author: Mooke, C. J.

text:
    EPWORTH LEAGUE TRAINING ASSEMBLY v. OLNEY.
    1. Easements — Contracts—Construction.
    Complainant corporation was organized to establish a training school for members of the Epworth League, a young people’s society carried on in connection with the Methodist Church, as well as a summer school for young preachers, camp meetings, and other facilities for religious and educational work. For this purpose it entered into a contract with a development company for the conveyance of land, excepting therefrom a certain parcel designated on the accompanying map as “disputed land,” on which complainant was to have certain exclusive privileges largely essential to the success of its enterprise; the purpose of the exception being to provide a site for an electric plant. The development company knew that the surroundings and control of the grounds must be such as to meet the approval of, and exclude everything not acceptable to, the Methodist Church, and complainant immediately took possession and proceeded with the work. Held, that, in view of the conduct of the parties and the surrounding circumstances, as shown by the evidence, the interest conveyed in the disputed strip was not a mere revocable license, but a permanent easement in the, land.
    2. Deeds — Independent Instruments — Inclusion by Reference.
    Where a deed was made subject to the covenants and agree-merits in a certain recorded contract, which contained in great detail the obligations of the respective parties relating to the land to be conveyed, it was obviously the object to avoid reciting the provisions at length in the deed, and the provisions of the contract were by such reference made a part of the deed.
    Cross-appeals from Mason; McAlvay, J.
    Submitted October 8, 1903.
    (Docket No. 18.)
    Decided March 15, 1904.
    Bill by the Epworth League Training Assembly against E. Bert Olney, George B. Cartier, and the Citizens’ Development Company, to quiet title-. Erom the decree rendered, both parties appeal.
    Affirmed.

      Elvin Swarthout (John H. Grant, of counsel), for complainant.

      Dovel & Smith (M. B. Danaher, of counsel), for defendants.
   Mooke, C. J.

A reference to the map attached will help to understand the controversy.

The complainant corporation was organized under Act No. 39 of the Public Acts of 1889 for the purpose, among other things, as stated in its articles of association, “for the purchase and improvement of lands to be occupied for summer homes, for camp meetings, for meetings and assemblies of associations and societies organized for sci.entific or intellectual culture, and for the promotion of religion and morality.” The defendant appellants claim to be the owners of the land marked on the map as “disputed land.” Complainant claims it had permanent rights in the nature of an easement in the property, and that, because of the failure of the defendant the Citizens’ Development Company to act, complainant now has the title in fee to the disputed land, and this bill is filed for the purpose of settling the dispute. Erom a decree in favor of complainant as to part of its contention, two of the defend-

ants have brought the case here by appeal. The complainant has also filed a cross-appeal.

The case was heard in open court. The trial judge filed a written opinion, which states the questions involved as follows:

“ The dispute in this case is really a matter of the con-, struction of a certain contract and deed, taken in connection with the circumstances surrounding the organization of the complainant, and its location at what is now known as ‘ Epworth Heights,’ in Mason county, directly north of the city of Ludington.
“The Citizens’Development Company, one of the defendants to this suit, a corporation organized^ to promote the business interests of the city of Ludington, in 1893 began negotiations relative to the location of a Methodist camp-meeting ground near the city of Ludington, and offered inducements to those interested in such camp-meeting ground at Reed City, Michigan, to change the location of the same to Ludington. These negotiations developed the idea of the formation of the complainant assembly, and the officers of the development company were the persons actively engaged in and who really promoted such organization.
“ On May 4,1894, these negotiations ripened into a contract made between the complainant, the Citizens’ Development Company, and the Flint & Pere Marquette Railroad Company. ' This contract is of considerable length, but its principal features are that the complainant had become organized, and required certain lands and $21,000 in cash to properly establish itself; that the development company had certain lands which it would deed to the assembly, and would use its influence to procure $10,000 and certain lands from the city of Ludington (procuring necessary legislation therefor), would construct and maintain a street railway, and do certain other necessary things to establish the assembly at the place designated. The Flint & Pere Marquette Railroad Company, on its part, agreed to furnish $10,000 in cash, and give rates over its railroad and steamboat lines to those attending the assembly. The complainant agreed to accept the lands and invest the money in suitable buildings, and for the period of 15 years maintain annual meetings, furnishing a suitable program; it being the aim of the board of trustees to inaugurate work along the special lines of a training school for Epworth Leaguers, a school for evangelistic training, a summer school for young preachers, classes in elocution, lecture courses, and kindred lines of religious and educational work.
“Thelands described in this contract, which were to be conveyed by the Citizens’ Development Company to the complainant, are located upon Lake Michigan, and are south of the Lincoln river, which is the outlet from Lincoln Lake into Lake Michigan, and is a stream of considerable size. The following among other lands were to be conveyed by the development company to complainant:
“ ‘That part of lot 3, section 4, town 18 north, of range 18 west, lying south of the outlet of Lincoln Lake, excepting therefrom that parcel of land lying north of the line 1,000 feet south of and parallel to the east and west quarter line of said section 4, and west of a line 660 feet east of the north and south quarter line of said section 4, and parallel thereto; it being agreed that on this reservation the Epworth League Training Assembly may erect cottages, bath and boat houses, and shall have the exclusive right of all bo^it and landing privileges on the lake front and on the south side of the channel.'
“And in the contract it was provided as follows:
“ ‘ It is further mutually agreed that the said first party [development company] shall have the exclusive right to the water power from Lincoln Lake, and that the same may be used only at the present outlet of said lake; and, further, said first party shall have the right to erect the necessary poles and establish the necessary lines to convey the electricity they may generate by said water power through the said premises, and shall have a right of way across the premises herein conveyed to the aforesaid reservation until the erection of the proposed Charles-street bridge.
“ ‘It is also further agreed that the lands herein conveyed shall be used by said third party [Epworth Assembly] only for the purposes herein mentioned, and not for the establishment of any mercantile or other business, other than necessary to properly carry on such assembly and league work, during the life of this contract.’
“ Under this contract the parties proceeded, each on its part, to fulfill the terms thereof, and on the 22d day of May, 1894, the Citizens’ Development Company deeded to the complainant the lands mentioned and described in such contract, and in the body of said deed, immediately following such descriptions:
“‘This conveyance is made subject to the reservation of the right by said first party, or its successors or assigns, to rebuild and maintain, the dam at the outlet of said Lincoln Lake, and to hold the water of said Lincoln Lake at 12 inches above high-water mark. And this conveyance is made srrbject also to the covenants and agreements contained in a certain contract made between the Citizens’ Development Company and the Flint & Pere Marquette Railroad Company and the Epworth League Training Assembly, which said contract was entered into on the 4th day of May, A. D. 1894, and is to be found of record in Book 2, Miscellaneous Records of Mason county, Michigan, at page 285.’
“ The complainant the same year proceeded to develop its work, and, insisting later that the development company should fulfill its agreement relative to transportation of the members of the assembly and visitors to the grounds from Ludington to Epworth Heights, finally accepted, the steam railroad which was built by a corporation composed largely of the same persons who composed and managed the development company. The proof shows that this mode of transportation was accepted by all parties connected with the contract as a fulfillment of said contract relative to transportation. The complainant assembly, through its officers and agents, and with the assistance of the Flint & Pere Marquette Railroad Company, soon became widely known, and made a remarkable growth, and is now conducted successfully in all respects, according to the terms of its contract and under its articles of association ; being carried on for the purposes therein mentioned.
“ The defendant development company became largely involved in debt, and, not being able to discharge its obligations to its creditors, gave a mortgage in June, 1897, to Davis Olney, as trustee, securing, among other indebtedness, the sum of 11,000 due to the complainant from the development company, according to the terms of the contract above referred to. This mortgage was afterwards foreclosed on the petition of the complainant, and the property therein described was sold, and bid in by the complainant, with a decree for deficiency, upon which a large amount is unpaid, and which it will be impossible to collect, by reason of the insolvency of the development company, which has practically gone out of business.
“ On or about October 1,1900, said development company executed and delivered to defendants F. Bert Olney and George R. Cartier a quitclaim deed of certain lands, as follows:
“ ‘All its right, title, and interest in and to [among other lands] all that portion of lot 3 lying north of land heretofore sold to the Epworth League Training Assembly, section 4, town 18 north, of range 18 west.’
“The grantees in said deed immediately afterwards redeemed all of the other lands from such foreclosure sale, and, by virtue of such quitclaim deed, began to assert title and right to the exclusive possession of the piece of land on lot 3 heretofore mentioned and described, and which will hereinafter be designated as the disputed strip.
’ “ There is serious doubt whether this disputed strip was included in the mortgage referred to, given to Davis Olney. The description therein was, ‘ All that portion of lot 3 lying north of the Epworth League grounds in section 4. ’ The undisputed testimony of George N. Stray, who made the inventory of the property of the development company at the time this mortgage was made, shows that the disputed claim was not considered of any value whatever; and the undisputed testimony in the case is also to the effect that the complainant, from the time the contract was made up to the time of the quitclaim to Olney and Cartier, was in the undisputed possession of all of the lands up to the south shore of Lincoln river.
“Considerable testimony was taken in the case, and it appears to be established to the entire satisfaction of the court that those who represented the complainant at and before the time of entering into this contract, and at and after the deed was executed and. delivered, understood and insisted that the complainant had the entire and exclusive possession and control of all the lands deeded, up to the south bank of Lincoln river, including the disputed strip, and such possession and control of that to the exclusion of everybody except the development company, which' was to construct and maintain an electric power plant thereon. The disputed strip, with the river on the north, Lake Michigan on the west, and the land south and east absolutely deeded to the complainant, was in fact entirely cut off from all other lands owned by the development company.
“It is claimed on the part of these defendants, Olney and Cartier, that by their quitclaim deed from the development company they obtained the title in fee simple to this, disputed strip, and that such deed, and notice given by them to the members of the complainant who had built or were building cottages thereon, and also to the complainant assembly itself, terminated what they claim was a license to occupy such disputed strip. This case turns upon this contention.
‘ ‘ The complainant assembly is organized under a statute of this State, and, by its articles of association, at all times two-thirds of its trustees must be members of the Methodist Episcopal Church; and its aim, as in said contract stated, is to establish a training school for Epworth Leaguers, evangelists, a summer school for young preachers, and other religious and educational work. The Epworth League is the young people’s society of the Methodist Church, and is everywhere carried on in connection with it.
“In determining what the parties to this original contract and the deed intended, it is necessary to take into consideration all of the circumstances surrounding the transaction. It was well known to the development company that the members of the Methodist Church, in locating a camp-meeting ground, or a ground to be used for the purposes of an Epworth League Training Assembly, would require that its surroundings should be such as 'would be approved by the church and its membership generally, and also that such control of all of the grounds in which the assembly was to have any interest should be such as to exclude everything which would not be acceptable to the members of the Methodist Episcopal Church.
“ From the proofs taken in the case, it appears that this disputed strip was excepted in the description for the purpose of erecting thereon an electric power plant, to be operated by water power. It does not appear that any other intention was expressed by the development company at the time, and the representatives of the complainant swear positively in this case that this was the expressed understanding and agreement. It would seem that the privilege of erecting poles on that part of the land deeded outright, for the purpose of conveying the electric power, and also the privilege of going over these lands, and the right to raise the water in Lincoln Lake 12 inches above. high-water mark, can be intelligently understood if taken in connection with such understanding and agreement, but, without any such understanding and agreement, such statements in the writings between the parties are meaningless. The contract, in terms, states that on this reservation the complainant ‘may erect cottages, bath and boat houses, and shall have the exclusive right of all boat and landing privileges on the lake front and on the south side of the channel.’
“It is claimed on the part of the defendants that this amounts to a mere license, revocable at the option of the development company or its assigns. What interest in this disputed strip was created by this contract and embodied in the deed must be also determined from all the surroundings at the time. It is impossible to believe that the complainant accepted the right to build cottages, bath and boat houses, to the exclusive control of all boat and landing privileges on the lake front and on the south side of the channel, as a mere temporary affair, to be canceled at the whim of a new board of directors of the development company, or any persons to whom said company might make transfer of the title to the disputed strip. The court has personally examined these premises with reference to the location of the disputed strip and of the Epworth League Training Assembly grounds generally, and finds that, as has appeared in evidence on the part of the complainant, the river is the natural boundary of these premises on the north. It is a stream of considerable size and depth, and a most satisfactory place for boats, launches, etc., to be moored.
“ It is clear to the court that, from the proofs, the contract, and reference to it, as above stated, in the deed, the complainant received and accepted from the development company an indivisible right and interest in the disputed strip; that it was not intended by either of the parties to the contract and deed that amere license was created, and the conduct of the parties from the time possession was taken of the premises up to the time Olney and Cartier made claim under their quitclaim deed is opposed to any such conclusion.
“I therefore find that, by the contract to the complainant, a permanent and subsisting estate was created in the complainant to the disputed strip; that the title reserved in the development company and its assigns was subject to such estate, and was such title as would allow the erection and maintenance of the electric plant referred to, and for no other purpose.
“I find that the defendants Olney and Cartier, by actual knowledge of all the circumstances herein detailed, and by the established .rules of law, by their quitclaim deed took only such title as the development company had in such disputed strip, subject to all the rights, title, and interest of the complainant.”

