text:
    McGEE v. BAUMGARTNER.
    1. Libel — Privileged Communications — Malice.
    Defendant, after a conversation with G., who had lost a position with the employer of plaintiff’s husband through the efforts, as G. believed, of plaintiff’s husband, reduced to writing certain charges of misconduct made by G. against plaintiff and her husband, in order that they might be considered by the employer, with the result that plaintiff’s husband was discharged. The acts of misconduct were set forth as having occurred, one two years, and the other seven months, before the writing was made. The allegations being charged as libelous, defendant filed with his plea a notice that the matters were of common report, and had previously often come to his knowledge; but on the trial he testified that, although he was a near neighbor of plaintiff, he had heard nothing derogatory to her character prior to his being called upon to write out the charges. Held, that a finding that defendant acted maliciously, being actuated by a desire to assist G. in procuring the discharge of plaintiff’s husband, and not as a voluntary and disinterested amanuensis, was based on sufficient evidence.
    2. Same — Injury to Feelings — Speoieioation oe Damages.
    In an action for libel, where there is no testimony or claim of damages to plaintiff’s property, business, trade, profession, or occupation, there is no occasion to instruct the jury to specify in their verdict separately, as required by Act No. 216, Pub. Acts 1895, § 2, the amount awarded for damages to feelings and the amount awarded for other damages.
    3. Same — Instructions—Failure to Request.
    Defendant in an action for libel cannot complain on appeal that the court failed to instruct the jury to specify in their verdict separately» as required by Act No. 216, Pub. Acts 1895, § 2, the amount awarded for damages to feelings and the amount awarded for other damages, where he made no request for such instruction.
    4. Same — Damages to Reputation — Constitutional Law.
    The right to recover in an action of libel for damages to reputation cannot be abridged by statute. Park v. Free Press Co., 72 Mich. 560, followed.
    5. Same — Specific Issues — Evidence.
    In a libel, where specific acts of disgraceful conduct are-charged, evidence of other acts is inadmissible. Proctor v. Houghtaling, 37 Mich. 41, followed.
    6. Witnesses — Surprise—Attacking Credibility.
    Where defendant, claiming to have been taken by surprise by the testimony of one of his witnesses contradictory of an affidavit previously made for defendant’s attorney, which affidavit the witness claimed was obtained by threats, was permitted to show that no threats nor force were used, he has no occasion to complain because he was not permitted to proceed further in attacking the credibility of the witness.
    Error to Wayne; Carpenter, J.
    Submitted June 9, 1899.
    Decided September 19, 1899.
    Case byRosann McGee against Anthony Baumgartner, Edward Sullivan, and Moses Giller for libel. From a judgment for plaintiff, defendant Baumgartner brings error.
    Affirmed.
    This is an action of libel. The libelous article complained of consists of a letter written by defendant Giller to Rev. Frederick J. Baumgartner, a brother of defendant Baumgartner, and secretary and chancellor of the diocese of the Romon Catholic Church of Detroit. It is unnecessary to state the substance of the article. This is fortunate, for the charges are of too vile a character to put in print, unless absolutely necessary to an understanding of the case. Giller is a son-in-law of defendant Baumgartner, and Sullivan is the brother of the plaintiff. Plaintiff and her husband were, and had been for some time, employed in Mt. Olivet Cemetery by the superintendent, and occupied a house belonging to the cemetery company. Sullivan and Giller had both been discharged by the superintendent of the cemetery. Giller and Sullivan went to defendant B. and made a statement to him of the acts of plaintiff, McGee, and her husband, mentioned in the letter, and requested him to accompany them to the bishop’s residence, and introduce them, so that they could bring the misconduct of the plaintiff and her husband before the bishop. The three went together to the bishop’s residence, and defendant B. introduced the others to his brother, the chancellor, in the absence of the bishop. Giller and Sullivan then stated to- the chancellor the substance of their complaints. • He advised them to put it in writing, so that it might be placed before the proper authorities in a proper manner. They went away. Defendant B. then wrote the letter to be signed by Giller. Giller and Sullivan could not write, and defendant B. signed Giller’s name to the letter, and, f after keeping it some days, took it to the chancellor, and it was laid before the board of trustees. McGee was discharged. Plaintiff recovered a verdict and judgment for $1,000, ■which, upon a motion for a new trial, was reduced to

      William, Look and Ira G. Humphrey, for appellant.

      Edwin Henderson, for appellee.
   Grant, C. J.

(after stating the facts). The circuit court instructed the jury, at the request of defendant’s counsel, that the letter was a privileged communication, presumed to have been written without malice; that plaintiff could not recover against defendant B. unless they were satisfied, not only of the falsity of the contents of the letter, but that B. was actuated by malice or ill-will towards plaintiff when he wrote the letter; that, unless the statements in the letter were both false and expressly malicious on the part of B., they should acquit him; that if tjie jury found that B. believed the statements made to him by Giller and Sullivan to be true, and merely acted as a penman to put them in writing to be laid before the chancellor, in order that an investigation might be made, they should acquit him, unless they found that he was actuated at the time by malice towards plaintiff or her husband; and that if they found that he acted in good faith in writing the letter, believing that the statements made to him by Giller and Sullivan were true, and that he had no malice or ill-will, they should acquit. The only objection raised to these instructions is that there was no testimony to show malice on the part of B., and therefore the court should, as requested, have directed a verdict for him. There is testimony tending to show that B. knew that Giller and Sullivan were not acting in the interest of good morals, but were taking this course because they attributed their discharges to plaintiff’s husband, and desired to “get even” with.him by procuring his discharge. B. lived, and had for some time, a near neighbor to Mr. and Mrs. McGee. He testified that he had heard nothing and knew nothing against their characters until these charges were made by Giller and Sullivan. With his plea he served notice of justification, and “that the matters alleged as libelous in said declaration were of common report, and that such reports had previously and often come to the knowledge of said defendant, and that said words were and are true as therein set forth. ” He also knew that one of the disgraceful acts charged was alleged to have been committed two years, and another seven months, before they had spoken to him about them. If the charges made were true, the jury would naturally infer that those living in such close proximity to the plaintiff as did the defendant B. would have heard of them. This and other testimony was sufficient to authorize the jury in finding that B. did not act merely as a voluntary and disinterested amanuensis for Giller and Sullivan, and that he was actuated by a desire to assist Giller and Sullivan in their efforts to secure the discharge of Mr. McGee. The instructions were as favorable as the defendant was entitled to.

The court did not instruct the jury to specify the amount awarded for damages to feelings separately from the amount awarded for other damages, under section 2, Act No. 216, Pub. Acts 1895. There are two answers to this contention: (1) Defendant made no request for compliance with this statute. The point was not raised upon the trial. It is too late to raise it now. Mahiat v. Codde, 106 Mich. 387, and authorities there cited. (2) The object of this statute was to separate damages for injured feelings from those to property, business, trade, profession, or occupation, mentioned in the first section of the act. There was no testimony or claim of damage to plaintiff’s property, business, trade, profession, or occupation.

Error is assigned' upon the instruction that the jury might find damages to plaintiff’s reputation. The point' is that the act above cited prohibits recovery for damages to one’s reputation. Whether this be so or not, we need not discuss. If it does, the act in this respect is clearly unconstitutional, and the point is expressly ruled against the defendant by Park v. Free Press Co., 72 Mich. 560 (1 L. R. A. 599, 16 Am. St. Rep. 544). The constitutionality of the act is assailed upon other grounds. A determination of that question is unnecessary, and we decline to discuss it.

