety, but for the benefit of his employer, I can hardly comprehend what negligence would be. There was no rule of the company requiring such risks on the part of its brakemen, and, if there had been, as we said in Loranger v. Railway Co., 104 Mich. 80, 86 (62 N. W. 137), “such a requirement would be at once condemned as cruel and inhuman.” No one is justified in taking such risks, unless absolute necessity demands it.

I think the court correctly excluded all evidence of custom on the part of the brakemen to go in front of moving trains to make couplings, on the ground that this was not a case for the application of the rule in regard to custom. Employés cannot create a custom, however universal, against their employer, by continually doing things in a reckless and negligent manner, when the employer has provided every means possible to do them with safety. I do not think such a doctrine finds approval in the decisions. There are cases holding that it is not negligence per se to go in front of a moving train to effect a coupling. • But these are cases where there is also evidence tending to show that the work on the railroad could not be satisfactorily done otherwise. They do not apply to cases like the present one, where no possible excuse exists for doing the work in the manner this was done. We said in Loranger v. Railway Co., supra:

“It is abhorrent to reason and common sense to say that it is good and safe railroading and careful conduct for a brakeman to step in front of a train moving as fast as a fast walk, and perform a service which requires him to step sideways to keep out of the way, knowing that death is almost sure to follow, should he miss his footing. ”

I think the judgment should be affirmed.


author: Moore, J.

text:
    BISARD v. SPARKS.
    Deeds — Delivery—Retention by Grantor.
    Where a deed executed to an infant was retained by the grantor in his own possession and control until his death, with the exception of a brief interval, when it was handed to the father of the infant to be read, he being instructed at the time to have it recorded if anything should happen to the grantor, there was no delivery, and the deed was inoperative.
    Appeal from Newaygo; Palmer, J.
    Submitted April 9, 1903.
    (Docket No. 24.)
    Decided June 30, 1903.
    Bill by Alice Bisard and others against George Sparks, Emma L. Sparks, Edith Sparks, and Lewis J. Crawford, guardian of Edith Sparks, an infant, to set aside a deed. Erom a decree for complainants, defendant Edith Sparks appeals.
    Affirmed.
    ■ George Luton and 8. D. Clay (Grove & McDonald, of counsel), for complainants.

      W. D. Fuller, for appellant.
   Moore, J.

Complainants filed a bill to have a deed executed by their father, Barnid Clark, to the defendant Edith Sparks, declared void and canceled, as also a lease executed by the defendant Crawford, as general guardian of Edith Sparks, a .minor, to her codefendants, George Sparks and Emma L. Sparks. From a decree finding that there was no consideration for said deed, and that it was never delivered to said Edith Sparks nor to any one in trust for her, and granting the relief prayed, the defendant Edith Sparks appealed.

The record discloses that George Sparks first became acquainted with Barnid Clark, August 15, 1900. Mr. Clark at that .time was 74 years old. Six days later the following paper was drawn:

“August 21st, 1900.
“I do hereby agree to let my farm to you on condition that you board me, do my washing and mending, and keep my horse, pay my taxes, keep the tools and fences in good repair. On these conditions you are to have all you raise and make therefrom as long as we do agree, or until I want to sell it, or when you go to leave the farm in the same condition as when you came, and the same amount of crops.
“Barnid Clark.
“George Sparks.”

Under the above agreement George Sparks and Emma L. Sparks, his wife, taking with them their infant daughter, Edith, who was born June 6, 1900, immediately entered into possession of the farm, and Barnid Clark lived with them until the time of his death, which occurred August 21, 1901. June 26, 1901,.Mr. Clark went before Mr. Brace, a conveyancer, and signed and acknowledged an instrument which had been prepared by Mr. Brace at the request of Mr. Clark, the material parts of which read as follows:

“ This indentui’e, made this twenty-sixth day of June, in the year of our Lord one thousand nine hundred and one (1901), between Barnid Clark, of the township of Ashland, county of Newaygo, and State of Michigan, of the first part, and George Sparks and Emma Sparks (his wife), of the same place, of the second part: Witnesseth, that the said party of the first part, for and in consideration of certain services hereinafter mentioned to be performed by them to in hand, does by these presents grant, bargain, sell, remise, release, alien, and confirm unto Edith Sparks, daughter of the aforesaid George Sparks, her heirs and assigns, forever, all that certain piece of parcel of land. * * * The conditions of this deed referred to above are as follows: The aforesaid George Sparks and Emma Sparks (his wife) agree to support and properly care for the said Barnid Clark during his life, and to care for him and to defray the expenses of his last sickness, and after his death to defray all the expenses of his burial. And in consideration of the faithful performance of these conditions, he, the said Barnid Clark, agrees to deed as herein specified the above described premises to Edith Sparks, daughter of said George Sparks. Together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the said premises, as herein described, with the appurtenances, unto the said Edith Sparks, and to her heirs and assigns, forever. And the said Barnid Clark, party of the first part, his heirs, executors, and his administrators, does covenant, grant, bargain, and agree to and with the said party of the second part, her heirs and assigns, that at the time of the ensealing and delivery of these presents he is well seised of the above granted premises in fee simple.” '

After Mr. Clark’s death, this paper was taken' by Mr. Sparks to a lawyer. Some doubt was entertained as to its effect, and an arrangement was made between the complainants, Mr. Sparks, and his wife by which the latter were to retain the crops and certain stock and the possession of the farm until November 25, 1901, and they in turn surrendered the paper before referred to. Later it was concluded that the rights of Edith Sparks under the paper could not be surrendered by her parents, and that the paper was a valid deed. A guardian was appointed for Edith, and the guardian executed upon her behalf a lease of the premises to her father, George Sparks. Soon thereafter this bill was filed. The case was heard in open court.

It is claimed by complainants that the instrument is not a deed, but an agreement to make a deed in the event that certain things were done, which never were done. It is also claimed that Mr. Clark was not competent to make the paper when it was made; that it was made without consideration, and that it was not delivered.