The parts of the original contract referred to, necessary to recite here, read as follows:

Whereas, an association has been organized under and by virtue of the laws of Michigan (Act No. 39 of the Public Acts of Michigan of 1889) for the purpose of the purchase and improvement of lands to be occupied for summer homes, for camp meetings, for meetings and assemblies of associations and societies organized for scientific or intellectual culture, and for the promotion of religion and morality, which association has been organized at Ludington, Mason county, Michigan; and
“ Whereas, in order to inaugurate and maintain such an association, and to prepare suitable buildings, clear and ornament grounds, and adapt them to the proper uses of such an association, and to insure successful programs for such meetings and assemblies, it is estimated that certain lands and the sum of $21,000 in money will be necessary:
Therefore, this memorandum of agreement hereby made, and entered into by and between and on the part of the Citizens’ Development Company of Ludington, Michigan, party of the first part, the Flint & Pere Marquette Railroad Company, party of the second part, and the Epworth League Training Assembly of Ludington, Michigan, party of the third part, witnesseth:
“That said Citizens’ Development Company, party of the first part, in consideration of the premises and agreements herein made by said parties of the second and third parts, hereby agrees to deed by a good and sufficient warranty deed to said Epworth League Training Assembly, third party, granting unto it, or its successors, representatives, or assigns, the absolute title, subject only to the rights of reversion, all the following described lands, to wit:
“That part of lot 3, section 4, town 18 north, of range 18 west, lying south of the outlet of Lincoln Lake, excepting therefrom that parcel of land lying north of the line 1,000 feet south of and parallel to the east and west quarter line of said section 4, and west of .a line 660 feet east of the north and south quarter line of said section 4, and parallel thereto; it being agreed that on this reservation the Epworth League Training Assembly may erect cottages, bath and boat houses, and shall have the exclusive right of all boat and landing privileges on the lake front and on the south side of the channel. Also all of lot 4 of said section 4. * * * All said lands being in Mason county, Michigan. Together with all rights of flowage on all lands bordering on Lincoln lake and river, whether the above lands or others, intending to convey all such rights acquired by deed by said Citizens’ Development Company. * * *
“ Said first party further agrees that commencing with the opening of the season of 1894, and during the season of 1894 and for all time during the life of said Epworth League Training Assembly, they will establish, furnish, and maintain suitable conveyances to and from the depot and steamboat dock of the Flint & Pere Marquette Railroad Company to the grounds qf said third party, at the rate of not to exceed five cents fare each way; and that it will establish, construct, and operate a street railway, or procure the same to be established, constructed, and operated, from said depot and steamboat dock to the grounds of said third party, at the earliest possible time, and have the same in operation not later than July 1st, 1896. * * *
“The Epworth League Training Assembly, party of the third part hereto, in consideration of the foregoing premises and agreements made and to be performed by said first and second parties, hereby promises and agrees to accept the title of the real estate herein mentioned, and to receive the said moneys, and will invest and dispose of the said moneys in constructing and erecting suitable permanent buildings upon said lands, and will keep and maintain the same in suitable repairs, to be used and occupied for the uses and purposes in this contract stated; and that it will hold a meeting during the summer season each year for the period of fifteen years upon the premises hereinbefore mentioned and described, such meetings to be of not less than two weeks’ duration, and for as much longer time as in the judgment of the board of trustees of said third party it shall be deemed advisable.
“ Said third party hereby promises and agrees faithfully to perform on its part all the necessary labor and to devote such time in arranging for speakers and for holding conventions, concerts, assemblies, camp meetings, and other gatherings as from time to time may be obtained, and to manage and conduct the same; it being the aim of-the board of trustees of said third party to inaugurate work along the special lines of a training school for Epworth Leaguers, a school, for evangelistic training, a summer school for young preachers, 'classes in elocution, lecture courses, and kindred lines of religious and educational work.
“ Said third party agrees to subdivide its work in following out the lines herein indicated into proper committees; to formulate and adopt suitable rules and by-laws to govern the assembly and its details, acting under and in compliance with the State law under which said assembly is organized; that it will, through its members and board of trustees, do all in its power to encourage parties to lease lots or plats of ground on the lands of the said Epworth League Training Assembly, and to erect summer cottages thereon, and otherwise beautify and adorn the same, and that they will in all respects strive to make the Epworth League Training Assembly attractive and second to none as a delightful summer resort.
“It is further mutually agreed that the said first party shall have the exclusive right to the water power from Lincoln Lake, and that the same may be used-only at the present outlet of said lake; and, further, said first party shall have the right to erect the necessary poles and establish the necessary lines to convey the electricity they may generate by said water power through the said premises, and shall have a right of way across the premises herein conveyed to the aforesaid reservation until the erection of the proposed Charles-street bridge.
“It is also further agreed that the lands herein conveyed shall be used by said third party only for the purposes herein mentioned, and not for the establishment of any mercantile or other business, other than necessary to properly carry on such assembly and league work, during the life of this contract. * * *
‘ ‘ Signed, sealed, executed, and delivered in triplicate by the parties hereto this 4.th day of May, A. D. 1894.
“The Citizens’ Development Company,
“ Antoine E. Cartier, President.
“ O. Dunham, Secretary.
“The F. & P. M. R. R Co.,
“ W. H. Baldwin, Jr., Gen’l Mgr.
Epworth League Training Assembly,
“D. W. Parsons, Pres. Epr.
“Thomas Nicholson, Sec’y.”