Defendant alleges that the court erred “in excluding testimony of alleged orgies of plaintiff, and of other complaints against her, which have affected her character and lessened the damages.” Counsel cite no authority in support of this proposition. Such testimony was con-' demned by this court, and the reason of its inadmissibility shown, in Proctor v. Houghtaling, 37 Mich. 41.

Defendant claimed to have been'taken by surprise by the testimony of one of his own witnesses. He then submitted to her an affidavit, which she had made in writing, contradictory of her statements upon the stand. Defendant was permitted to put leading questions to her in regard to this affidavit.' She admitted having made the affidavit, but said it was obtained from her by threats in the office of the defendant’s attorneys. The witness who drew the affidavit was then called, and asked to state specifically the language used by the witness when the affidavit was prepared. Plaintiff’s counsel objected, for the reason that it was an attempt to impeach the defendant’s own witness. The court at first sustained the objection, but finally permitted the witness to testify as follows:

“Q. State whether or not there were any threats, any force, used, or any threats or any offers of reward for making this statement.
“A. Nothing whatever.
“Q. State whether or not you said to her that she would be well paid if Mr. Baumgartner could win his case.
“A. I never said anything of the kind.
“Q. Who was with you when you wrote this?
“A. Mr. Sullivan.
“Q. Where was Mr. Baumgartner?
“A. He was downstairs.
“Q. Did you attempt in any way to frighten Miss Wincke ?
“A. Not in the least.”

We think the court went far enough to permit defendant to attack the credibility of his own witness.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BULLOCK v. UEBERROTH.
    1.Justices of the Peace — Proof—Supplying Defects.
    Justices of the peace cannot treat facts material to a particular case as established because shown before them in a different case; nor can they supply defects in the proof by an ex parte examination of plaintiff’s witnesses after the trial is closed.
    2. Same — Certiorari—Technical Defects.
    2 How. Stat. § 7044, which provides that the circuit court, on certiorari to a justice of the peace, shall give judgment “as the right of the matter may appear, without regarding technical omissions, imperfections, or defects which did not affect the merits,” does not authorize an affirmance on certiorari of a judgment for plaintiff, rendered without his having established all the facts material to his case.
    3. Actions — Contracts—Parties.
    Where B. sues upon a contract, wherein he appears as agent, under which money is payable to B. & Co., he cannot recover without proving that he was doing business under the name of B. & Co., or that B. & Co. assigned the contract to him.
    4. Same — Assumpsit—Declaration—Bargain and Sale.
    A recovery for the breach of a contract for the sale of goods cannot be had upon a declaration containing only the common counts in assumpsit and a special count for gpods sold ' and delivered.
    Error to Bay; Maxwell, J.
    Submitted June 9, 1899.
    Decided September 19, 1899.

      Assumpsit by Dorus A. Bullock against Christopher H. Ueberroth for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      J. E. Kinnane, for appellant.

      U. E. Loranger, for appellee.
   Moore, J.

The plaintiff commenced suit in justice’s court against defendant by summons, in which he described himself as Dorus A. Bullock, doing business as D. A. Bullock & Co. The summons was personally served. The plaintiff declared orally upon all the common counts in assumpsit, and specially for goods sold and delivered by the plaintiff to defendant. Upon demand a bill of particulars was furnished, which was stated to be as follows:

“Order for the County of Bay.
“D. A. Bullock & Co.: You are hereby authorized to publish for me one copy of ‘The County of Bay,’ according to promises made in your printed prospectus, for which I will pay to your order $15.00 when said work is presented to me, or left at my residence or my place of business. Said work to contain one complimentary miniature metallic engraving of myself, providing I furnish you with photo within sixty days from this date.
[Signed] '“C. H. Ueberroth.
“P. 0.-.
“City.
“Date, Eeb’y 27, 1896.
“D. A. B., Agent.”

Indorsed on the back thereof is the following:

“In case of Mr. Ueberroth should make such business change as to sell out and go out of business, this order is thereby canceled. . D. A. Bullock.”

The defendant pleaded orally the general issue, and gave notice that the contract under which plaintiff claims was executed and delivered for the Ueberroth-Ellis Company, a corporation, and on condition that the same should not be operative or take effect unless said company should continue in business, and should be of no effect if said company should go out of business before the delivery of the book therein mentioned; that said company did go out of business before delivery or tender of said book; also that the signature of defendant was obtained to said contract upon the express understanding that it was for said company, and that said contract was not to be binding on said 'defendant, but only on said company. The case was tried before the justice, who rendered a judgment in favor of the plaintiff. The case was removed by certiorari to the circuit court, where the judgment rendered in justice’s court was reversed. The case is brought here by writ of error.

The grounds for the certiorari are summarized, by counsel as follows:

“1. There was no evidence tending to establish plain- ' tiff’s right to recover under the contract with D. A. Bullock & Co. There was no evidence in the case connecting Dorus A. Bullock in any manner with the contract sued upon, except as agent for D. A. Bullock & Co., which he is designated therein.
“2. There was no evidence whatsoever under which Dorus A.'Bullock or D. A. Bullock & Co. could recover under the pleadings in the case. The declaration was on all the common counts in assumpsit, and the bill of particulars was the contract. The evidence tended to show nothing but a breach of contract. There was no evidence whatever to establish the cause of action.”

It is claimed that the pleadings do not show, nor does the proof, that Dorus A. Bullock was doing business as D. A. Bullock & Co., nor do they allege or show that the claim of D. A. Bullock & Co. was assigned before suit to Dorus A. Bullock. We have already stated what the pleadings are. In the affidavit for certiorari it is sworn to positively that no proof was made of any assignment from D. A. Bullock & Co. to Dorus A. Bullock of the contract, or that Dorus A. Bullock was doing business under the name of D. A. Bullock & Co. In his return the justice sets out the testimony taken before him. In the testimony neither of the facts just stated appears. He then states in his return:

“I would not say positively whether or not proof was made of the fact that Dorus A. Bullock was doing business under the name of D. A. Bullock & Co., and it was not called to my attention until after the taking of proofs had been closed. That such proof was deemed by me as unimportant in this case, as the fact that Dorus A. Bullock was doing business as D. A. Bullock & Co., and was the sole proprietor of said atlas, was well known to me, having been fully shown in other cases which were tried by me and before me at and about the same time that this suit was tried. In one of these cases, namely, D. A. Bullock & Co. against Adam Kolb and Gfeorge Kolb, a copartnership doing business as Kolb Bros., on a motion for security for costs, the plaintiff in said last-mentioned cause was examined on oath on a motion for security for costs before me fully as to his financial responsibility, and as to the persons constituting the said D. A. Bullock & Co., named in said order. Also that after the objection was raised, and the day after the trial of said cause, and before the decision was rendered therein, I did question the said Dorus A. Bullock, and that he stated under oath that he alone constituted the firm of D. A. Bullock & Co., and that he was doing business under that name.”

We think it appears affirmatively from an inspection of the return that the testimony was not given during the trial of the cause. It is hardly necessary to say that the magistrate had no right to take testimony in the case after the trial was closed, nor had he any right to supply any defect in the proofs by acting upon knowledge which came to him in some other case.

It is urged by counsel for plaintiff that the circuit judge should not have reversed the case, because it comes within 2 How. Stat. § 7044, which reads:

“ The court shall proceed to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections, or defects in the proceedings before the justice which did not affect the merits.”