In our view of the record, the last-named question is the only one we need consider. In Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291), the court said:

“ The authorities are all agreed that no deed can be valid without delivery by the grantor. It must be made operative by his act while he is able to act. There are cases where deeds and mortgages found to have been in custody of the grantor at his death have been held valid, but this has been done on proof, or facts amounting to proof, that he has made an effectual delivery, and become a mere custodian of the deed thereafter. In every case that we have discovered the question has been whether the deed had been delivered. No doubt, in some cases presumptions may have been stronger than in others, but the fact has been considered as absolutely essential, and, where the grantor has retained control of the title, it has been regarded as conclusive. One reason for this is found in the doctrine which, both under the statute of frauds and independent of it, is equally clear, that the purport of a deed cannot be changed by parol, and that no condition or reservation contrary to its terms is valid. A deed of conveyance in present terms is inconsistent with the retention of a life estate, and from the time when the deed is delivered as a conveyance the whole title goes with it, and it becomes irrevocable.
“ Some difficulty was apparently raised about delivery where the grantee was ignorant of the transfer; but it has long been settled that a delivery to any third person, intended to make the conveyance operative, is a legal delivery. Doe v. Knight, 5 Barn. & C. 671; Hosley v. Holmes, 27 Mich. 416, and notes; Souverbye v. Arden, 1 Johns. Ch. 240. But a delivery to a third person, or even to the grantee, may be made for other purposes than to give the deed effect (Johnson v. Baker, 4 Barn. & Ald. 440); and the mere fact that it is put into their hands, if not as a completed transfer, will not bind the grantor. Thus, in Jackson v. Phipps, 12 Johns. 418, and in Austin v. Register of Deeds, 41 Mich. 723 (49 N. W. 923), the deposit of a deed with a public officer, but not for record, and with no purpose of giving the deed effect, was held no such delivery. In Prutsman v. Baker, 30 Wis. 644 (11 Am. Rep. 592), a deed in a third person’s hands, subject to the grantor’s orders, was held not delivered. And cases not unfrequently arise where a deed is handed to a grantee for inspection by himself or his counsel, or for some temporary purpose, where there is no completion of the transfer. Johnson v. Baker, supra; Gilbert v. Insurance Co., 23 Wend. 43 (35 Am. Dec. 543).
“ In Jackson v. Dunlap, 1 Johns. Cas. 114 (1 Am. Dec. 100), a deed duly executed, but retained by the grantor until the land should be paid for, and he dying before payment, was held inoperative. In Stilwell v. Hubbard, 20 Wend. 44, a deed made by the grantor, and retained by him with the distinct understanding that it would become operative at his death, and found among his papers with a will which it was designed to alter, was held void for want of delivery during life. In Fisher v. Hall, 41 N. Y. 416, it was held, after a careful discussion, that, where a deed was retained in the grantor’s custody, there must be unequivocal proof of a legal delivery, intended to be operative. In Wellborn v. Weaver, 17 Ga. 267 (63 Am. Dec. 235), where a deed was intrusted to grantor’s agent, to be delivered after death, it was also held that there could be no continuance of agency after death, and that there was no valid delivery.”

See, also, Thatcher v. St. Andrew’s Church, 37 Mich. 264; Schuffert v. Grote, 88 Mich. 650 (50 N. W. 657, 26 Am. St. Rep. 316); Chick v. Sisson, 95 Mich. 412 (54 N. W. 895); Burk v. Sproat, 96 Mich. 404 (55 N. W. 985).

The necessity of delivery to give effect to a deed is not in doubt, and it becomes necessary to consider the testimony hearing upon that question. Mr. Brace testified, upon direct examination, that:

‘ ‘ I suggested to him that he leave it with the judge of probate, or some person, any one whom he thought best, to be given to Mr. Sparks after he was dead. He says, * No, I am going to keep this deed myself until just before I die, and then I am going to give it to George Sparks myself.’ I says, ‘ That is all right, but I would just make that as a suggestion.’ ‘Well,’ he says, ‘I am going to do it that way.’ There was nothing more said about the disposition of the deed, and shortly after that he went away.”

ITis cross-examination did not materially differ from this.

Mrs. Brace testified:

Q. Just give your, recollection of what he said.
“M. He says, ‘ Old Barnid knows what he is about, and he is going to keep the deed with him until just before he dies.5
Q. Then what?
“A. ‘Then I will give it to George Sparks.’”

Mr. George Sparks testified as follows :

“Clark had boarded with me up to the date of the deed. I had no knowledge of the making of the deed when it was made. * * * The house is a farm house, two stories high. In the lower part there is a kitchen, pantry, and bedroom off the kitchen, that Mr. Clark occupied. * * * I first learned of the deed August 13th. Until that time I never knew that he had made a deed. He never told me that he had done anything with his property; only I supposed he fixed his property, but he didn’t mention it. I supposed he had done so, because he said he wanted to go down to fix his property. * * *
Q. You may state how you came to learn about the deed.
“A. Well, I had been to work that day in my corn, and came up at night; got through hoeing and pulling weeds out of the corn. I came up, and I think I had been doing some chores, and I went in, and Mr. Clark sat in a rocking chair in the kitchen, and I says, ‘ Uncle Barney, I have my corn all cleaned out nice.’ He says, ‘ I am glad of that.’ ‘But,’ I says, ‘ I have a lame arm, the left arm.’ He says, ‘Go in my bedroom and put some liniment on.’ I says, ‘I guess I will;’ and I rolled up my shirt sleeves and went into the bedroom, and took the liniment and put it on my arm. Mr. Clark got up and followed me in there, and he opened a little drawer in his bureau, and there was a pasteboard box set in there.’ He moved that to one side, and he says, ‘ Do you see that, George?’ I says, ‘Yes, sir.’ He says, ‘If anything happens to me — ’ .
Q. (interrupting) What was that ?
“A. It was in an envelope; he didn’t tell me; he says, ‘If anything happens, you take care of that and get it recorded.’ I says, ‘What is it, Uncle Barney? Is it something for me ? ’ I don’t know whether he said ‘ No ’; he said something, but I don’t know what he said, but he said it was a warranty deed of this place to the baby. Then he says, ‘ Take it, and go and read it.’ I took the envelope and went out, and I and the woman read it, and we carried it back.
Q. Put it back in the envelope ?
“A. Yes, sir.
Q. When he made these statements he was in the bedroom?
“A. Yes, sir.
Q. Was he standing up ?
“A. Yes, sir.
Q. Did he lie down on the bed ?
“A. He laid down on the bed when I went out.
‘ ‘ Q. Where was he when you came back ?
“A. Laying on the bed.
Q. Did he tell you to put it back in the bureau ?
“A. No, sir; never told me any more than when I tookit.
Q. Where was the baby at that time?
“A. She was—
Q. (interrupting) She was somewhere around the house ?
“A. She was somewhere around the house; I don’t know where.
Q. Your wife was not in the bedroom when he made these statements ?
“A. No, sir.
Q. You read it with her ?
“A. Yes, sir.
Q. That would be eight days before he died. Did he grow worse after that ?
“A. Yes, sir. * * *”