The contract was recorded in Miscellaneous Records, on pages 285 and 289.

Later a deed was made, reading in part as follows:

'“This indenture, made this twenty-second day of May, in the year of our Lord one thousand eight hundred and ninety-four, between the Citizens’ Development Company, a corporation existing under the laws of the State of Michigan, and having its office at the city of Ludington, Michigan, party of the first part, and the Epworth League Training Assembly of Ludington, Michigan, parties of the second part, Witnesseth:
“That the said party of the first part, for and in consideration of the sum of one dollar and other valuable consideration to it in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and acknowledged, does by these presents grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, and unto their successors and assigns forever, the following parcels of land, to wit:
“ That part of lot 3 in section 4, town 18 north, of range 18 west, lying south of the outlet of Lincoln Lake, excepting therefrom that parcel of land lying north of the line 1,000 feet south of and parallel to the east and west quarter line of said section 4, and west of a line 660 feet east of and parallel to the north and south quarter line of said section 4; and all of,” etc.
“This conveyance is made subject to the reservation of the right by said first party, or its successors or assigns, to rebuild and maintain the dam at the outlet of said Lincoln Lake, and to hold the water of said Lincoln Labe at 12 inches above high-water mark.
“And this conveyance is made subject to the covenants and agreements contained in a certain contract made between the Citizens’ Development Company and the Flint & Pere Marquette Railroad Company and the Epworth League Training Assembly, which said contract was entered into on the 4th day of May, A. D. 1894, and is to be found of record in Book 2, Miscellaneous Records of Mason county, Michigan, at page 285.
“ 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 described, with the appurtenances, unto the parties of the second part, and to its. successors and assigns, forever,” etc.

The deed was duly signed, sealed, witnessed, acknowledged, and delivered.

Counsel for defendants contend:

“ The privilege given to complainant by the contract to build cottages and of landing boats on this land amounted to a license, and not to a permanent interest in real estate. The contract was not witnessed, acknowledged, or sealed. The language used in the clause upon which complainant relies does not import a grant or agreement to convey. The contract' is not a proper form of instrument by which to convey an interest in real estate.
“ The deed made in pursuance of the contract contained a clause, inserted after the description, that the conveyance was made subject to the covenants and agreements contained in the contract. This clause could not refer to the disputed land, which was not conveyed by the deed, but expressly excepted from the conveyance, and only mentioned in the deed for convenience in describing the land that was conveyed. This clause appears to have been intended to limit the warranty in the deed, since the contract limited the use of the land to the purposes of complainant corporation, and provided for the reversion in case of the failure of complainant.”

We think this contention is not maintainable. The deed itself is a very short paper. The original contract was a very long one. It contained not only provisions as to the right of complainant,to erect cottages, etc., on the disputed strip, but also provisions as to the raising from the citizens of Ludington of $10,000, and the payment of a like sum by the railroad company in installments, some of which were to be paid as late as July, 1896. It also provided for the maintenance of a line of transportation during the life of the complainant corporation from its grounds to the railroad depot and steamboat dock, with not to exceed a 5-cent fare, and also for the construction and operation of a street railway between those points. It also contained provisions for low rates of fare to the stockholders of complainant over the Flint & Pere Marquette Railroad line. It is very evident that to do away with the necessity of reciting these provisions at length in the .deed was the object of referring therein to the original contract, as was done, and that it was expected that by such reference the provisions of the contract were made part of the provisions of the deed. Such, we think, was its effect. Rorabacher v. Lee, 16 Mich. 169; Johnson v. Moore, 28 Mich. 3; Stuart v. Worden, 42 Mich. 154 (3 N. W. 876); Grieb v. Cole, 60 Mich. 397 (27 N. W. 579, 1 Am. St. Rep. 533); 17 Am. & Eng. Enc. Law (2d Ed.), pp. 9, 10.

It is contended that, as both the deed and the contract excepted this disputed land from the conveyance, the legal title remained in the Citizens’ Development Company, and that the privileges granted to complainant in said contract were of revocable license, which was revoked by the conveyance of the land to the defendants, and by the letters written by Cartier and Olney to complainant and to its lessees. If the interest of the complainant in the disputed strip were only that of a licensee, this contention could be sustained; but we think it is more, — that it is in the nature of a permanent easement. The language used in the contract is not very clear and certain, and it should be read in the light of all the circumstances surrounding the transaction. When so read, we think it warrants the conclusion of the trial judge, expressed as follows:

“From the proofs taken in the case, it appears that this disputed strip was excepted in the description for the purpose of erecting thereon an electric power plant, to be operated by water power. It does not appear that any other intention was expressed by the development company at the time, and the representatives of the complainant swear positively in this case that this was the expressed understanding and agreement. It would seem that .the privilege of erecting poles on that part of the land deeded outright, for the purpose of conveying the electric power, and also the privilege of going over these lands, and the right to raise the water in Lincoln Lake 12 inches above high-water mark, can be intelligently understood if taken in connection with such understanding and agreement, but, without any such understanding and agreement, such statements in the writings between the parties are meaningless. The contract, in terms, states that on this reservation the complainant ‘ may erect cottages, bath and boat houses, and shall have the exclusive right of all boat and landing privileges on the lake front and on the south side of the channel.’ * ^ *
“ It is impossible to believe that the complainant accepted the right to build cottages, bath and boat houses, and the right to the exclusive control of all boat and landing privileges on the lake front and on the south side of the channel, as a mere temporary affair, to be canceled at the whim of a new board of directors of the development company, or any persons to whom said company might make transfer of the title to the disputed strip. * * *
“ It is clear to the court that, from the proofs, the contract, and reference to it, as above stated, in the deed, the complainant received and accepted from the development company an indivisible right and interest in the disputed strip; that it was not intended by either of the parties to the contract and deed that a mere license was created, and the conduct of the parties from the time possession was taken of the premises up to the time Olney and Cartier made claim under their quitclaim deed is opposed to any such conclusion.”

As to the claim of complainant that the title in fee should be held to be in it, we agree with the trial judge that the record does not show such a state of affairs as would warrant at this time such a decree.

The decree of the court below is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    BROWN v. SMEDLEY.
    1. Bills and Notes — Transfer After Maturity — Defenses.
    In an action on a negotiable promissory note by a transferee after maturity, all defenses open as between the immediate parties are available.
    2. Same — Collateral Security — Consideration.
    A note given simply to be used as collateral security, the payee agreeing to take care of it, and that the maker should never hear of it again, is without consideration.
    3. Same — Failure of Consideration — Set-off—Parol Evidence.
    As against the payee of a promissory note, parol evidence is admissible to show a failure of consideration, or a valid set oh; and such, evidence is not objectionable as tending to vary the written contract evidenced by the note. Phelps v. Abbott, 114 Mich. 88, distinguished.
    Error to Wayne; Donovan, J.
    Submitted October 21, 1903.
    (Docket No. 59.)
    Decided March 15, 1904.

      Assumpsit by Edward C. Brown against John H. Smedley on a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      George P. Codd, for appellant.

      Harry Helfman (Alfred Lucking, of counsel), for appellee.
   Moore, C. J.

Plaintiff sued defendant upon a promissory note given by the defendant, dated December 29, 1896, payable to the order of George S. Davis three months after date. This note was indorsed by Mr. Davis. Two defenses were interposed: First, that of set-off for services rendered to Mr. Davis; and, second, failure of consideration. The case was tried before a jury, which rendered a verdict in favor of defendant. The case is brought here by writ of error.