He says this court condemns the practice of resorting to certiorari, and that the objections here are technical, and should not prevail; citing Galloway v. Corbitt, 52 Mich. 460; Morrison v. Emsley, 53 Mich. 566; Mann v. Tyler, 56 Mich. 567; Gray v. Willcox, Id. 63; Cheney v. Russell, 44 Mich. 620; O’Hara v. Mernan, 79 Mich. 226; Erie Preserving Co. v. Witherspoon, 49 Mich. 379; Stoll v. Padley, 98 Mich. 18; Forbes Lithograph Manfg. Co. v. Winter, 107 Mich. 118. It is true, as stated by counsel, that the court does not favor the disposition of cases upon technicalities, but it is also true that it is just as necessary to prove a case in justice’s court as in any court, to entitle a plaintiff to recover a judgment. The paper which is called a “contract” purports to be one between D. A. Bullock & Co. and the defendant, wherein D. A. Bullock appears as agent. If the court is to act upon the paper as it reads, there is an entire failure to show a cause óf action in the plaintiff. This failure should have been supplied by the plaintiff. Cicotte v. Morse, 8 Mich. 424; Berry v. Lowe, 10 Mich. 9; Hyde v. Nelson, 11 Mich. 353; Chicago, etc., R. Co. v. Peters, 45 Mich. 636.

It is said by counsel that in States like this, where there is no statute prohibiting the use of a name or an abbreviation to do business under other than that of the individual, there is no presumption that, when “& Co.” is used after the dealer’s name, he has a partner, or that such designation includes more than one person; citing Brennan v. Pardridge, 67 Mich. 453, and Bjorkquest v. Wagar, 83 Mich. 228. These cases do not state the rule quite as broadly as stated by counsel. In the first case the plaintiff was the administrator of the estate of Mr. Walsh. At the trial it was proven that the business done in the name of Thomas Walsh & Co. was the business of Mr. Walsh. It was claimed that, as the business was conducted in the name of Thomas Walsh & Co., the defendant had a right to presume there was a partner. In discussing that feature' of the case, the court said, in substance, that in this State there is no necessary presumption that, when “ & Co.” is made use of after the dealer’s name, he has partners. In the Bjorkquest v. Wagar case there was attached to the declaration a statement of the account for which suit was brought, and an affidavit, in which it was alleged that the plaintiff was doing business in the name of O. D. Bjork-quest & Son, and a notice was attached to the declaration that, under the money counts, this affidavit would be offered in evidence,. and the account, affidavit, and declaration were all offered and received in evidence. It was held that this established a prima facie case, under the provisions of 2 How. Stat. § 7525. It is not believed a case can be found where it is held that it will be presumed, in the absence of proof, that a contract purporting to be made between one party bearing a firm name, executed on its part by an agent, and another party, is the contract of the agent, and not of the firm.

As to the second proposition, — that plaintiff could not recover under the pleadings, — it is the claim of defendant that, conceding there is a contract which can be the basis of suit, plaintiff cannot recover under the pleadings, for the reason that, at the utmost, defendant is guilty of a breach of contract, and he should have been declared against for a breach of contract. On the part of defendant, proof was introduced tending to show the truth of all the matters set up in the notice attached to his plea. He swore that he countermanded the order long before any book was tendered to him, and when it was left at his place of business he refused to receive it, and returned it to the plaintiff at his hotel. Plaintiff denied any knowledge of the UeberrothEllis Company, but admits the contract was that, if defendant went out of business before the book was delivered, he was to be under no obligation to take it,’ and insists that he is still in business. The plaintiff’s testimony disclosed that he had no knowledge of the delivery of the book except what he was told by the employé to whom he gave it for delivery; that it was returned to him at the hotel where he was boarding before suit was brought, with a card of the defendant attached to it; and that, before the atlas was delivered, he was told by defendant he would not take it. It is claimed by plaintiff that he had performed his contract, and that he can recover under the common counts in assumpsit, even though defendant refused to receive the atlas; citing Dustan v. McAndrew, 44 N. Y. 72; Mason v. Decker, 72 N. Y. 595 (28 Am. Rep. 190); Shawhan v. Van Nest, 25 Ohio St. 490 (18 Am. Rep. 313); Bagley v. Findlay, 82 Ill. 524; Bement v. Smith, 15 Wend. 493; Bookwalter v. Clark, 11 Biss. 126, 10 Fed. 793. None of these cases support the contention of counsel. In the first of these cases suit was commenced for. the breach of the contract, and the court said:

“The vendor of personal property, in a suit against the vendee for not taking and paying for the property, has the choice, ordinarily, of either one of three methods to indemnify himself: (l) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may sell the property, acting as the agent, for this purpose, of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the' contract price. 2 Pars. Cont. 484; Sedg. Meas. Dam. 282; Lewis v. Greider, 49 Barb. 606; pollen v. Le Roy, 30 N. Y. 549.”

The plaintiff did not adopt either one of the three methods.'

In the case of Bement v. Smith the plaintiff was allowed to recover, not upon the common counts, but upon the special count.

In Bookwalter v. Clark there was a count for nonperformance of the contract, and the court said:

“I think the plaintiffs are entitled to recover, as their true measure of damages for nonfulfillment, the contract price of the article, though it be conceded no title has passed. The title, I think, in such cases, would pass upon the rendition of judgment.”

In Shawhan v. Van Nest the petition of plaintiff set up the contract and the breach of it. Bagley v. Findlay was for damages for breach of contract.

In nearly all these cases the question was the measure of damages, and not whether the case could be sustained under the pleadings. As stated before, defendant refused, for reasons which he explains, to take the book. According to the statement of plaintiff, defendant refused to carry out the contract. Giving the plaintiff the- most favorable construction of his testimony possible, defendant was guilty of a breach of the contract, and, if the suit were properly brought, would be liable; but we do not think it the law in this State, nor in most of the States, that one can recover as for a breach of contract upon a declaration containing only the common counts in assumpsit and a special count for goods sold and delivered. Cicotte v. Morse, 8 Mich. 427; Gorman v. Newaygo Circuit Judge, 27 Mich. 138; Loranger v. Davidson, 110 Mich. 605.

Judgment is affirmed.

Grant, O. J., concurred with Moore, J. Montgomery, Hooker, and Long, JJ., concurred in the result.


text:
    EAMES v. MANLEY.
    1. Fraudulent Conveyances — Attack in Equity — Laches.
    Where it appears from the averments of a bill to set aside conveyances for the alleged fraud of persons since deceased that the complainant, with knowledge of the fraud alleged, remained silent for a great many years without any reasonable excuse, allowing third persons to acquire interests in reliance upon the validity of the transactions complained of, the bill should, on demurrer, be dismissed.
    2. Same — Lands in Another State — Jurisdiction.
    A court of chancery in one State cannot entertain a bill to set aside for fraud the sale of an intestate’s land in another State pursuant to probate proceedings in that State.
    3. Probate Courts — Jurisdiction—Executor’s Bond.
    The circuit court in chancery of one of the counties of the State has no jurisdiction to require an executor to file in the probate court of another county a new or more ample bond than that which the probate judge of such county has approved.
    Appeal from Kalamazoo; Buck, J.
    Submitted June 22, 1899.
    Decided September 19, 1899.