On the cross-examination he testified:

“Q. And the first you knew be had made any disposition or attempted disposition of his property was on the 13th day of August ?
“A. Yes, sir; that is the first I knew.
“ Q. What time in the day was it ?
“A. It was between 4 and 6 o’clock, I should say.
“Q. The old gentleman was almost unable to talk then, wasn’t he?
“A. No, sir.
“Q. Talked well, did he?
“A. Yes, sir.
“Q. Hadn’t his daughters been there for several days before this?
“A. They had been there at times. He was so he was up and around.
“Q. You say he opened a drawer and you looked into it?
“A. He opened the drawer and moved this little box aside, and asked me if I saw that envelope.
Q. What kind of an envelope was it?
“A. A large envelope.
“ Q. Where is it now ?
“A. I couldn’t tell you.
“ Q. What did you do with it?
“A. I delivered it to Mr. Wallace.
Q. On that day didn’t you, that evening, put the envelope back in the drawer where you took it from ?
“A. Yes, sir, after we read it.
Q. How long did it take you to read it ?
“A. It didn’t take very long; I didn’t keep track of the time.
Q. His desire was that you and your wife should read it?
“A. Yes, sir.
Q. And then return it — which you did — into the same envelope ?
“ A. He didn’t say to return it; no, sir.
Q. You did return it?
‘ ‘A. I put it back.
Q. Asked you to read it and return it ?
“A. I put it back.
Q. When did you next see it ?
“A. I couldn’t remember the date.
Q. The day he died?
“A. No, I didn’t see it the day he died.
Q. The day after the funeral? You didn’t see it again until after his death ?
“A. I saw it the day after the funeral.
“ Q. You didn’t see it again until the day after his death ?
“A. I think not.
Q. Then did you go and take it out of the drawer unbeknown to any one excepting yourself and wife ?
“A. Yes, sir.
Q. What else did you take out of the drawer ?
“A. Nothing.
“Q. How?
“ A. Yes, I did.
Q. What else did you take, after the funeral, that afternoon ?
“A. After the funeral I had the money Mr. Clark turned over to me. * * *
Q. What did you take out afterwards ?
‘'A. Well, I took some money out the day he was buried, after we got back there. * * *
“ Q. What did you do with the $80 you took out of the drawer.
‘ ‘A. Turned it over to Mr. Clark’s children.
‘ ‘ Q. Whereabouts did it lay with reference to the deed?
“A. The money was in this little box I spoke of, and on Friday— I will explain it if you wish [and he did so in detail]. • Finally I says, ‘Do you want me to take care of this for you ? ’ and he says ‘ Yes.’, I put it in my pocket, and from that time he never mentioned money to me. He said there was $60. When we counted it there was $80.
‘ ‘ Q. Who was present this Friday before he died, when he gave you this money ?
“A. His son Morris was there, but I don’t remember whether he was there at this time or not. * * *
‘ ‘ Q. Didn’t you find some silver ?
“A. Yes, sir.
Q. Before he died ?
“M. No, sir.
Q. How much did you find ?
“A. $4.75.
“ Q. What did you do with that ?
“A. Turned it over to Mrs. Bettis.
Q. Together with the $80 ?
“ A. Yes, sir; $84.75, I think. I have a receipt.
Q. Did it lay loose ?
A. It was in his pocketbook.
Q. That was how long before he died ?
“A. It was after he was buried. * * *
Q. You said something, in the last conversation you had with him— He couldn’t talk very plain, I suppose, could he ?
“A. Not at the time he gave me the money.
Q. He said something to you, as I understand you, if anything happened to him he wanted that paper recorded ?
“ A. He told me if anything happened to him to take that, and take care of it, and have it recorded.
Q. How long was that after you put it back there ?
“A. It was before— I didn’t understand the question..
Q. How long after you and your wife read this instrument, and you put it back in the drawer, before he told you if anything happened to him that he told you you might have it recorded ?
“A He told me before.
Q. When you took it out to read ?
“A. When I took it out to read he told me then to take •care of it.
‘ ‘ Q. Then he told you if anything happened to him; he .meant when he died ?
“A. Yes, that is what I understood.”

That is all the testimony tending to show a delivery. It will be remembered Mr. Clark was living in his own house, in which he had a bedroom occupied by himself. He declined to act upon the suggestion of the conveyancer to put the deed in the hands of a third person, but kept it in the drawer of his own bureau, in his own room. With the exception of the brief interval of time when it was in the possession of Mr. Sparks, to be read by himself and wife, it was in the possession and control of Mr. Clark from the time he signed it until after his death. He kept it where he kept a considerable portion of his money. Giving the testimony the most favorable construction possible for the defendant, we think it fails to show a delivery of the deed.

The decree is affirmed.

The other Justices concurred.


author: Hooker, C. J.

text:
    JOHNSON v. TOLEDO, SAGINAW & MUSKEGON RAILWAY CO.
    1. Carriers — Perishable Shipments — Bill of Lading — Through Contract — Iced Cars — Negligence.
    Where a carrier gave a bill of lading for a car of perishable fruit consigned to a point in another State beyond its own line, specifying the route to destination, and reciting that the property was received subject to the carrier’s liability under the common law and statutes in force in the various States - through which the goods might pass, and that the car was to-be iced at G., and re-iced as often as necessary, the carrier issuing such bill was liable for damage to the fruit caused by a failure to keep the car properly iced, whether the default, was its own or that of a connecting carrier.
    2. Same — Evidence—Question for Jury.
    Whei’e, in an action against a carrier for injuries to fruit' shipped under a contract requiring that the cars should be properly iced when delivered, there was some evidence that the cars furnished were inadequately iced, and that they were delayed in transit before delivery to a connecting carriel’, whether the injury occurred while the cars were on defendant’s line was a questioh for the jury.
    ■3. Same — Shipper’s Knowledge of Default. '
    Where a bill of lading for the shipment of fruit provided that the cars should be iced at G., and re-iced as often as necessary thereafter, the fact that the shipper discovered that the cars were insufficiently iced before their departure did not impose a responsibility upon him or relieve the carrier, if the shipper ■ had no opportunity to remedy the situation, and believed
    that the fruit would reach G. without injury.
    Error to Kent; Perkins, J.
    Submitted February 4, 1903.
    (Docket No. 67.)
    Decided June 30, 1903.