Counsel insists the court erred in the following particulars: First, in its charge to the jury; second, in refusing to grant a new trial; third, in permitting certain immaterial and irrelevant testimony.

The testimony of Mr. Davis, given apparently with great reluctance, discloses the note did not pass from him to the plaintiff until long after it matured. Any defense which might be urged against Mr. Davis is available now.

The record discloses that, for some time prior to and at the time the note was given, Mr. Parke was president of Parke, Davis & Co., Mr. Davis vice-president, and Mr. Smedley treasurer. It is the claim of plaintiff that defendant and Mr. Davis had certain transactions between each other which resulted in defendant being in debt to Mr. Davis, and that for a portion of such indebtedness the note in controversy was given. The claim of defendant is stated by his counsel as follows:

“ 1. That he rendered Davis services.
“2. That the services were ‘outside of,’ ‘independent’ of, and distinct from Smedley’s employment at Parke, Davis & Co.’s.
“3. That the services were rendered at Davis’ request.
“ 4. That Davis promised to pay Smedley for those services.'”

Mr. Smedley and Mr. Davis are substantially agreed as to the first and third of these propositions, but Mr. Davis denies the truth of the second and fourth of them. According to both of the parties, for several years, during a portion of which time Mr. Davis was in California, Mr. Smedley raised money in his behalf, and, to aid him in doing so, 700 shares of stock, of the value of $35,000 was put in the name of Mr. Smedley by Mr. Davis. Mr. Smedley sometimes signed the notes personally and sometimes as indorser. Mr. Smedley drew the dividends on the stock. He paid interest on the amounts he had borrowed, and from time to time settlements were made. In the fall or early winter of 1896 — the parties are not agreed as to the exact time, Davis claiming it was December 29th, while Smedley says it was two or three months earlier— Smedley handed a statement to Davis, showing he. had borrowed for Davis, on paper coming due between October 17th and November 25th, $37,000; that during that time he had paid interest amounting to $332.65;- that he had received a dividend for the first half of the year, which was paid April 14th over to Mr. Davis, and that later he received, a dividend of $1,050, which was not paid over, leaving in his hands, after deducting the amount of interest-, $717.35.

It is the claim of Smedley that, when he rendered the services to Mr. Davis,- he expected to be paid therefor, though no amount had been fixed or charges made, and that Mr. Davis recognized his duty to pay. It is his further claim that, when the statement of the condition of the account above referred to was handed to Mr. Davis, Mr. Smedley, who was then building a house, said to him he would like to use this balance, and that Mr. Davis then gave .him the amount shown as a balance in recognition of his services. He further claims that, about two months later, Mr. Davis came to him and said he wanted to use two notes as collateral security, and that the note in suit and another were given to Mr. Davis, who said Mr. Smedley would never hear from the notes again.

Mr. Davis gives an entirely different version of the transaction. He admits Mr. Smedley rendered the service as stated by him, but says it was done during usual business hours, and without Mr. Smedley’s expecting to be paid, and without Mr. Davis expecting to pay for it. He denies that he gave Mr. Smedley the balance of the dividends, and denies that when the notes were given he told Mr. Smedley he wanted to use them as collateral, and Mr. Smedley would never hear from them again. He insists they were given for the amount represented by the balance due on the dividends. Both parties are agreed the notes were not presented to Mr. Smedley for four years after they were made. Mr. Davis says this was because he did not need the money, and did not want to irritate Mr. Smedley, while it is the claim of the latter that they were not presented because he was not expected to pay them. After the notes were presented, Mr. Smedley wrote a letter, which it is claimed is inconsistent with his present position, in relation to the writing of which he made to the jury his explanation. Without going further into detail as to testimony, it will be seen it could not well be more conflicting.

It is claimed that all of the testimony as to the business transactions between Mr. Smedley and Mr. Davis, and what was said at the time the notes were given, was improperly received, as tending to vary the written contract evidenced by the notes; counsel citing Hyde v. Tenwinkel, 26 Mich. 93; Kulenkamp v. Groff, 71 Mich. 675 (40 N. W. 57, 1 L. R. A. 594, 15 Am. St. Rep. 283); Atkin son v. Weidner, 79 Mich. 575 (44 N. W. 1042); and other authorities. A more recent case, not cited by counsel, where this doctrine is fully discussed, is the case of Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3). An examination of the cases cited will show a very different situation from the one involved here. In each of them there was a consideration upon which the note was based. In this case it is claimed the note was given without any consideration whatever. In the case of Kulenkamp v. Groff, supra, while the court held the parol testimony was not competent to vary, alter, or contradict the terms of the note, it also held it was admissible to show no consideration for the giving of the note. In Phelps v. Abbott, supra, it was said:

“ It is true that it is always competent to show by parol a total or partial failure of consideration, or that fraud or illegality taints the instrument. But the parol undertaking attempted to be showm in the present case does not fall within these apparent exceptions. It must be kept in mind that in this case the attempt is not to assert a set-off. Defendant’s claim, if any, was unliquidated. The defense was possible in this action only if the defendant could attach his alleged agreement to the note itself, and show that plaintiff had agreed to reduce the amount of the note by such a sum as should be found his due on the original transaction, if any. Nor was there a failure of consideration for the note. The attempt is to show that the promise which was made in writing is not in truth the promise which defendant made.”

—Clearly implying that a failure of consideration may be shown by parol, and that set-off may also be shown by parol. This we understand to be the doctrine established by a long line of cases. See Manistee Nat. Bank v. Seymour, 64 Mich. 59 (31 N. W. 140); Farwell v. Ensign, 66 Mich. 600 (33 N. W. 734); Shaw v. Stein, 79 Mich. 77 (44 N. W. 419); Macomb v. Wilkinson, 83 Mich. 486 (47 N. W. 336); Keidan v. Winegar, 95 Mich. 434 (54 N. W. 901, 20 L. R. A. 705); English v. Yore, 123 Mich. 702 (82 N. W. 659).

If it was a fact that defendant rendered services to Mr. Davis in the expectation on the part of both that he would be paid for them, and in recognition of this Mr. Davis gave to Mr. Smedley the balance as shown by the statement, and if it be a further fact that, when the notes were given, they were given simply to be used as collateral, and were not given for the balance as shown by the statement, Mr. Davis agreeing to take care of them, so ■ that Mr. Smedley should never hear of them again, then the notes were given without consideration. We think the testimony was competent as bearing upon these claims of defendant.

As to the charge of the court. There are some portions of it, standing separate and apart from the rest, that may be criticised; but, when taken in connection with the rest of the charge, we think it was a fair statement of the law applicable to the case.

Judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    BROWN v. SMEDLEY.
    Trial — Consolidation of Causes — Agreement of Counsel-Judgment.
    On the trial of the preceding case similarly entitled, plaintiff’s counsel remarked, “ The case following this is identical, and the testimony in this case, if there is no objection, we can agree will be the testimony in the next casewhereupon the court observed, “And the judgment in one be the judgment in the other,” and defendant’s counsel stated, “And the bond filed covers both cases.” Held, to justify the entry of a judgment in the second case similar to the one entered in the cause tried.
    Error to Wayne; Donovan, J.
    Submitted January 15, 1904.
    (Docket No. 49.)
    Decided March 15, 1904.

      Assumpsit by Edward O. Brown against John H. Smedley on a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      George P. Codd, for appellant.

      Harry Helfman {Alfred Lucking, of counsel), for appellee.
   Carpenter, J.

This case is like the preceding case between the same parties. After defendant had obtained a judgment in that case, the trial court entered a judgment for him in this case. The affirmance of that case leaves but one question to be considered in this, viz., Was it agreed that this suit should abide the result of the trial in the other case ? On the trial of the other case this occurred:

“Mr. Shepherd (counsel for plaintiff): I might say, in connection with this case, that the case following this [the case at bar] is identical. The testimony in this case, if there is no objection, we can agree will be the testimony in the next case.
The Court: And the judgment in one be the judgment in the other.
“Mr. Helfman (counsel for defendant): And the bond filed covers both cases.”

We think it is to be inferred from this quotation that counsel for both parties assented to the statement of the court that “the judgment in one [case] be the judgment in the other.”