      Bill by Lucy C. Eames, individually and as administratrix of the estate of Lovett Eames, deceased, against Charles H. Manley, administrator of the estate of Elijah W. Morgan, deceased, and others, for an accounting, and to set aside certain conveyances as fraudulent. From an order, overruling a demurrer to the bill, defendant Manley appeals.
    Beversed.

      N. H. Stewart, for complainant.

      Boudeman & Adams (Lawrence & Butterfield, of counsel), for appellant.
   Moore, J.

To the bill in chancery, filed by the complainant in May, 1896, the defendant interposed a demurrer, which was overruled. From the order overruling the demurrer he has appealed.

The bill avers that complainant is the widow and administratrix of Lovett Eames, who died intestate in September, 1863, possessed of a large amount of real estate in Kalamazoo, consisting of a machine shop and water-power valued at $12,000, certain real estate in Van Burén county, and certain patents and personal property, which, added to the real estate, was valued at nearly $50,000, and personal and real property in Jefferson county, N. Y., worth $50,000, and that none of it, except a small amount of household furniture and a horse, ever came into her possession, either as an individual or as administratrix. It avers that, soon after the death of her husband, her brother, then a resident of Ann Arbor, a lawyer, Elijah W. Morgan, came to her home, and advised with her in relation to her husband’s estate; that she had the utmost confidence in his ability and honesty; that at his request, and that he might advise her intelligently, she delivered to the said Morgan all the books, papers”, and accounts relating to her husband’s business and estate, including his correspondence, and has never been able to possess herself or see any of them from then until now, except a very little that was used in litigation in 1887; that her husband left her with a family of seven children, the oldest of whom was 27 years of age, and the youngest 9 years of age, at the time of the death of her husband, all of whom lived with complainant, except the oldest one, Elisha D. Eames, who was in charge of the manufacturing business of her husband in Jefferson county, N. Y.; that by the advice of said Morgan, upon the petition of her oldest son, complainant was appointed administratrix of her husband’s estate; that she then and there constituted said Morgan her trusted and confidential adviser, and placed herself under his direction. and dominancy, and, while she was nominally administratrix, she only acted as directed to do by said Morgan, having the most implicit confidence in his intelligence and honesty; that the only attorney employed in relation to the estate was J. Davidson Burns, who was entirely under the direction and command of said Morgan, and that all probate court proceedings in said estate, both in this State and in New York, were managed and carried forward by said Morgan without the advice, or even knowledge, of complainant, who gave herself no concern about the management of the estate.

Complainant avers that frequently after 1865, and before said Morgan became non compos, in 1882, she requested said Morgan to account to her for the proceeds of the estate; that he promised to do so, but did not; that he became non compos in 1882, and remained so until his death, in 1892; that he died without accounting with the complainant in relation to his dealings with said estate, and it was not until her family had grown to manhood and womanhood that she knew Morgan had mismanaged the estate, and appropriated every dollar of it to his own use. She avers that when her husband died he owed said Morgan $12,000, and to other persons in the neighborhood of $5,000; that said Morgan caused commissioners on claims to be appointed, who allowed certain claims within the life of their commission; that said Morgan caused claims to be allowed in his favor of $40,000, about $12,000 of which was bona fide indebtedness, and the balance was fraudulent, which was allowed' after July 12, 1864, and after the right of said commissioners to allow claims had expired. Complainant avers that, without her knowledge, said Morgan, in 1863, caused herself and his brother to be appointed administratrix and administrator of said estate by the surrogate court of Jefferson county, N. Y., and caused nearly $12,000 of the claims which had been allowed in Kalamazoo county to be presented for allowance in the surrogate court of Jefferson county, N. Y., which were not allowed, but claims amounting to $3,000 were allowed, which were not bona fide claims; that said Morgan then procured an order for the sale of the real estate in Jefferson county to satisfy said claims, one-half of which had been owned by said Eames; that there was a large amount of personal property in Jefferson county and debts due the estate; that said Morgan • so manipulated the property as to become the owner of all of it, and cheated the estate out of. all of it. The bill avers that, immediately after purchasing said property, Morgan rented it for a large amount of rental, and that other property at Watertown belonging to said estate was rented for large sums, and the rental appropriated to his own use by said Morgan; that he never accounted for this property, and has never returned the books and memoranda, and that it became known in 1887 that Morgan had cheated said estate out of every dollar’s worth of property it possessed; that he and his representatives have refused to return any of said books, or to allow any person interested adversely to him to inspect them.

The complainant avers that the title to the Jefferson-county property is today in the estate of Lovett Eames and his heirs at law, as well as the proceeds of the business, and that no account has been made by said Morgan in the surrogate court in Jefferson county, N. Y. She avers that in April, 1864, she signed a petition to the probate court of Kalamazoo county to sell the real and personal property in Kalamazoo, which sale was to take place on May 12th; that the property was advertised for August 16th, and the sale adjourned to September 17th, when it was struck off to said Morgan, and that the proceedings in relation thereto were fraudulent on the part of said Morgan, the bill describing in detail in what the fraud consisted. Complainant avers that in signing the petition, and in all she did thereto, she relied upon said Morgan, and was in ignorance of his methods.and what he did, and that the lands in Yan Burén county were also fraudulently sold to said Morgan for much less than their value, under the license of sale made in 1864, and that said Morgan so manipulated things as to acquire all the property belonging to said estate; that, while an allowance of dower was made to the complainant, she never got anything except some household and personal property, appraised in the inventory at $359, and that none of the bona fide claims against said estate, except those belonging to said Morgan, have ever been paid; that prior to 1885 said Morgan became financially involved, and, in order to cheat and defraud his creditors as well as said estate, conveyed to his wife his personal and real estate, amounting to $300,000, and that one of the pieces so conveyed was the machine shop and water-power in Kalamazoo, which property was first deeded by Lovett Eames to said Morgan in 1859, but that that deed was in fact a mortgage, given to secure a debt due or to become due to said Morgan; that in 1872 said Morgan gave to his wife a mortgage on said property, which was recorded in December, 1872, and in 1874 gave a deed of said property to his wife, which was recorded in 1874; that said Lucy W. S. Morgan afterwards died, and the executors and trustees of her estate, in 1894, brought ejectment against complainant and the heirs at law of Lovett Eames -to recover the real estate first mentioned, which case was tried, and resulted in a verdict in favor of defendants, but that said executors still persist in claiming title to said property.

The bill avers that, after said Morgan became non compos, he made transfers of real and personal property to Franklin L. Parker, Lucy D. S. Parker, and Lucy W. S. Morgan, each of them knowing that he was of unsound mind; that Mrs. Morgan died in 1887, leaving a will appointing executors, who came into possession of all the books and papers belonging to the Lovett Eames estate, which Mr. Morgan in his lifetime had, and still have them, and refuse to deliver them to the complainant; that in 1892 said Elijah W. Morgan died intestate, and Charles H. Manley was appointed his administrator, and has demanded from the executors of Mrs. Morgan the papers belonging to the estate of Lovett Eames, who refused to deliver them to him. The bill avers that in December, 1894, the complainant was cited to render a final account in the probate court for Kalamazoo county of her doings as administratrix; that she filed her report, and the probate court confirmed the same, and that she cannot make a correct report without the books and papers already described ; that the property belonging to the estate of Lucy Morgan, deceased, amounts to $200,000; that the executors have given a bond of only $50,000, and the bonds are not good, and the trustees of said estate are not acting prudently, and there may not be property sufficient to pay the claim due the estate of Lovett Eames upon an accounting between the two estates; and asks for an injunction and for a new bond. The bill avers that the probate court has refused to require the executors of Mrs. Morgan’s estate to give any other bond.