      Assumpsit by Charles A. Johnson and August A. Johnson, copartners as C. A. Johnson & Company, against the Toledo, Saginaw & Muskegon Railway Company, for the breach of a contract of carriage. From a judgment for ■defendant on verdict directed by the court, plaintiffs bring ■error.
    Reversed.

      Burlingame, Belden & Orton, for appellants.

      E. W. Meddaugh (Geer & Williams, of counsel), for appellee.
   Hooker, C. J.

The plaintiffs have appealed from a verdict directed in favor of the defendant. They were co-partners engaged in the business of buying and' shipping fruit at Sparta. On September 25th the defendant sent to Sparta two refrigerator cars for their use, each car being furnished with 2,000 pounds of ice at Greenville, 26 miles distant. Plaintiffs began loading these cars the same .afternoon, and finished the next morning by 9 o’clock. After the loading, and before the cars left Sparta, they •accepted from the defendant’s agent at Sparta the bills of lading which are claimed to constitute the contract between the parties.. One of these cars was billed to Columbus, Ohio, the pther to Indianapolis, Ind. When the cars reached their respective destinations, it was found that the fruit had become heated and injured, and this action was brought to recover damages resulting therefrom. The following is a copy of the bill of lading for one of the cars, and the other is similar, except as to destination:

“Grand Trunk Railway System.
“ Bill of Lading.
“ Chas. M. Hays, General Manager.
“Sparta, Mich., Station, Sept. 26, 1900."
“Received from C. A. Johnson & Co., by the T., S. & M. Ry., in apparent good order (or as noted), the property described below (contents and value of package unknown), marked and consigned as per margin, and subject to carriers’ liability under the common law and statutes in force in the various States, Territories, provinces, or foreign countries through which the goods may pass.
“This bill of lading to be presented by consignee without alteration or erasure. If the property is not removed by the consignee within twenty-four (24) hours after reaching destination, it will be retained in car or otherwise stored at owner’s risk, subject to charge for use of said car or other storage; same, together with transportation charges, shall be a lien on the property.
“Any overcharge occurring on this bill of lading will be promptly adjusted.
“This bill of lading contracts rates from Sparta to Columbus, Ohio, via-, at- per-, and charges advanced at $-.
“Ice at Greenville, and re-ice as often as necessary to keep car thoroughly iced.
“R. D. Bancroft, Agent.”

The evidence shows that the cars left Sparta the day that the loading was finished, and within an hour thereafter, and at that time the plaintiffs claim to have been. dissatisfied with the condition óf the cars, and thought that the initial icing at Greenville had not been properly done. The cars arrived at ■ Greenville somewhat late, owing to delays, and at half past 1 p. m. the defendant’s employés commenced putting ice in them, and finished at 3:45 p. m. They put three tons of ice in each car. The cars arrived at Durand at 11:30 p. m., 72 miles from Greenville. Here they were separated. One proceeded at once over the Detroit, Grand Haven & Milwaukee division of the Grand Trunk Railway to Detroit, arriving there at 10 minutes past 7 q. m., and was delivered to the Lake Shore Company at 10 minutes past 10 a. m., of the 27th. Defendant’s witnesses claim that the car was then found provided with sufficient ice. The car reached the Lake Shore icing station at Toledo at 2 a. m., September 28th, when 4,000 pounds of ice was supplied, and at 2:40 a. m. it left for Columbus, Ohio, over the Hocking Yalley Road. The evidence indicated that there were two tons of ice in the car when it reached Toledo, according to plaintiffs’ interpretation of it. The car reached Columbus before 3 a. m.-, September 29th. The ice boxes were then full of ice, but the temperature of the car is said to have been found high, and the peaches injured by overheating. The peaches were sold for $122.65 gross.' They cost $295.

The other car left Durand on September 27th over the Grand Trunk Road, and reached Nichols, near Battle Creek, at 1:20 p. m. Plaintiffs say that defendant claims, but did not prove by competent testimony, that it was re-iced there. It left at 8:40 p. m., September 27th, and arrived at Grangers, Ind., about 1 o’clock a. m., September 28th. It was-then transferred to the Big Four Road at a quarter of 7 a. m. of the 28th, the ice tanks being half full of ice. It left for Indianapolis, where it arrived early on September 29th. At 7 a. m. it was found to contain about 600-pounds of ice. The peaches were badly decayed, and the car was re-iced at once. The fruit was sold, and brought $94.70 gross, and the cost was $170.

It was admitted by defendant that the contract bound it to take these cars to Detroit and Grangers respectively. The plaintiffs claimed that defendant was liable for the loss, because (1) it was due to its negligence, the cars not being properly iced at Greenville before being sent to Sparta, and a delay occurring between Greenville and Grangers. (2) ‘ ‘ If any part' of the loss was due to the negligence of connecting roads, the defendant is liable therefor under the terms of the contract made, i. e., the bills of lading used, and the attending circumstances.”