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    UPTON v. GERBER.
    1. Ejectment — Infants—Homestead Interest — Parties—Abatement.
    In ejectment by an infant to recover his homestead interest in the estate of his deceased father, a plea in abatement of the pendency of a suit by the mother to recover her homestead rights therein, brought on behalf of herself and minor children, but to which plaintiff is not a party, cannot be sustained.
    2. Pleading — Abatement—Judgment—Writ of Error.
    An order sustaining a plea in abatement to, and quashing, one of the counts of a declaration, may be reviewed on writ of error after trial and final judgment on the remaining counts.
    3. Ejectment — Administrator’s Sale — Validity.
    Under 3 Comp. Laws, § 9129, providing that in an action relating to any estate sold by an administrator, in which an heir shall contest the validity of the sale, such sale shall not be avoided on account of any irregularity in the proceedings, if certain essential requirements, enumerated in the section, shall appear, held, in ejectment by an heir claiming a fee, that defendant’s possession under an administrator’s deed was a full protection, it appearing that the statutory requirements had been complied with.
    Error to Newaygo; Palmer, J.
    Submitted January 13, 1904.
    (Docket No. 26.)
    Decided March 15, 1904.
    Ejectment by William H. Upton, an infant, by Helen L. Upton, his next friend, against Joseph Gerber and others. Prom a judgment for defendants, plaintiff brings error.
    Reversed.

      E. L. Gray (M. Brown, of counsel), for appellant.

      Martin Bozema, for appellees.
   Hooker, J.

The plaintiff is a minor, and one of four heirs of his deceased father. He brings ejectment by his next friend, who is his mother, and who was also administratrix of his father’s estate. The defendant claims under an administratrix’s deed which he received from her upon a sale supposedly authorized by law under the direction of the probate court, and he relies upon his deed and possession under the same. The cause was tried before the court, and findings of fact and law were filed. They are as follows:

“ 1. That on the 18th day of April, 1894, Adonijah E. Upton was the owner in fee simple of the lands described in the declaration, subject to an incumbrance on which there was a balance due of about $2,200.
“ 2. On said day he died, leaving a widow and five children, one of whom (the plaintiff) was at that ‘time, and still is, a minor. At the time of his said death, and for a long time prior thereto, a part of said premises were occupied by said Upton and his said family as their homestead.
“3. Deceased died intestate, and his widow was appointed administratrix of his estate.
“4. Commissioners on claims were appointed, and claims amounting to $1,692.28 were allowed by them against the estate.
“ 5. On the 14th day of October, 1895, the said administratrix petitioned the probate court for said county for leave to sell the real estate belonging to said estate for the payment of said debts, the personal property being insufficient to pay them.
“ 6. After due notice of hearing given, and a hearing had, the said probate court on the 11th day of November, 1895, duly licensed said administratrix to sell said real estate for said purpose.
“7. Said probate court made an order in said matter exempting said administratrix from giving a bond on the sale-of said real estate.
“8. She took the oath prescribed by law before sale.
“9. The notice of the time and place of sale, as required by statute, was duly given.
“10. The premises were sold accordingly on the 25th day of April, 1896, to the defendant Joseph Gerber for the sum of $3,600.
“11. Said sale was duly confirmed by said probate court on the 27th day of April, 1896.
“ 12. A deed in the usual form was thereupon given by said administratrix to said Joseph Gerber.
“13. The said widow and children voluntarily moved off from said premises, and said Gerber took possession, and has remained in possession ever since. The other defendants are tenants under him.
“14. Said Joseph Gerber purchased said premises in good faith, and the purchase price was used to pay off said incumbrance, and the balance was applied to the payment of the amounts allowed by the commissioners on claims.
“ 15. This action was commenced by plaintiff by declaration, which contained three counts. By the first and third counts, he claimed title in fee simple to an undivided fourth interest in the whole of said premises, as one of the heirs at law of said deceased. In the second count he claimed his homestead right in part of said premises. To the first and third counts defendants pleaded the general issue, and to the second count a former suit pending was pleaded in abatement. On the 6th day of June last, an order was entered by this court sustaining the said plea in abatement, and quashing said second count. This judgment has not been appealed from, and has not been set aside or reversed.
“16. I therefore'find, as a conclusion of law, that the defendants are entitled to a judgment of no cause of action, with costs.”

The declaration was in three counts, two of which claimed an undivided fourth in fee, and the other a homestead interest. A notice of a former suit pending was filed as to the second, count, which claimed the homestead interest. This issue was heard, and the plea sustained. An order was entered quashing the count, and the court then proceeded to a trial of the case upon the other counts, which resulted in a judgment for the defendants in accordance with .the finding. The plaintiff has brought the case to this court by writ of error. He seeks to review the rulings upon the trial of both issues. Counsel for the defendants contends that the order quashing the second count is not reviewable, because not appealed from.

An examination of the record shows that a former action was begun against this defendant by Helen L. Upton to recover the possession of the homestead on behalf of herself and her children, including this minor plaintiff. The question was heard in this court, and decided against her claim, on a bill to restrain said action. See Gerber v. Upton, 123 Mich. 605 (82 N. W. 363). But the homestead right of the children was sustained. We find nothing in the record tending to show, that the original ejectment suit is not pending, and, if that-suit is one in which this plaintiff’s rights can be adjudicated so as to bind him, the judgment of the court upon that question was right. The record shows none of the pleadings or proceedings in the ejectment case, except the declaration, and that shows Helen L. Upton to be the only party plaintiff, though she claims the right to possession on behalf of herself and her infant children, whose ages are not given, and it does not allege that she is their guardian. The plaintiff is not a party to that action, nor was he to the chancery case which grew out of it. He would not have been bound by a decision in favor of the defendant, and so it cannot be said that this suit upon his behalf can be abated by reason of a suit by the mother to recover her homestead rights. All of the evidence upon the hearing is before us, and we are of the opinion that the second count should not have been quashed. This is involved in the judgment, and the question was properly brought here by the writ of error. This is not a case where a plea has been overruled, and the question waived by pleading over. In such a case the defendant should stand on his plea, and after judgment bring error, if he wishes to review the question. See Griffin v. Wattles, 119 Mich. 346 (78 N. W. 122). Here the plea was sustained, and the plaintiff was precluded from prosecuting the homestead claim. He waited until final judgment was entered, and took his writ of error, which was a proper practice.

We have already seen that the cpurt sustained the plaintiff’s homestead rights in the equity case. The defendants’ counsel concedes that he would have been entitled to recover had the count not been quashed. It follows that the judgment must be reversed, and the cause remanded, with directions to reinstate the second count.

The plaintiff’s claim upon the other branch of the case cannot be sustained. The defendant is in possession under an administrator’s deed, which is a full protection in this case, under 3 Comp. Laws, § 9129, and note. See Norman v. Olney, 64 Mich. 554 (31 N. W. 555).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    LYON v. HYLER. LYON v. PEACOCK.
    1. Deeds — Estate of Inheritance — Common Law.
    Prior to the statute of 1881 (3 Comp. Laws, § 9016), the word “heirs,” or its equivalent, was essential in a deed to pass an estate of inheritance.
    2. Same — Recitals—Construction—Lost Deed.
    The original owner of land, in 1847, executed an instrument to W\, reciting that "whereas in 1843 I executed to L. a deed of” said land, “and whereas the said L. thereafter deeded the same land to W., which deed is on record, and whereas my said deed to L. has not been recorded, and is” lost, “I do hereby quitclaim unto said W. all my right, title, and interest ” in said land, “ either in law or equity.” In an action of ejectment by the heir of the original owner, claiming that the instrument of 1847 lacked words of inheritance, and did not convey a fee, held, that defendants, who claimed under W., were not compelled to rely upon the words of grant in the instrument of 1847, but it was to be inferred that the prior deed of 1843, which the original owner therein admitted having executed, conveyed the same title as was conveyed by the deed executed by his grantee (L,), which was a conveyance in fee.

      Error to Clinton; Stone, J.
    Submitted March 1, 1904.
    (Docket Nos. 125, 126.)
    Decided March 15, 1904.
    Separate actions of ejectment by Henry O. Lyon against Mitchell Hyler and wife, and against William M. Peacock and wife. Prom judgments for defendants, plaintiff brings error.
    Affirmed.

      O. G. Tuttle and Lyon & Moinet, for appellant.

      H. E. & E. L. Walbridge, for appellees Hyler.

      Charles E. Hammond, for appellees Peacock.
   Montgomery, J.

Each of these cases is an action in ejectment for the recovery of a parcel of land in De Witt township, Clinton county. The facts are the same in both. The cases were tried by the court without a jury, and findings of fact and conclusions of law were made by the trial judge.

From the findings of fact, it appears that the land was purchased from the government by Orville H. Lyon on January 24, 1842. Three years later, June 25, 1845, one Alvah P. Lyon and wife deeded the land to Alanson Worden by a deed conveying the title in fee. On March 20, 1847, Orville H. Lyon, the purchaser from the government, executed to Alanson Worden, the grantee in the deed from Alvah P. Lyon, an instrument as follows:

Whereas, some time in the year 1843 I executed to Alvah P. Lyon a deed of the southeast quarter of the southeast quarter of section twenty-eight, and the southwest quarter of the southwest quarter of section twenty-seven, all in township five north, of range two west, in the State of Michigan; and
Whereas, the said Alvah P. Lyon some time thereafter deeded the same land to Alanson Worden, which deed is on record in the county of Clinton; and
Whereas, my said deed to Alvah P. Lyon has not been recorded, and is so lost or mislaid that it cannot be found:
“Now, therefore, in consideration of the foregoing circumstances, and in consideration of one dollar to me in hand paid, I do hereby quitclaim unto the said Alanson Worden all my right, title, and interest, either in law or equity, to the above-described premises.”