The bill prays, among other things:

“And your oratrix further prays, the premises being considered, that all the proceedings begun, carried forward, and completed, as sales of the administratrix of the estate of Lovett Eames, deceased, in the State of Michigan, and of your oratrix, as the administratrix of the estate of said Lovett Eames, deceased, and Judson P. Morgan, administrator, with your oratrix, of the estate of Lovett Eames, deceased, in the State of New York, be declared null and void and held for naught, and that the title of the property then and there offered for sale in the State of Michigan by your oratrix at said administratrix’s sale, and the respective sales by said administratrix and said administrator in the State of New York, each and every one be held null and void, and that it be decreed that no title whatever to any of the property there offered for sale ever passed out of and from the estate of Lovett Eames, deceased; and that, so far as may be, all the property, both real, personal, and mixed, that was taken possession of by the said E. W. Morgan at each, every, and all of said respective pretended sales by the administratrix and administrator of the estate of Lovett Eames, deceased, both in the State of Michigan and State of New York, shall be transferred back, so far as may be, to your oratrix, as the administratrix of the said estate of Lovett Eames, deceased; and that, so far as the transfer back to your oratrix of any of said property is unable to be made, that the said personal representatives of the said estate of E. W. Morgan, Charles H. Manley, as the administrator of the estate of E. W. Morgan, deceased, Otis C. Johnson, as the surviving and acting executor and trustee of the estate of Lucy W. S. Morgan, deceased, and Lucy D. S. Parker, as the executrix of the estate of Franklin L. Parker, deceased, shall answer in the full value of said property to your oratrix, and be required to account, in dollars and cents, for the full value of the same, together with lawful interest thereon from the date that the same was taken and appropriated, as hereinbefore stated and set forth, by said E. W. Morgan, deceased, and that said defendants be required to return to your oratrix or her solicitors all books, papers, and data belonging to or connected with the estate of Lovett Eames, deceased.”

Attached to the bill are certain exhibits, which are made part thereof, but which it is hot necessary to refer to further.

The demurrer of Mr. Manley assigns, among others, the following reasons for demurrer:

Second. Because- it appears by said bill that the said Lucy C. Eames, as administratrix and individually, has for upwards of 30 years been in default herself in not reducing the assets of said estate to her possession.”
“Fourth. Because it appears by said bill that the said administratrix commenced to ask for an accounting 30 years ago, and that her claims are barred by the statute of limitations.
“Fifth. Because said complainant has been guilty of laches in neglecting her supposed rights for many years.”
“ Eighth. Because the parties familiar with the. transactions set forth in complainant’s bill are dead, as appears by such bill, and complainant has neglected to file this bill until after the real defendants in the causes of action it purports to set forth are no longer alive to explain their relations to facts alleged.”
“Eleventh. Because the judgment of the surrogate court in the State of New York set forth in said bill is attacked, and because such judgment cannot be revised of annulled by the court.
“Twelfth. For the reason that it appears by said bill that the same is exhibited against this defendant for several distinct matters and causes, and that it is so mixed and commingled with alleged causes of action against the said Otis C. Johnson, surviving executor of Lucy W. S. Morgan, deceased, and against Lucy D. S. Parker, executrix of Franklin L. Parker, deceased, and Lucy D. S. Parker individually, that it is impossible for this defendant to determine what parts of the same he ought to make answer unto.”

It is difficult to see how the circuit court in chancery of Kalamazoo county could revise or annul the judgment of the surrogate court for Jefferson county, N. Y. The bill does not state who claim to be the owners of the land in Jefferson county. They are not made parties to this bill, and the courts of this State can have no jurisdiction of them if residents of the State of New York, or of the land in New York. Neither can the circuit court of Kalamazoo county, in chancery, decide what the probate court of Washtenaw county shall do about requiring executors or administrators who are administering estates before that court to give new bonds or more ample bonds. For the purposes of this case, those two features of the bill of complaint may be treated as eliminated from the discussion.

The defendant insists the bill cannot be maintained because of the laches of the complainant. This claim is earnestly resisted by the solicitor for the complainant, who cites but one authority in his briefs, and says the case of Lant v. Manley, 21 C. C. A. 457, 75 Fed. 627, is like this. We cannot agree with the solicitor in this contention. In that case, complainant commenced his suit by attachment against Mr. Morgan, and attached certain real estate before his death, and obtained judgment in June, 1893, and filed his bill in aid of his execution. The court held that such a bill could be maintained.

What standing has complainant to bring a suit to set aside fraudulent conveyances made by Mr. Morgan ? She has taken no action, either before a court at law or by presenting her claim in the probate court, to obtain a judgment.

“The rule is universal that it is only judgment creditors who can take action of this character. Not only must a person become a judgment creditor in order to be in a position to take proceedings to set aside fraudulent conveyances, but this must be followed by the issue of an execution and a levy of it upon the property said to have been so fraudulently conveyed.” McKibben v. Barton, 1 Mich. 213; Krolik v. Root, 63 Mich. 567; Root v. Potter, 59 Mich. 498; Scott v. Wayne Circuit Judge, 62 Mich. 532; Nugent v. Nugent, 70 Mich. 52. “If it is sought to reach equitable assets, then not only must there be a judgment obtained and an execution issued, but the execution must be returned as uncollectible, in whole or in part. ” Clark v. Davis, Har. Ch. 227; Tyler v. Peatt, 30 Mich. 63. See Chancery Rule No. 30, and cases in note.

There had been no such laches in the case of Lant v. Manley, supra, as here, and such laches as there was the complainant excused, so that the court thought his excuse was good. In this case complainant seeks to excuse her delay by saying she had confidence in her brother; but the bill avers: “It became known and was demonstrated about the year 1887 that said Morgan had cheated and defrauded the estate of Lovett Eames out of every dollar’s worth of property it possessed. ” She also says she did not have the possession of the books and papers necessary to advise her- of the situation. The probate court, upon her petition, had abundant authority to require the discovery of any and all books and papers belonging to the estate. 2 How. Stat. § 5876; Perrin v. Calhoun Circuit Judge, 49 Mich. 342; Manly v. Washtenaw Probate Judge, 99 Mich. 441. Though, according to her own showing, she knew all the time where the books and papers were, the record does not disclose that she appealed to the court for their production. The bill shows the claim of Mr. Morgan was allowed in 1864, and complainant knew of its allowance. It also shows that, upon her petition to pay his claim and others, the real estate in Kalamazoo and Yan Burén counties was sold in 1864. It also shows that the probate files and records of Kalamazoo county close, so far as said Morgan’s management of said estate is concerned, in June, 1870; that in October, 1872, Mr. Morgan gave a mortgage to his wife upon the Kalamazoo property, which was recorded in December of that year, and in October, 1874, gave her a deed, which was recorded in December. There is not a suggestion that Mrs. Eames and her children, all of whom had come of age at this time except the youngest, did not know of these conveyances. The complainant fails to state in her bill when she first learned of the fraud sho alleges was practiced upon the estate by Mr. Morgan, but she does say it was not until her children had grown to manhood and womanhood. The oldest son was 27 years old when his father died. The youngest girl became 21 years old in 1875. This bill was not filed until 21 years later. The children, heirs at law, remain silent 21 years after the youngest one has attained her majority; the creditors who were unpaid also remain silent; and the complainant, having knowledge of what was actually done all the time, though disclaiming knowledge of fraud therein for a portion of the time, remains silent a great many years after she had knowledge of the fraud. It is not until her brother, his wife, and Mr. Parker, who are said to have perpetrated the fraud, are all dead, and cannot repel the attacks made upon them, and whose versions cannot be given of the various transactions, which have been spread upon the records of the courts and the registry offices, this claim of fraud is made. It is difficult to imagine a case where the laches are less excused. If this bill can be entertained now, when the parties who possessed the requisite knowledge to enable the truth to be known about the various transactions have long since died, there can be no safety in acting upon conveyances and records of courts.