We are of the opinion that the learned circuit judge was incorrect in saying that a through contract to transport to Columbus was not made by the defendant. If the provisions of the bill of lading ought not to be construed as showing such an intention, in view of the statement that the property was received “subject to carriers’ liability under the common law and statutes,” etc., we should not overlook the fact that it contained some other provisions giving rights to and imposing obligations upon both parties. Among these there are some which should be given little weight as evidence showing a through contract, though all may be consistent with such a contract. The provision regarding re-icing, however, is a significant one. There is nothing in the bill of lading, or proof, to show authority on the part of the agent or defendant company to bind connecting lines to “re-ice the car as often as necessary to keep the car thoroughly iced,” yet it is evidently intended as a stipulation. It is contained in a receipt given to one shipping to a designated point by various lines stipulated. It is said that it only states a common-law liability of all roads. But does it not do more then state such a liability ? The common law undoubtedly requires care in transporting perishable goods, and, under modern methods, we have no doubt that it would be held to extend to proper refrigeration, according to established custom. Was not the shipper given to understand that his car would at all times be kept thoroughly iced, whether essential to the preservation of the fruit or not, thus providing additional assurance of safety ? If this was not the intention, the provision y as superfluous. To whom did the plaintiffs have ■ a right to look for the performance of this engagement? There is nothing on the face of the record to establish privity between plaintiffs and connecting lines as to this provision. There might be privity under another construction of this writing, but only to the extent of the ordinary obligations arising out •of the reception of the car as a common carrier. This defendant, if any one, made this promise, and against it, only, could it be enforced according to its terms.

Again, the court held that there was no question for the jury as to injury while the cars were upon defendant’s road. Some correspondence, to be found in the files, relating to a proposed amendment of the record, indicates a misunderstanding between court and counsel, which explains the action of the court in this regard." As finally settled, the record contains some evidence tending to show that the cars were inadequately iced when furnished, and that plaintiffs were not aware of the fact until they were loaded, and too late to remedy the difficulty. It also appeared that the cars were delayed from two to three hours on their trip to Greenville; also that there was a delay, at Nichols, of one of the cars.

' We do not overlook defendant’s contention that plaintiffs accepted the bill of lading and are precluded from questioning what occurred before, but we think that they were entitled to a properly iced car under that instrument. Moreover, we are of the opinion that the' alleged discovery that the cars were warm and insufficiently iced, before their departure,-did not impose upon plaintiffs the responsibility, and relieve defendant from its obligation, if they had no opportunity to relieve the situation, or honestly believed the fruit would reach Greenville without injury. These were all proper questions for the jury.

The judgment is reversed, and a new trial ordered.

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


text:
    KUEHNE v. UNION TRUST CO.
    Banks and Banking — Letters of Credit — Trust Fund — Insolvency — Preferences.
    Money paid to a bank for a letter of credit issued by it for and in the name of another bank under the former’s agreement of indemnity, the money being placed with the other funds of the bank, and, for convenience, entered on its books to the credit of the purchaser, but in subh way as to prevent its withdrawal otherwise than by draft against the letter, does not constitute a trust fund for the benefit of the bank liable on and honoring the drafts drawn against such letter, so as to entitle it to preference over the general creditors of the other bank on the latter’s insolvency.
    Appeal from Wayne; Donovan, J.
    Submitted February 20, 1903.
    (Docket No. 148.)
    Decided June 30, 1903.
    Petition by Percival Kuehne, Max Hessberg, Friederich Nachod, and Alphons Jacobson, copartners as Knauth, Nachod & Kuehne, against the Union Trust Company, receiver of the City Savings Bank of Detroit, for the allowance of a claim as preferred creditors. From a decree denying the petition, petitioners appeal.
    Affirmed.

      Keena & Lightner, for petitioners.

      Bowen, Douglas, Whiling & Murfin, for defendant.
   Hooker, C. J.

The City Savings Bank of Detroit closed its doors on Monday, February 10, 1902, and was turned over to the banking commissioner on that day, and he is proceeding to close its affairs by proceedings in the circuit court for the county of Wayne. The petitioners are a firm of bankers doing business in New York, and their petition has been filed in the cause for the purpose of obtaining full payment of a check of $241.11 drawn on February' 6, 1902, by the City Savings Bank upon the Western National Bank of New York, payable to tbe order of the petitioners.

One Milani, of Detroit, contemplated a trip to Europe, and had a conversation with the savings teller of the City Savings Bank, who advised him to take from said bank a letter of credit, and who explained to him the advantages of doing so, instead of carrying a large sum of money about his person. Milani subsequently brought to the bank a check upon it, drawn by his employer, for $500, and drew the money from another officer. He put $100 in his pocket, and paid $400 to the aforesaid teller, who issued to him a letter of credit for £80.' Nothing further passed between them, but the teller entered the amount upon a savings passbook which he (the teller) kept, and put the same in the savings account kept by the bank. He entered Milani’s name on a signature card, and wrote upon it,' “Guaranty for a letter of credit.” This was done to prevent any portion of said sum being drawn except as against the letter of credit, so that if a personal check of Milani had come to the hank, not drawn on that letter of credit, .it would not have been honored. The withdrawals on the account were $173.19, leaving a balance of $226.81. The petitioners paid out drafts drawn on the letter of credit to the amount-of £80, and have been paid only for three of Milani’s drafts, aggregating $128.66. Two other drafts, aggregating $44.53, were drawn. The check of $241.11 was given to pay this item, and other items having nothing to do with Mr. Milani’s account. The check was sent from Detroit February 6th, and should have reached plaintiffs Saturday, February 8th, and it would have been paid had it been presented on that day. The fund into which the $400 paid for the letter of credit by Milani went was not reduced below $1,000 at any time before the bank closed its doors. It is the petitioners’ claim that the $400 paid by Milani for the letter of credit was paid and received by the bank for the specific purpose of meeting the obligation to petitioners under the letter of credit; that it was so treated by the bank; and, since the fund in which it was placed was never depleted below the amount of this trust fund, that petitioners are entitled to be paid in full. Upon the hearing the circuit court in chancery held otherwise, and denied the prayer of the petition.

We think petitioners’ position úntenable. Milani paid his money to the bank for an undertaking to pay him, through others, on demand, a lesser amount. This obligation was honored by other bankers, under some arrangement between the banks. This fund was never paid or received upon trust conditions, and there is nothing to justify giving them priority over other creditors. The entry and memorandum on the card was fully explained as precautionary merely, and not as giving Milani rights superior to those of any other depositor.

The decree is affirmed.

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


author: Montgomery, J.