Afterwards Alanson Worden conveyed the land in fee to the defendants, who, at the time the suit was begun, were in possession, claiming title and ownership. The plaintiff claimed title to the land by inheritance from Orville H. Lyon, who died in 1890.

It is plaintiff’s contention that Orville H. Lyon, having never conveyed the fee in the lands, died seised thereof. To reach this conclusion it is urged that the instrument, of March 20, 1847, executed to Alanson Worden, lacking words of inheritance, conveyed a life estate only. It is also urged that the recital in the deed to Worden of the deed which Orville H. Lyón is said to have executed to Alvah P. Lyon is insufficient to show that it conveyed the title in fee, since it did not use the word “heirs.”

It is, without doubt, true that, at the date of the instruments in question, the word “heirs,”or its equivalent, was essential to pass.an estate of inheritance. 1 Washb. Real Prop. *p. 66. This rule was abrogated by statute in 1881. 3 Comp. Laws, § 9016. But, as all these instruments antedate the statute, the case must be determined upon the common law. The question is, therefore, as to the admissions contained in the instrument of 1847. These admissions must be construed with reference to the situation of the parties. It appears that a deed in some form had been executed by Orville H. Lyon to Alvah P. Lyon in 1843. The form is not stated in the recital. Whether it was a conveyance in fee, or of a life estate only, is not, in terms, stated. But this recitation is followed by another, which is that the same land was conveyed by Alvah P. Lyon to Alanson Worden by a deed which is of record. When we turn to that deed, we find that what Alvah P. Lyon purported to convey was a fee. What is the fair inference of fact, then ? Is it not that the same interest was conveyed to Alvah P. Lyon that he assumed to convey to Worden ? The question really is, What was the lost deed, — a conveyance in fee or a conveyance of a life estate ? This is a question of evidence, and the evidence is the written acknowledgment of the grantor. The construction of his admissions need not necessarily be technical. And when we find the statement that he has deeded the land, coupled with the reference to the deed from Alvah P. Lyon to Alanson Worden of the fee, the inference is, we think, clear that the deed from Orville H. Lyon to Alvah P. was likewise in fee. As to the effect of recitations in deeds, see Denn v. Cornell, 3 Johns. Cas. 174.

It should not be supposed that defendants are compelled to rely upon the words of grant contained in the instrument of 1847. Indeed, according to the recitation, in any view which is taken, Orville H. Lyon had not then an estate to grant such as this instrument, under any construction, purported to convey. Title to some interest in the land had passed to Alvah P., and whatever title had so passed was not divested by his quitclaim. It is significant, also, that, if but a life estate was granted in the first deed, a deed to supply its loss would naturally have been a deed to Alanson Worden for the life of Alvah P. Lyon. Clearly the deed was not this, and this is strong evidence that the former deed was a deed in fee.

We think the conclusion reached by the circuit judge was correct, and the judgment is affirmed in each case, with costs.

The other Justices concurred.


text:
    PEOPLE v. KRIESEL.
    1. Intoxicating Liquors — Holidays—Open Saloon — Labor Day —Construction op Statute.
    Under 3 Comp Laws, § 5395, requiring saloons to be kept closed on legal holidays, Labor Day is a legal holiday, though made such after the enactment of the section; the statute applying not only to legal holidays existing at the time of its enactment, but to those thereafter created.
    3. Same — Intent—Acts op Ehployé.
    A saloonkeeper must, at his peril, keep his saloon closed on a . legal holiday, and, in a prosecution against him for a violation of the statute, his intent is immaterial, and he is properly convicted, notwithstanding it is shown that the saloon was opened by his barkeeper, without his knowledge, and in disregard of his express instructions.
    3. Same — Instructions—Abstract Question — Harmless Error. An instruction to the jury in such case that if the barkeeper went in simply to fasten the door, and did not drink or sell drinks, it was their duty to convict, is, whether correct or ■ otherwise, an abstract question, and not reversible error, in the absence of evidence to justify the jury in finding the fact.
    Exceptions before judgment from Cass; Carr, J.
    Submitted February 26, 1904.
    (Docket No. 114.)
    Decided March 15, 1904.
    August Kriesel was convicted of keeping his saloon open on a legal holiday.
    Affirmed.

      Coy W. Henclryx, for appellant.

      Charles A. Blair, Attorney General, and George M. Fields, Prosecuting Attorney, for the people.
   Carpenter, J.

The information in this case charged that respondent, £ £ being a keeper of a saloon * * * where malt, spirituous, and intoxicating liquors are kept to be sold at retail, did, on the 7th day of September, A. D. 1903, said 7th day of September, 1903, being a legal holiday, commonly called ‘ Labor Day,’ keep the said place where said malt, spirituous, and intoxicating liquors are kept as aforesaid open, and did not keep the said place of business closed, as required by section 5395 of the Compiled Laws of 1897.” The trial resulted in respondent’s conviction. We are asked to set aside that conviction.

It is argued that Labor Day is not a holiday within the meaning of section 5395, because that section became law in 1887, while Labor Day did not become a legal holiday until 1893. Section 5395 required the saloon of respondent to “ be closed * * * on all legal holidays.” No argument is necessary to prove that the legislature intended this statute to apply not only to the holidays then existing, but to those thereafter to be created; and it is likewise apparent that when Labor Day was made a holiday, in 1893, the legislature intended that it should be one of the holidays mentioned in section 5395. Is there any objection to giving effect to this legislative intention ? We quote from the opinion of Bovill, C. J., in Queen v. Smith, L. R. 1 Crown Cas. Res., at pages 270 and 271:

“The subject of extending statutes by inference,to include cases not originally contemplated is one which has given rise to several decisions, the leading characteristic of which is that the earlier statute deals with a genus within which a new species is brought by a subsequent act. Thus, choses in action were not originally within 13 Eliz. chap. 5, against fraudulent conveyance, that statute being applicable only to property which could be taken in execution (Sims v. Thomas, 12 Adol. & El. 536); but as to choses in action made subject to execution by 1 & 2 Viet. chap. 110, there can be no doubt that by the conjoint operation of that act and the 13 Eliz. chap. 5, such choses in action, having become, by new enactment, a species of the genus property subject to execution, did, without any express enactment to that effect in the later statute, become subject to the operation of the former act. Norcutt v. Dodd, Cr. & Phill. 100; Barrack v. McCulloch, 3 K. & J. 110.”

Mr. Bishop, in his work on Statutory Crimes, § 128, says:

“Where the harmony of the law requires, one statute will be construed as lengthening out — that is, extending the effect of — another. Thus, when clergy was allowed, if a statute took it away from offenses of a designated class, all subsequently enacted offenses within such class were held to be excluded (1 East, P. C. 136; Foster, Crown Law, 190); the earlier statute, by construction, enlarging the later into the forbidding of clergy to the offender.”

In State v. Hays, 78 Mo. 600, it was held that a statute providing for the punishment of public officers embezzling public funds was applicable to officials whose offices were created after the statute became law; the court saying:

“This statute was necessarily prospective in its operation. It applied by its terms to the then existing officers of the State, of whatever grade, so that they only came into official being ‘ by virtue of the constitution of this State, or any law thereof.’ As a corollary to this, it would apply to any officer thereafter created, provided only that he be ‘ appointed or elected by virtue of the constitution or any law thereof.’ ”

In State v. Kidd, 74 Ind. 554, defendant was convicted of an unlawful sale of intoxicating liquor on the day of a municipal election. The information was based on an act passed in 1877 (Acts 1877, chap. 51) making it unlawful to sell liquor “upon the day of any State, county, township, primary, or municipal election.” The act authorizing the municipal election in question was passed in 1879. Acts 1879, chap. 17. The conviction was affirmed, the court saying:

“ It may be noted that the law authorizing the holding of such an election was not enacted until two years after the passage of the law under which the prosecution was instituted, and on this fact it may have been held that the law defining the offense should be construed to include only such election days as were then known to the law, and that the act providing for new elections could not enlarge the scope of a criminal statute theretofore enacted. This argument, if admitted, proves too much. The times for holding elections have been, and doubtless will be, frequently changed, but it has not been deemed necessary on that account to change or re-enact the penal or criminál statutes which relate thereto. The general terms of these statutes are such as to preserve their force and applicability, notwithstanding the changes made in other laws. The language of the law under consideration is as general and comprehensive as it could well have been made, and may as well apply to elections since provided for as to those which were authorized by the laws existing at the time of its passage.”