‘ ‘ A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing.” Smith v. Clay, 3 Brown, Ch. 639; McLean v. Barton, Har. Ch. 279; Campau v. Chene, 1 Mich. 400; Campau v. Van Dyke, 15 Mich. 371; Russell v. Miller, 26 Mich. 1; Craig v. Bradley, Id. 353; McVickar v. Filer, 31 Mich. 304; Wright v. Peet, 36 Mich. 213; Hathaway v. Village of New Baltimore, 48 Mich. 251; Haff v. Haff, 54 Mich. 511; Bumpus v. Bumpus, 59 Mich. 95; Township of Sheridan v. Frost, 62 Mich. 136; Merrill v. Wilson, 66 Mich. 232; Beal v. Congdon, 75 Mich. 77; Dailey v. King, 79 Mich. 568; Edsell v. Nevins, 80 Mich. 146; Corby v. Trombley, 110 Mich. 292; Douglass v. Douglass, 72 Mich. 86; 1 Pom. Eq. Jur. §§ 418, 419; 12 Am. & Eng. Enc. Law, 570.

The demurrer should have been sustained. The order overruling it is vacated, and the bill of complaint dismissed.

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


author: Hooker, J.

text:
    REEVES v. MILLER.
    Fraudulent Conveyances — Mortgages—Foreclosure.
    Creditors of R. cannot reach land which he owned, where S., having a mortgage thereon, foreclosed it, without any fraudulent design, and, after expiration of time to redeem, sold to M., though S. bid in the property for a sum much below its value,.and sold it cheap to M., and M. bought at the suggestion of R., and advanced R. money to carry on business there; it not appearing that R. contributed anything to the purchase, or was promised any interest in the property or its proceeds.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted June 22, 1899.
    Decided September 19, 1899.
    Creditor’s bill by Eleanor C. Reeves against Frederick C. Miller and George R. Reeves. From the decree rendered, complainant and defendant Miller appeal.
    Reversed, and bill dismissed.

      Maher & Salsbury, for complainant. ■

      Rood & Hindman, for defendant Miller.
   Hooker, J.

On the 23d day of April, 1896, Eleanor C. Reeves, the complainant, was granted a decree of divorce with alimony against her husband, George R. Reeves. He was at that time the owner of a manufacturing plant in Grand Rapids, upon which there was a mortgage of $2,000, given to a Mrs. Sweet, who resided in the State of New York. This mortgage was foreclosed, and Mrs. Sweet bid in the property at sheriff’s sale on August 15, 1896, for $2,287. There was at this time an execution levy for $1,800 upon the land, subject to the mortgage, in favor of the Old National Bank of Grand Rapids; and, a short time before redemption expired in the foreclosure proceeding, an execution for $756 in favor of Sweet, Perkins & Judkins was levied upon the premises. Sweet, Perkins & Judkins were counsel for Reeves in the divorce case and for Mrs. Sweet in the foreclosure matter. The property was not redeemed, and on November 1, 1897, Mrs. Sweet deeded it to the defendant Miller, for which Miller paid by giving his check for $2,518.97 on November 9, 1897. The bill in this cause was filed February 17, 1898, to subject the premises to the payment of an amount then due upon the decree in the divorce case, and to declare amounts thereafter to become due upon said decree to be a lien upon such premises. The learned judge of the superior court made a decree in accordance with the prayer of the bill as to amounts due, but denied relief as to amounts not due. Both parties appealed.

It is the claim of complainant that the foreclosure was collusive, and that Miller took a deed of the premises for the benefit of Reeves, and with a design to defraud his creditors. Mrs. Sweet had an unquestionable right to foreclose her mortgage. It is not shown that she participated in any collusive or fraudulent design, and her motive would, perhaps, be unimportant in any event. When redemption expired, she had an indisputable title to the property. But it is claimed that Miller bought the property at the instigation of, and for the benefit of, Reeves, and that he has received more money than he paid from insurance that he procured upon the buildings, which were subsequently destroyed by fire. It is admitted that Miller bought the property at the suggestion of Reeves, and that he advanced Reeves money to carry on business there, taking a chattel mortgage on personal property to secure it. We fail, however, to find any satisfactory evidence that Miller’s purchase from Mrs. Sweet was anything but a bona fide transaction in his own behalf, or that Reeves contributed in any way to the purchase, or was promised any interest in the property, or the proceeds of it. We have no doubt that Mrs. Sweet bid the property in for a sum much below its actual value; perhaps she sold it cheap; but both she and her grantee acquired title nevertheless. The title of Miller does not fail because he bought at suggestion of Reeves, nor have Reeves’ creditors any cause for complaint because it was so bought. We think they have not shown that Reeves has any interest in the property.

The decree of the superior court is reversed, and the bill dismissed, with costs of both courts.

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


author: Grant, C. J.

text:
    FIRST NATIONAL BANK OF PAW PAW v. HOUSEKNECHT.
    Promissory Notes — False Representations —Bona Fide Purchaser.
    The fact that a note was acquired from the maker by fraudulent representations does not vitiate it in the hands of one taking it in payment of an antecedent debt, before maturity, and without notice.
    Error- to Van Burén; Buck, J.
    Submitted June 22, 1899.
    Decided September 19, 1899.

      Assumpsit by the First National Bank of Paw Paw against Albert L. Houseknecht and another on a promissory note. From a judgment for plaintiff, defendant Houseknecht brings error.
    Affirmed.
    This suit was brought in justice’s court upon a promissory note dated November 18, 1895, for $160, payable to the order of the plaintiff 30 days after date, at its bank, with interest at 10 per cent., payable annually, and signed, “A. L. Houseknecht. , W. A. Stanton.” J. I. Houseknecht, defendant Houseknecht’s son, and one Stanton, were engaged in business together, but whether as partners was a disputed question. Young Houseknecht was engaged in business at Kewanee, 111., under the firm name of “J. I. Houseknecht & Co.” Stanton was a produce dealer at Gobleville, Mich. J. I. Houseknecht & Co. drew a check on the First National Bank of Kewanee, 111., to W. A. Stanton or bearer. Stanton took this check to the plaintiff, indorsed it, and received the cash upon it. The check was forwarded in the usual course of business to the bank at Kewanee, and was returned protested. Stanton thereupon paid plaintiff |40 in money, and delivered to it the -note in question for the balance. Houseknecht defended upon two grounds:
    1. That he was induced to sign the note as a surety by false and fraudulent representations made by Stanton, and that plaintiff had notice of this fraud before it parted with anything of value for the note.

      2. That plaintiff gave no consideration for the note which would bind defendant Houseknecht.
    Plaintiff recovered verdict and judgment in both courts.

      Anderson & Chase (W. Cr. Howard, of counsel), for appellant.