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    BARTLETT v. WAYNE CIRCUIT JUDGE.
    Probate Courts — Appeal—Bond—Approval—Construction oe Statute.
    3 Comp. Laws, § 9386, provides that any executor, administrator, or creditor may appeal from the decision and report of the commissioners on claims in the probate court to the circuit court, if application for such appeal is filed in the probate office within 60 days from the return of the report. Section 9387 provides that, on appeal by a claimant, he shall, “within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, * * * to be approved by the judge of probate, and filed in his office.” Section 9395 provides that, when an executor or administrator declines to appeal, any person interested in the estate as creditor, heir, etc., may do so, in the same manner as the executor or administrator might have done, providing that such appellant shall, “before the appeal shall be allowed, give a bond, to be approved by the judge of probate." Held, that, to perfect suoh an appeal by an heir, the appeal bond must be first approved by the judge of probate, and then filed within the time prescribed.

      Mandamus by Frank W. Bartlett to compel Robert E. Frazer, circuit judge of Wayne county, to dismiss an appeal from commissioners on claims in probate court.
    Submitted March 30, 1903.
    (Calendar No. 19,763.)
    Writ granted June 30, 1903.

      George W. Radford, for relator.

      Leo M. Butzel and Clyde I. Webster, for respondent.
   Montgomery, J.

This is an application for mandamus to require respondent to vacate an order refusing to dismiss an appeal from a determination of commissioners on claims in the probate court. The facts upon which the motion was based are these: The last day on which an appeal would be allowed by law to be taken was August 30, 1902. The administrator of the estate had not taken an appeal, and was on that day absent from the city. The heirs interested in the estate sought to take an appeal. The probate judge was also absent, and the circuit judge, Joseph W. Donovan, was communicated with, and stated that he would approve the bond on appeal and grant the appeal. This order was not, in fact, entered by him until September 2d, after the period for appeal had elapsed. Subsequently an ex parte application was made, and granted, for an extension of time for taking the appeal; but, as no attempt is made to sustain this ex parte action, no further reference will be made to that. The circuit judge refused to dismiss the appeal, on the ground that the action taken by Judge Donovan was valid.

The sections of the-statute which must be construed are sections 9386, 9387, and 9395, 3 Comp. Laws. They are as follows:

“Sec. 9386. Any executor, administrator, or creditor may appeal from the decision and report of the commissioners to the circuit court for the same county, if application for such appeal be made in writing, filed in the probate office within sixty days after the returning of the report of the commissioners.
“Sec. 9387. In case of an appeal by a claimant against the estate, he shall, within the time aforesaid, and before such appeal shall be allowed, give a bond to the adverse party, with sufficient surety, to be approved by the judge of probate, and filed in his office, with a condition that he shall prosecute his appeal to effect, and pay all damages and costs which may be awarded against him on such appeal. ”
“Sec. 9395. When an executor or administrator declines to appeal from the decision of the commissioners, any person interested in the estate as creditor, devisee, legatee, or heir, or any surety or sureties in the executor’s or administrator’s bond, may appeal from such decision in the same manner as the executor or administrator might have done, and the same proceedings shall be had, in the name of the executor or administrator: Provided, that the person appealing in such case shall, before the appeal shall be allowed, give a bond, to be approved by the judge of probate, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party.”

It is claimed by respondent’s counsel that, when the heirs at law filed a sufficient claim and bond on appeal, it then became the duty of the probate judge to act upon it, and that all that the appellant is required to do is to present the bond, properly executed, together with the claim of appeal, within the time fixed by the statute.

We think this contention cannot be allowed. The appeal is to be taken in the same manner as provided for the executor, and, under either section 9395 or 9387, the requirement is that the person appealing shall, before the appeal shall be allowed, give a bond, to be approved by the judge of probate; and we think a correct reading of the statute contemplates that this approval shall be had before the bond is filed. Similar statutes require an approval of the bond on appeal from justice’s court, and, so far as we are advised,-the practice has always been that these bonds have been approved before the time for appeal has elapsed.

We think the mandamus should issue.

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


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    PEOPLE v. GRIFFITH.
    Burglary — Common-Law Offense — Entering Barn — Special Statute.
    One who breaks and enters the barn of another in the nighttime, with intent to commit the crime of larceny, may be convicted of the burglary of such person’s dwelling house,— both buildings being in the same inclosure, — notwithstanding Act No. 84, Pub. Acts 1899, prescribing a punishment for entering any barn or other outbuilding in the night-time, with intent to commit a felony or larceny.
    Error to Van Burén; Carr, J.
    Submitted April 24, 1903.
    (Docket No. 173.)
    Decided June 30, 1903.
    - George Griffith was convicted of burglary, and sentenced to imprisonment for four years in the State house of correction and reformatory at Ionia,
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Charles A. Blair, Attorney General, and David Anderson, Prosecuting Attorney, for the people.
   Moore, J.

Respondent was convicted of the offense of burglary. He was sentenced for four years to prison. His counsel, in their brief, say:

“But one question is presented by this record, and that is this: Since the taking effect of Act No. 34, Pub. Acts 1899, can one who is guilty of breaking and entering the barn of another in the night-time, intending to steal therein, be informed against and convicted, over objection, of burglary of that other’s dwelling house ?”

It is their claim “that the act of 1899 has restricted the common-law offense of burglary to the breaking and entering in the night-time of the actual dwelling house of another, with felonious intent,” etc., and that the trial, conviction, and sentence of the respondent cannot be sustained.

The respondent was convicted under an information which charged him with having in the night-time of October 25, 1902, feloniously and burglariously broken and entered the dwelling house of one Warren, with intent to commit the crime of larceny therein. The testimony showed respondent broke into a barn at the time alleged in the information, and stole therefrom several bags of beans. This barn was within an inclosure which surrounded the dwelling house of Mr. Warren as well as his barn. The enactment of the law of 1899 did not do away with the common-law offense of burglary. The principles involved are fully discussed in Harris v. People, 44 Mich. 305 (6 N. W. 677), and People v. Shaver, 107 Mich. 562 (65 N. W. 538), and it is sufficient to refer to them.

The judgment is affirmed.

The other Justices concurred.


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    CITY OF DETROIT v. DETROIT UNITED RAILWAY.
    1. Municipal Corporations — Street Railways — Franchises— Repairing Pavements — Duty of City.
    A provision in a franchise granted by a city to a street-railway company, that all repaving or repairing of pavements on streets used by the company shall be done at the expense of the city, without any charge whatever against the company, makes it the duty of the city to repair the foundation necessary for the support of the company’s tracks.
    S. Same — Validity oe Contract — Internal Improvements.
    It is no objection to the validity of such provision that such foundation must be heavier than that required by the ordinary traffic on the streets; nor can it be said that the city thereby engages in a work of internal improvement.