In Nations v. State, 64 Ark. 467 (43 S. W. 396), it was held that a statute punishing adultery between persons who are prohibited from marrying extended to first cousins, though they were prohibited from marrying by a law passed after the statute which defined and created the crime.

Our attention is called by respondent to many ca^es which hold that a particular law does not extend to a thing not in being at the time of its passage, nor to things created and defined by subsequent statutes. Nearly all these cases are so unlike the case under consideration that they need no discussion whatever. To illustrate this, we refer to one of those cases,—Queen v. Smith, L. R. 1 Crown Cas. Res. 266. There respondent was indicted under a statute making it a felony to “ receive any chattel * * * the stealing or taking * * * whereof shall amount to a felony either at common law or by virtue of this act, knowing the same to have been feloniously stolen or taken.” The offense charged against respondent was not a felony either at common law or by virtue of that act, but became such by a subsequent act. It was held that the conviction could not be sustained; the court saying, however:

“ If 24 & 25 Viet. chap. 96, § 91 [the law creating the offense in question], is to be read as a general enactment that for the future any person receiving goods stolen, with a guilty knowledge that they were stolen, should be liable to be indicted for felony as a receiver, the subsequent statute having introduced a new species of larceny, it might have been contended that the general provision as to receiving, in the former statute, was by inference extended to the new species of larceny.”

The only authority cited by respondent which we think needs distinguishing from those heretofore referred to is a reference made in the opinion in Queen v. Smith, supra, to Foster’s Crown Law, pp. 372, 373, where it said:

“ In the case of horse stealing, it is true, the statute of Elizabeth hath taken away clergy as well from the accessary after as before the fact; but it must be observed that this statute extendeth only to such persons as were, in judgment of law, accessaries at the time the act was made, namely, accessaries at common law, — not to such as are made accessaries by subsequent statutes. And therefore a person knowingly receiving a stolen horse, who is made an accessary by some late statute, is not ousted. This was agreed by all the judges at a conference in Easter term in the second of Queen Anne,”—citing a manuscript opinion in Tracy v. Denton.

Of course, we have not access to the opinion referred to, but it is apparent from this statement of it that the opinion proceeded upon the assumption, as stated in the above quotation, that “ the statute extendeth only to such persons as were, in judgment of law, accessaries at the time the act1 was made.” This proves that that decision has no application to this case and to the decisions above cited, for this statute was clearly intended tp extend to the holidays subsequently created, as well as to those existing at the time the statute was passed. We conclude, therefore, that Labor Day is a legal holiday within the meaning, of section 5395.

The evidence of respondent tended to prove that he personally was not responsible for his saloon being open on Labor Day. He had instructed his barkeeper not to open it, but his barkeeper, disregarding those instructions, did open it about 4 p. m. on Labor Day. It is contended that, inasmuch as respondent was not personally responsible for his saloon being open, and being himself innocent of any guilty intent, the conviction cannot be sustained. We think People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270), People v. Blake, 52 Mich. 566 (18 N. W. 360), and People v. Talbot, 120 Mich. 486 (79 N. W. 688), fully answer this contention.

At the conclusion of the charge of the court, one of the jurors asked the court, if the barkeeper went in simply to fasten the door, and did not drink or sell drink, whether it would be their duty to convict. The court answered “Yes.” To this, error is assigned, and we are asked to reverse the case on the ground that this was an improper direction. There was no testimony in the case, as shown by the record before us, which we must presume to be correct, justifying the jury in finding that the barkeeper went in there to fasten the door. This was a mere abstract question, and, if incorrectly answered, — which we do not determine, — would not justify a reversal.

The conviction will be affirmed.

The other Justices concurred.


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    PALMER v. BRAY.

    1. Fraudulent Conveyances — Homestead—Equity op Redemption.
    Where the equity of redemption in a homestead is not. worth more than $1,500, its conveyance is not fraudulent as to creditors of the grantor.
    3. Mortgages — Consideration—Privity—Equity.
    The owner of land gave a mortgage thereon to his children and sister-in-law for the amount of an indebtedness to the latter, the interest being payable to her for life, and the principal to the children. On objections thereto by complainant, representing the creditors of the mortgagor, on the ground of a want of privity between the mortgagor and the children, held, that the children were parties to the contract, although the consideration moved from another; that the mortgage was a valid lien in any event, as the sister-in-law could enforce it; and, further, that, in a court of equity, a person for whose benefit a promise is made may enforce it in his own name.
    3. Same — Foreclosure— Redemption — Rights oe Creditors.
    The mortgagor subsequently conveyed the equity of redemption, and the sister-in-law foreclosed for default in payment of interest. Held, that complainant was not entitled to redeem merely by paying the amount secured to the sister-in-law, disregarding the titles of the mortgagor’s children and the grantee of the equity of redemption, and had no right whatever to redeem unless the conveyance of the equity of redemption was fraudulent.
    4. Homestead — Owner’s Rights.
    Where one’s interest in property occupied as a homestead is worth less than $1,500, he has a right to occupy it, or to dispose of it as he pleases; and creditors have no right to take it from him, even though they offer to pay him $1,500 for his interest.
    Appeal from Washtenaw; Kinne, J.
    Submitted February 5, 1904.
    (Docket No. 92.)
    Decided March 15, 1904.
    Bill by George Palmer, administrator of the estate of Samuel P. Bray, deceased, against Clarence E. Bray, individually and as executor of the last will and testament of Betsey Doolittle, deceased, and others, to set aside a deed and to redeem from a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Thompson & Harriman, for complainant.

      John P. Kirk and Darwin C. Griffen, for defendants.

      Rehearing denied June 18, 1904.

   Carpenter, J.

This is a suit in equity to set aside a conveyance made by said Samuel P. Bray in his lifetime, on the ground that such conveyance was a fraud on creditors of the grantor. While there is some conflict in the testimony, the material facts are as follows: The land in controversy consists of 62-|- acres, situated in the county of Washtenaw. It was the homestead of said Samuel P. Bray from 1867, or earlier, until said conveyance was made, in 1897. In 1867 said Bray and wife gave Betsey Doolittle, the sister of his wife, a mortgage on said land, securing the payment of '$2,000. While there is some conflict in the testimony, we have no doubt that this $2,000' secured by the mortgage was a bona fide indebtedness. In 1893 this mortgage was discharged, and a new mortgage for $2,500 (the amount of the former mortgage and accrued interest) substituted. In this new mortgage Betsey Doolittle and the children of Samuel P. Bray — defendants in this suit — were the mortgagees. The interest was payable to Betsey for life, then to her sister, Mrs. Bray; and the principal was payable to the defendants, Bray’s children. In 1897 said Samuel P. Bray transferred his personal property to said Betsey Doolittle in payment of accrued interest on said mortgage, and at the same time conveyed to his son, defendant Bert H. Bray, his equity in the mortgaged land. Samuel P. Bray died December 23, 1897. Betsey Doolittle, by proceedings in chancery, wherein the defendants in this suit were defendants, foreclosed said mortgage for default of interest in 1901. She purchased at said foreclosure sale, and died testate in 1903. Her will devised the property to defendants. The object of this suit is to set aside the conveyance of the land to Bert H. Bray, and to redeem from said mortgage foreclosure.

It is obvious that this bill cannot be maintained unless the conveyance of the equity of redemption was fraudulent as to the creditors of Samuel P. Bray. The land transferred was worth less than $3,500. If the mortgage thereon was a valid lien to the amount of $2,500, the equity transferred was worth less than $1,000. In this view the interest transferred to Bert H. Bray was only a homestead interest, and creditors have no right to complain. Nash v. Geraghty, 105 Mich. 382 (63 N. W. 437).

Complainant contends that the mortgage was not a valid lien for $2,500. He contends that the indebtedness secured was only $700. This contention is disposed of by our concluding, as already indicated, that'the indebtedness did in fact amount to $2,500.