      T. J. Cavanaugh, for appellee. .
   Grant, C. J.

(after stating the facts). The theories of the defense were fully and fairly submitted to the jury by the court. The principles of law involved are familiar to the profession, and it would be idle to reiterate them here. The verdict of the jury disposed of all the questions of fact, and they found either that there were no fraudulent representations, or that, if any were made, plaintiff had no notice thereof before parting with value, and that plaintiff took the note in payment of the balance due upon the check before it had notice of any taint.

Judgment affirmed.

The other Justices concurred.


text:
    DUMPHEY v. HILTON.
    1. Tax Sales — Redemption—Persons Under Disability.
    The right of redemption from a tax sale is purely statutory, and cannot be extended by the courts in order to afford relief to persons under disability.
    2. Same — Reopening Decree.
    Hence, a petition to reopen a decree in a tax proceeding under the law of 1889, on the ground that the owner of the land was mentally incompetent, and was not represented by guardian ad litem, was properly denied; the period of redemption from the sale under the decree having expired, and the law of 1889 not providing for the appointment of such guardian.
    Appeal from Monroe; Kinne, J.
    Submitted January 25, 1899.
    Decided September 19, 1899.
    Petition by Azuba Dumphey, by Edith Dumphey, her next friend, against Joseph S. Hilton and Roscoe D. Dix, auditor general, to reopen a decree in a tax proceeding. From an order sustaining a demurrer to the petition, petitioner appeals.
    Affirmed.
    The petitioner was the defendant in Hilton v. Dumphey, 113 Mich. 241. After that decision, petitioner filed the petition in this case to reopen the decree in chancery rendered in April, 1892, under which the lands were sold and bid off to the State. The petition is made by Edith Dumphey, who was appointed the general guardian of Azuba Dumphey in September, 1897, and asks for her appointment as next friend to prosecute the petition; that said Azuba is now, and has been for eight years, mentally incompetent; that said Azuba is the owner of, and in actual possession of, said land as her homestead; sets forth the tax proceedings, and alleges that, through her mental incompetency, Azuba neglected to appeal from the decree rendered in that case; alleges, on information and belief, that, after said decree was rendered, her solicitor endeavored to persuade her to pay the taxes so declared to be legal; that, on account of her mental incompetency, she took no further steps either to pay or further contest the validity of the tax, and allowed the premises to be sold. The petitioner then alleges certain irregularities in the tax proceedings, and that Azuba was incapable of realizing the situation, and not responsible mentally or legally for her acts therein. The petitioner offers to pay the tax, interest, charges, and costs of the suits heretofore had in said matter. To this petition a demurrer was interposed and sustained. From this order petitioner appeals.

      Willis Baldwin and Landon & Lockwood, for petitioner.

      Randall & Corbin, for defendant Hilton.

      A. B. Bragdon, for defendant auditor general.
   Grant, C. J.

(after stating the facts). Practically, this is an application to redeem from a tax sale nearly six years after the sale was made and five years after the time for redemption had expired. The statute of 1889, governing this case, makes no exception in the case of those under disability, such as coverture, infancy, insanity, and incompetency. It is insisted on behalf of petitioner “that the property of an incompetent person or an infant cannot be taken without the appointment of a guardian ad litem or some person to act for him.” This is not the rule in tax proceedings, unless the fact that the law now provides for proceedings in chancery, and decree and sale thereunder, has changed it, and made such proceedings subject to the same rules and procedure as other suits, where jurisdiction of the person must be obtained, like those cited in the brief of petitioner. Proceedings to collect taxes are usually proceedings in rem. The fact that the statute authorizes these proceedings to be taken in a court of equity does not make them any the less proceedings in rem. The property alone is described in the petition. Every one knows that his land is subject to taxation. Every one is presumed to know the law. If he fails to pay, he must be held to know that proceedings will be taken to enforce these taxes against his land, and not against him personally. If not paid, he knows that his property will be advertised and sold under a decree in chancery, without reference or further notice to the owner of the land, or to the person against whom it is or may be assessed. Courts cannot read into revenue laws extensions of time to redeem, exceptions, etc., not found in the law. When the law provides for the sale of all delinquent lands, it applies to the lands of those under disability as well as to others. The cases cited on behalf, of complainant are not tax cases. “The same strict rules apply to persons under disability as to others, unless the statutes otherwise provide.” 25 Am. & Eng. Enc. Law, 419. The law of 1893 does otherwise provide. Section 69, Act No. 206, Pub. Acts 1893. One feature of this section was construed by this court. Foegan v. Carpenter, 117 Mich. 89. Similar provision's are found in other States.

It was held by the United States Supreme Court that the right of redemption from tax sales, although it is to be regarded favorably, does not exist, except as permitted by statute. Keely v. Sanders, 99 U. S. 441, 445. The same rule was held in New York (Levy v. Newman, 130 N. Y. 11, 13); and also in Arkansas (Smith v. Macon, 20 Ark. 17); and in Iowa (McGee v. Bailey, 86 Iowa, 513). It is held in Metz v. Hipps, 96 Pa. St. 15:

“Limitations of remedies are purely statutory. While it may well be doubted whether the legislature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within their power. They may or may not except disabilities, according to their pleasure. If they omit to say anything upon the subject, there is no .power in the courts to supply what may have been an accidental or unintentional omission.”

Cooley states the law as follows:

“But, while the statutes are to be favorably regarded, it is at the same time to be borne in mind that the right to redeem comes from the statute exclusively, and is to be. asserted only in the cases and under the circumstances which are there prescribed. The courts can grant no extension of the statutory time; they can make no exceptions from the general provisions of the statutes to meet the circumstances of hard cases; and if the statutes fail to provide for the cases of disability, like those of infancy, coverture, or absence from the country, the courts are without authority to do so.” Cooley, Tax’n (1st Ed.), 364.

No authority is cited to the contrary,

Decree affirmed.

The other Justices concurred.


text:
    PEOPLE v. TRACY.
    Burglary — Evidence. •
    Upon a prosecution for burglary, evidence that a set of harness, a bridle, and large horse blankets belonging to the complaining witness, a farmer, living 20 and 40 rods, respectively, from his nearest neighbors on either side, were in his barn when night set in, and were gone when he went to do the chores early in the morning, but after daylight, is sufficient to support a finding that the taking was in the night-time.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted June 22, 1899.
    Decided September 19, 1899.
    "Willis E. Tracy was convicted of burglary.
    Affirmed.
    The information in this case contains two counts, the first charging burglary and the second larceny. Respondent was convicted on the first count, which alleged the commission of the crime on October 28, 1896. The property stolen consisted of two large horse blankets, a set of single harness, a bridle, and a pair of hopples. The property was in the buildings when night set in. The owner rose early in the morning, and the property was gone. In March, 1898, some of the property was found secreted on respondent’s premises, and the people produced testimony tending to show that it had been used by him, and that when it was found he denied ever having seen it before. He gave testimony tending to prove an alibi. The jury must have found that this testimony was false, and that the witness who gave it committed perjury. The owner of the property was a farmer. Another farmer lived within 20 rods on one side, and another within 40 rods upon the other side.

      Stone & Twiss and Fred L. O'Melay, for appellant.

      W. H. Frankhauser, Prosecuting Attorney, for the people.
   Grant, C. J.

(after stating the facts). It is contended that there is no evidence that the crime was committed in the night-time. While the locus of this crime was not in a city, as was the case in People v. Dupree, 98 Mich. 28, yet we think that case controls this. The owner testified that he did his chores early in the morning, but it was after daylight, and he then discovered that the property was gone. The property was bulky, and it is not probable that one would run the risk of breaking into a building situated as these were, in daylight, and of carrying away property of this character. The chance of detection would be too great. The question was for the jury.