      Certiorari to Wayne; Brooke, J.
    Submitted April 7, 1903.
    (Calendar No. 19,867.)
    Decided June 30, 1903.

      Mandamus by the city of Detroit to compel the Detroit United Railway to make certain repairs on a street. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Timothy E. Tarsney, for relator.

      Corliss, Andrus, Leete' & Joslyn (C. D. Joslyn, of counsel), for respondent.
   Hooker, C. J.

We are asked, upon behalf of the respondent, to review the allowance of a writ of mandamus requiring the respondent, a street-railway company, to make certain repairs on Bagg street in the city of Detroit, the cause being before us upon certiorari to the circuit court for the county of Wayne. The respondent succeeded to certain franchises received by its assignor by virtue of chapter 95 of Howell’s Statutes, and the consent of the relator, whereby, in consideration of respondent’s consent to a low fare, the relator agreed that:

“All paving or repaving or repairing of pavement upon any of the streets upon which said grantees * * * shall hereafter construct, maintain, and operate a street railway shall be done wholly at the expense of the city of Detroit, both within and without the rails of said tracks, and, after being paved or repaved by the city, the same shall be maintained and kept in repair by said city of Detroit, and there shall be no charge whatever, in any form or manner, against said grantees *' * * for said repaving and repairing of said streets and pavements.”

But it was also provided that:

“ This section shall not be construed as relieving the grantees, their successors or assigns, from paving, in accordance with the general street-railway ordinance, at their sole expense, under the supervision of the board of public works, all tracks and the spaces between the double tracks put by or for them into streets already paved at the time of first construction of said tracks in such paved streets; but such work shall be done by the grantees, their successors or assigns, at their sole expense, under the supervision of the board of public works, said supervision to also be at the expense of the grantees, their successors or assigns, who shall restore the street to a condition satisfactory to said board of public works; and thereafter the care of such pavement shall be at the expense of the city, as heretofore provided in this section.
“ In all unpaved streets wherein the grantees are duly authorized by the common council to construct street-railway tracks under the provisions of this ordinance, the preparation of the roadbed shall be made by the grantees, their successors or assigns, the excavation to extend seven inches below the under side of the cross-ties upon which the tracks are laid; but the six inches of concrete required by the ordinance as foundation for the ties to rest upon shall be laid by and at the expense of the city at the time of the construction of the tracks; the city not being required, however, to do the paving between the tracks until the street is paved. The common council may, however, in its discretion, order the paving of the tracks on unpaved streets to be done at city expense contemporaneously with the first construction of said tracks.”

Bagg street had been paved before the respondent constructed its railway upon it. According to the ordinance, it constructed the foundation and laid its track, as required by the city, under the supervision and to the satisfaction of its officers. Subsequently, some spots adjacent to its tracks became in bad condition, the pavement disintegrated and destroyed, and the foundation under the rails in places settled, allowing the rails to settle, due to the use of the track. The railway company having refused to repair the foundation and pavement, this proceeding was instituted. The questions discussed are:

“First. Whether a fair construction of the language ■of the ordinance, with reference to the maintaining and repairing of all the pavement and foundation, can fairly be made to cover the foundation necessary for the support of the track of the respondent company.
“Second. If it can, was the condition ultra vires ?
“ Third. Is mandamus a proper remedy ?”

We think but one answer can reasonably be given to the first question, viz., that the city, and not the respondent, should do this work. Counsel invokes the principles enunciated in People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400), and Attorney General v. Pingree, 120 Mich. 550 (79 N. W. 814, 46 L. R. A. 407), viz., that “it is unlawful to impose a tax to aid a private enterprise,” and that “the city cannot engage in a work of internal improvement. ” There is no uncertainty in the contract, as shown by the words:

“There shall be no charge whatever, in any form or manner, against said grantees, their associates, successors, •and assigns, for said repaving and repairing of said streets and pavements.”

It is claimed, however, that the city had not the authority to bind itself by such a contract, for the reason that the construction and use of a street railway requires a heavier and stronger foundation than is required in the other portions of the highway used by lighter vehicles. A street railway is a public utility; it is an appropriate and necessary method of using the highway; and the municipalities may permit them to occupy and use portions of the streets. Such occupancy is in common with that of the general public, all persons being at liberty to. drive upon and over them where they are laid in the traveled portion of the street. The street-railway law does not in any way relieve the municipalities from the responsibility of maintaining the highways in a reasonably safe condition for public travel, and, as it cannot shift its liability to a railway company by contracting with it for the maintenance of the way, it would seem that it should be authorized, if it is not under a legal obligation, to repair the way when out of repair, whatever the cause. The right to assess the cost of pavement upon adjacent landowners is settled, and a wide discretion as to kind, solidity, and cost is left to the authorities. There can be no doubt that they may specify such a pavement as the present or prospective traffic of the street may require, and provide varying foundations according to circumstances. In all ordinary cases the same are made adequate to sustain the vehicles that will traverse the streets. If street cars could be run without a fixed way of special construction, so that they could run upon any portion of the highway, the foundations of the entire roadway would need to be heavier and stronger, and in such case there would be no impediment to the construction of the same in the ordinary routine of building and repairing highways, unless it be the fact that the running of such cars might be a monopoly. Street railways are adapted to aid travel in the public highways, and, while the laws providing for their use impose upon private corporations the burden of constructing and operating them, all such laws contemplate that they will be constructed upon the highway. They presuppose a highway maintained by the public, and we are of the opinion that it is not beyond the authority of the public officers to build a highway that will support such traffic, even though it need a heavier pavement than ordinary traffic requires. We are also of the opinion that it cannot be said that the city engages in a work of internal improvement by making a contract whereby it shall construct and repair its highways and pavements, instead of allowing the railway company to interfere with them.

The order is reversed, and the writ denied.

Carpenter, Grant, and Montgomery, JJ., concurred with Hooker, C. J. Moore, J., concurred in the result.


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    HEFFRON v. DALY.
    1. Life Insurance — Anti-Rebate Law — Premium Note — Validity —Consideration.
    2 Comp. Laws, § 7219, makes it a misdemeanor for a life-insurance agent to pay or allow any rebate of premium as an inducement to insurance.- In an action by such agent on a premium note, the amount of which he had paid to the company, it appeared that he had induced defendant to take the insurance by giving him the benefit of the agent’s commission of one-half the premium, taking the note in suit for the balance. Held, that the note was void for want of considera tion, by reason of the illegality of the insurance contract.
    2. Same — Illegal Contract — Pleading.
    The illegality of a contract of life insurance, because made in violation of the anti-rebate law, need not be pleaded in defense of an action on a premium note, as it is the duty of the court to take notice of the illegality sua sponte.

    Error to Wayne; Frazer, J.
    Submitted April 9, 1903.
    (Docket No. 10.)
    Decided June 30, 1903.

      Assumpsit by John Heffron against William M. Daly upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Reversed.

      W. W. Wicker, for appellant.

      Hayes & Lawson, for appellee.
   Hooker, C. J.

This plaintiff’s action is based upon a promissory note for $139, dated September 8, 1896, payable to the plaintiff, or order, on dr before January 1, 1897. His proof shows that the note was given in payment of the first premium upon a policy of insurance, which policy was afterwards delivered to the defendant by the plaintiff, who was agent for the company issuing it, to which company the amount of the note was paid by the plaintiff as its share of the premium.

By way of defense, the defendant insists that he received no consideration for the note, which he said was given “ for the accommodation of the plaintiff, upon the understanding that he was not to be called upon to pay it if the policy was not all right.” He says the policy was not “all right ” for the following reasons:

1. Defendant’s-application for a policy was solicited, and, as an inducement for him to take it, plaintiff offered to give him the benefit of the agent’s commission, viz., one-half of the premium, .and take defendant’s note for the remainder, i. e., |139, and that this reduction of the first premium was'a violation of Act No. 171 of the Public Acts of 1889, being 2 Comp. Laws, § 7219, and rendered the policy illegal and void.
2. Defendant’s policy never was in force, for the reason that it contains a provision that payment of premium to any person, except in exchange for the official receipt of the company, will not be recognized by the company or deetaed a valid payment; and the application provides that’ “.any policy issued upon this application shall not go into effect until the first premium has actually been paid in cash during the lifetime and good health of the applicant.” No such .receipt was given to the defendant, nor has he ever paid the first premium in cash, though the evidence shows that the company received said premium, less the agent’s commission, from the plaintiff, and issued the policy.
3. Defendant contends that the policy is void for the further reason that his age is stated as 55 years in his application, when he was in fact 58 years of age, and so informed the agent. He says he called plaintiff’s attention to it when he delivered the policy, and told him that “he-did not think the policy was any good because of the age. Plaintiff denied this testimony, and testified that the defendant did not inform him that he was born in 1838; also, that the policy was a receipt for the first premium.

It appeared upon the trial that the insurance company went out of business in 1900, and that its affairs are being-closed by a trust company.

The learned circuit judge submitted one question to the jury, viz.: Whether the plaintiff was a party to the alleged misrepresentation of defendant’s age. He instructed them that the note was not void by reason of the violation of the statute. 2 Comp. Laws, § 7219. In this we think he erred. The contract of insurance was prohibited by law, and the act of making it was a penal act. The contract was therefore illegal, and, being so, the consideration for the note failed. State Life-Ins. Co. v. Strong, 127 Mich. 346 (86 N. W. 825); Citizens’ Life-Ins. Co. v. Commissioner of Insurance, 128 Mich. 85 (87 N. W. 126). It is said that the point should have been pleaded. If there would otherwise be force in this point, it is avoided by the rule that it is the duty of the court, sua sponte, to take notice of illegality. Richardson v. Buhl, 77 Mich. 632 (43 N. W. 1102, 6 L. R. A. 457); Oscanyan v. Arms Co., 103 U. S. 261.

The judgment is reversed, with costs of both courts, and there is no occasion for a new trial.

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


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    HODGSON v. FISHER.
    Deeds — Description of Land — Appeal—Evidence.
    On a review of the evidence, the conclusion of the circuit judge as to the location of certain lands conveyed was sustained.
    Appeal from St. Clair; Law, J.
    Submitted April 23, 1903.
    (Docket No. 46.)
    Decided June 30, 1903.
    Bill by William F. Hodgson against Alexander T. Fisher, impleaded with William Fisher, Jr., to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      Avery Bros. & Walsh, for complainant.

      William D. Fox (Atkinson & Atkinson, of counsel), for defendant.
   Moore, J.

This case is an appeal by the defendant from a decree rendered in favor of the complainant. The bill is filed by complainant to remove a cloud from the title to a piece of land situated in the township of Clay, in St. -Clair county. Defendant Alexander T. Fisher answered, claiming title to the land described in the bill of complaint. Defendant William Fisher, Jr., filed a disclaimer.

Both parties agree that on March 1, 1873, the title to said lands was in one Thomas Fish. On that day Thomas Fish and wife made, executed, and delivered a warranty deed to one William Q. Fish, which deed contained the following description:

“One acre of land, to be laid off in square form from the northeast corner of the farm of the said Thomas Fish, in lot No. % of Harsen’s Island, township of Clay, St. Clair county, State of Michigan.”

The defendant claimed this deed did not convey the title to the land described in the bill of complaint.

The circuit judge found that a fair construction of this deed, from the description therein contained, locates this acre in the most northerly part of the Thomas Fish farm, next to the river St. Clair, and that the testimony shows the parties to this instrument gave this construction to this description by actually locating the acre in said place, as the grantee went into possession of an acre in that location, which acre extended to the river St. Clair. He also found that the grantee in said deed from Thomas Fish and wife, dated the 1st day of March, 1873, and all subsequent grantees in the chain of title, including tenants and contract purchasers under any of these grantees down to the complainant, have occupied to the river on this land, excepting the public have been permitted to use a strip of land next to the river and off from the river front as a highway, and that the possession of the land described in the bill of complaint is, and has been since the year 1873, in the complainant or his grantors in the chain of title. The important question in the case is one of fact, and we think the conclusion reached by the circuit judge is fully, sustained by the.evidence.

The decree is affirmed.

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