While counsel for respondent argue other phases of the case, they close their brief by stating that there is, after all, but this one question in the case. We agree with them, and refrain from discussing the other points.

The conviction is affirmed, and, if sentence has not been imposed, the case will be remanded, with instructions to proceed to sentence.

Montgomery, Hooker, and Moore, JJ., concurred. Long, J., did not sit.


text:
    BOARDMAN v. BOOZEWINKEL.
    1. Appeal — Evidence—Harmless Error.
    A judgment will not be reversed for the erroneous admission of testimony where there was other uncontradicted evidence sufficient to justify the findings of the court.

      2. Tax Sales — Title op Purchaser — Oertipioate op Sale— Ejectment — Defenses.
    Title does not pass to a purchaser at a tax sale until he obtains a deed; hence a certificate of sale cannot be set up as a defense to an action of ejectment.
    3. Same — After-Acquired Title.
    Nor can a deed issued on such certificate after the commencement of suit be set up as such defense.
    4. Same — Quitclaim Deed.
    A quitclaim deed by the holder of a tax certificate operates merely as an assignment of the certificate, and gives the assignee no greater right than had the assignor.
    5. Same — Purchase by Mortgagee’s Attorney.
    A purchase of mortgaged premises at a tax sale by the attorney for the mortgagee in foreclosure proceedings will be presumed to have been made in the interest of the mortgagee, and to have amounted merely to a redemption.
    Error to Kent; Adsit, J.
    Submitted June 7, 1899.
    Decided September 19, 1899.
    Ejectment by Mary L. Boardman against William Boozewinkel and wife. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    This case was tried by the court without a jury, and the following findings made:
    “1. Francis D. Boardman became the owner in fee simple, by mesne conveyances from the United States, of the N. E. J of the S. W. |r of section 18, township 7 north, of range 11 west, Kent county, Michigan, on December 8, 1852.

      “2. This land was sold by the sheriff of Kent county, on execution against said Francis D. Boardman and in favor of Julius C. Dennison, to said Dennison, December 18, 1863. Said Dennison conveyed a part of said land to Charles W. Taylor, and said Taylor conveyed the same to Adolphus L. Skinner.
    “3. Said Skinner platted the land he thus purchased into blocks, lots, and streets, April 26, 1873, as A. L. Skinner’s addition to the city of Grand Rapids. That portion containing the land described in plaintiff’s declaration was platted as block 7.
    “4. November 1, 1877, said Skinner and wife gave a mortgage to Henry W. Hinsdale, as administrator of the estate of Henry A. Kerr, deceased, for $3,500, on said block 7, excepting 50 feet off the north side and east end. Said mortgage was duly assigned to Amelia Kerr, as executrix of the estate of said Henry A. Kerr, deceased, December 18, 1879.. Said mortgage was afterwards duly foreclosed, and the land sold by virtue of the foreclosure decree to said Amelia Kerr, as such executrix, March 24, 1881. Edwin F. Uhl was attorney for the said Kerr estate at the -time of the foreclosure of the said mortgage; and also at the time he bid in the premises covered by said mortgage at tax sale for the taxes of 1880.
    “ 5. The land described in the last preceding paragraph was conveyed by said executrix to Edmund M. Barnard December 30, 1889.
    “6. Said Barnard conveyed an undivided half interest in the same land to Sybrant Wesselius January 13, 1890.
    “7. The same' land was platted by said Barnard and Wesselius, as' Barnard & Wesselius’ subdivision in the city of Grand Rapids, March 22, 1890, and the land described in plaintiff’s declaration was platted as lot 24 of said subdivision.
    “8. Said lot 24 was conveyed by said Barnard to said Wesselius May 7, 1890, and by said Wesselius and wife to defendants September 22, 1894.
    “ 9. Said plaintiff, Mary L. Boardman, was married to said Francis D. Boardman August 15, 1839, and they lived together as husband and wife in Grand Rapids, Michigan, from 1850 to July 28, 1882.
    “ 10. Said Francis D. Boardman died at Grand Rapids, Michigan, July 28, 1882.
    “ 11. Plaintiff is now living, and was 79 years of age at the time of the commencement of this suit and the demand of her dower interest in said land.

      “13. Defendants were occupying said lot 24 under their deed from said Wesselius and wife at the time this suit was commenced, and when demand of dower was made upon them, and they still occupy the same.
    “13. The value of the entire 40 acres of land sold on said execution sale at the time of said sale was $10,000. The value of that portion of said 40 acres'in issue in this suit, being said lot 24, at the time of said execution sale, was $60. Since said sale the said 40 acres has been platted into streets and lots. Had it been so platted at the time of. said execution sale, the value of said lot 24 would have been $150.
    “14. Demand was made of said defendants, on behalf of said plaintiff, for her dower rights in said premises, pi’ior to the commencement of this suit, which demand was refused.
    “Conclusions op Law.
    “1. Plaintiff had a dower right in said lot 24, as widow of Francis D. Boardman, deceased, at the time demand was made and at the time this suit was begun, and still has such dower right, which should be assigned to her.
    “2. Owing to the condition of the land described, it is considered that it will be to the best interests of both parties to this suit that said dower be assigned in money, and it is so adjudged and decreed by this court.
    “3. The present value of said dower interest of said plaintiff, together with damages for the detention of her dower in said lot 24, is $4.10.
    “4. Plaintiff is therefore entitled to a judgment against said defendants for $4.10, and costs of suit to be taxed. Let judgment be entered accordingly.”

      S. Wesselius and W. Hubert Wood, for appellants.

      C. H. Gleason (A. Lowell, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). Some questions are raised as to the admissibility of evidence, but we find no prejudicial error in the rulings of the court. Aside from the testimony claimed to have been improperly admitted, the evidence uncontradicted and unimpeached is ample to sustain the findings of fact. In such case the judgment will not be disturbed by the appellate court.

Defendants sought to rely upon a tax title. When this suit was commenced no deed had been issued upon the tax sale. A deed was issued by the auditor general, just before the trial, to Edwin E. Uhl, who had held a certificate of sale for some years. Until the purchaser at a tax sale obtains a deed, no title passes to him. He cannot maintain an action to quiet his tax title, or set it up as a defense against the original owner. Cooley, Tax’n (1st Ed.), 352; Blackw. Tax Titles (5th Ed.), § 958; Black, Tax Titles (2d Ed.), §§ 312, 324, 412; People v. Hammond, 1 Doug. (Mich.) 276; Busch v. Nester, 62 Mich. 381; Irving v. Brownell, 11 Ill. 402; Hewitt v. Week, 59 Wis. 444. The quitclaim deed made by Uhl to Barnard January 13, 1890, operated only as an assignment of the tax certificate, and gave Barnard no greater right than Uhl had. Nitz v. Bolton, 71 Mich. 388. Mr. Uhl, at the time he bid the land in at the tax sale, was the solicitor for Mrs. Kerr in the foreclosure proceedings. Evidently he did this in the interest of his client, and there is no evidence to show that he claims the title. This purchase amounted to a redemption from the sale, and cannot be considered as an independent title. Richards v. Richards, 75 Mich. 408; Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584). Plaintiff had never parted with her dower right, and had done nothing to estop her to make the claim.

Judgment affirmed.

The other Justices concurred.