Complainant contends that, so far as the mortgage secured money to be paid to the mortgagor’s children, it was void, because there was no privity between them and the mortgagor. In support of this contention complainant relies upon Pipp v. Reynolds, 20 Mich. 88, in which it was decided that a contract could not be enforced at law by one who was not a party to the contract; and other Michigan cases which announce the same principle. See Turner v. McCarty, 22 Mich. 265; Hicks v. McGarry, 38 Mich. 667; Hunt v. Strew, 39 Mich. 368; Hidden v. Chappel, 48 Mich. 527 (12 N. W. 687); Edwards v. Clement, 81 Mich. 513 (45 N. W. 1107); Linneman v. Morass’ Estate, 98 Mich. 178 (57 N. W. 103, 39 Am. St. Rep. 528). That principle has no application to this case, for several reasons. In this case, though the consideration (which was entirely adequate ) was furnished by Betsey Doolittle, the mortgagor’s promise to pay the principal was made to his children. They were not, therefore, strangers to the contract. On the contrary, they were parties to the contract. The cases relied on are not authority for the proposition that one may not enforce at law a promise made directly to himself on a consideration furnished by a third person, and it has been distinctly held that he may. See Clark v. Clark, 134 Mich. 602 (96 N. W. 924); Rorabacher v. Lee, 16 Mich. 169. If it were true that the mortgagor’s children could not enforce the mortgage because the promise was made to Betsey Doolittle, their aunt, and not to them, she could enforce it, and it would be none the less a valid lien for the indebtedness secured. Moreover, the principle of those cases is confined to actions at law. It has been repeatedly held by this court that in a suit in ’equity a person for whose benefit a promise is made may enforce it in his own name. See Corning v. Burton, 102 Mich., at page 95 (62 N. W. 1040).

Complainant also contends that the deed of Samuel P. Bray to defendant Bert H. Bray was void because it was never delivered. It is a sufficient answer to this contention to say that the testimony convinces us that it was delivered.

Complainant claims that the foreclosure of the Betsey Doolittle mortgage terminated the title of Bert H. Bray, acquired by the conveyance in question, and the title of all the defendants, acquired by the $2,500 mortgage under consideration; and he claims, as we understand his oral argument, a right, in redeeming from said mortgage foreclosure, to disregard these titles, and to acquire the property by the payment of the amount secured to Betsey Doolittle by the mortgage. The recent case of Walsh v. Robinson, 135 Mich. 16 (97 N. W. 55, 99 N. W. 282), is opposed to this claim. It may also be said that complainant has no right whatever to redeem unless the deed to defendant Bert H. Bray was void as to creditors; and, as we have already indicated, it was not void as to them.

Complainant argues that, though the aggregate of the mortgage and homestead interest exceeds the value of the property, he, as the representative of the creditors, has a right to obtain the property on a payment of this aggregate. In other words, he contends that he has a right in this instance to pay, if he chooses, $4,000 for property worth $3,500. If any such abstract right existed, it can scarcely be expected that a court of equity would assist a trustee, like complainant, in a project to thus waste trust funds. But it is not true that any such abstract right does exist. When one’s interest in property occupied as a’ homestead is worth less than $1,500, he has a right to occupy that property, to dispose of it as he chooses, and creditors have no right to take it from him. See Nash v. Geraghty, 105 Mich. 382 (63 N. W. 437); Burkhardt v. James Walker & Son, 132 Mich. 93 (92 N. W. 778). And it follows that they have not that right, even though they offer to pay him $1,500 for his interest.

It results from these views that” the decree appealed from must be affirmed, with costs.

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


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    SEITZ v. STARKS.
    1. Garnishment — Sale—Parties—Question eor Jury.
    Plaintiffs in garnishment claimed that the garnishee defendants had purchased a stock of goods from plaintiffs’ debtors; but the garnishees claimed that the goods were sold to a creditor of the debtors in payment of a debt, that defendants bought of the creditor, and that the evidence was so far conclusive in these respects that a verdict should have been directed in their favor. . Held, on examination of the testimony, that it tended to show the relation of vendor and vendee between the debtors and defendants, and that the ' question was for the jury.
    3. Same — Circumstantial Evidence — Unsigned Contract.
    The creditor’s bookkeeper, under its direction (as claimed by plaintiffs), drew a contract of sale from the debtors to defendants, and delivered the same in duplicate to defendants, who retained them until after the commencement of the garnishee proceedings, when they were given to the creditor unsigned, and afterwards different writings were executed by the debtors. Held, that the contract was admissible in evidence as a circumstance, although defendants claimed that it was erroneously drawn, and that the bookkeeper was without instructions so to draw it.
    3. Same — Double Liability — Similar Facts — Presumption.
    A recovery by plaintiffs could not be defeated on the ground that, in a subsequent action by the creditor, another jury might take a different view of the testimony, and defendants be compelled to pay twice, since it would be presumed that, on proof of the same facts, both juries would reach the same conclusion.

      4. Same — Debtor’s Statement — Conspiracy—Admissions.
    A statement of one of the debtors to plaintiffs, that they had sold ont to defendants, was erroneously admitted, since, considered as evidence tending to show fraud, under plaintiffs’ claim that the debtors and defendants were in conspiracy to thwart them in the collection of their debt, it was at best a declaration of a co-conspirator, not made in the prosecution of the fraudulent enterprise; and, considered as an admission, it was not binding on defendants, as the defense was being made by them in their own interest, and to avoid a double liability.
    5. Same — Instructions.
    A requested instruction that the fact that the garnishees may have supposed, at some time during the negotiations, that they were getting the goods of the debtors, was immaterial, if the jury should believe from the evidence that the sale was actually made by the debtors to their creditor, was erroneously refused.
    6. Same.
    An instruction that if the written instrument prepared under the direction of the creditor represented the intention of the parties, and the inventory was taken in pursuance of it, it was a valid contract, regardless of its not being signed, was likely to be misconstrued by the jury, and should not have been given.
    7. Same — Exempt Property — Personal Defense.
    A garnishee cannot raise the point that the fund is not subject to garnishment because the proceeds of exempt property; such defense being personal to the debtor.
    Error to Berrien; Coolidge, J.
    Submitted February 4, 1904.
    (Docket No. 128.)
    Decided March 15, 1904.
    Garnishment proceedings by William H. Seitz and Eugene O. Roniger, copartners as Seitz & Roniger, against Levi Starks and William Abel, copartners as Starks & Abel, as garnishees of Joseph, George, and Charles Edgcumbe, copartners as Edgcumbe & Sons. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      G. M. Valentine, for appellants.

      Humphrey 8. Gray (A. C. Fyfe, of counsel), for appellees.
   Hooker, J.

The plaintiffs were creditors of Edgcumbe & Sons, retail grocers at Benton Harbor, as also were Kidd, Dater & Price Co. Starks & Abel, the garnishee' defendants, were at that time — i. e., September, 1903— fitting up a building with the intention of commencing the retail grocery business. They bought the Edgcumbe stock, or a portion of it, and continued the business in their store for about a month before moving into their own building. As soon as the inventory was completed, the plaintiffs sued Edgcumbe & Sons, and garnished Starks & Abel. It is the claim of Starks & Ahel and Kidd, Dater & Price Co. that the latter firm purchased the stock from Edgcumbe & Sons under an agreement that the price should be applied upon their claim, and that the defendants, Starks & Abel, purchased a portion of the goods from Kidd, Dater & Price Co.; while the plaintiffs allege that the transaction was collusive, and that Starks & Abel really purchased from Edgcumbe & Sons, and became their debtors. The question was submitted to a jury, and plaintiffs prevailed. The defendants have brought the case to this court.

Counsel for the defendants contends that all of the witnesses in a position to know have testified that defendants purchased the goods from Kidd, Dater & Price Co., and are indebted to them for the same; that they never had any dealings or negotiations with Edgcumbe & Sons; and that the court erred in not instructing the jury that they must find a verdict for the defendants. He also argues that the evidence shows that Edgcumbe & Sons owed Kidd, Dater & Price Co., and that a promise to pay them, even though defendants purchased from Edgcumbe & Sons, would be a valid novation, if it was with the assent of all of the parties, and accompanied by a release of said indebtedness against Edgcumbe & Sons.

Our examination of the testimony convinces us that there is testimony tending to show that Edgcumbe & Sons and the defendants sustained the relation of vendor and vendee. It is not necessary for us to approve the finding of the jury upon the question of fact. The plaintiffs showed statements by both defendants to the effect that they so understood it, and conversations in which they were informed of plaintiffs’ intention to garnish; and one, if notboth, of them abstained from making objection thereto. It was also shown, that, acting under direction of Kidd, Dater & Price Co., the latter’s bookkeeper drew a contract whereby Edgcumbe & Sons sold the stock to defendants, and delivered the same in duplicate to defendants, who kept them until after the garnishee proceedings were commenced, when they were given to Kidd, Dater & Price Co. without being signed, and afterwards different writings were executed by Edgcumbe & Sons. It is claimed that this contract was erroneously drawn, and that the bookkeeper had no instructions to so draw it; but it was a circumstance allowed to go to the jury, and, we think, properly. From these and other circumstances counsel for plaintiffs argue that the claim that the purchase was by Kidd, Dater & Price Co. was an afterthought. We cannot say that this was not a legitimate inference, or that the court could refuse to submit the question to the jury, nor can we say that the verdict is so clearly against the weight of evidence as to justify a reversal upon that ground.

Counsel for the defendants asserts that a debtor is not to be put in a position where he may be compelled to pay twice, and that the law does not attempt to compel him, at his peril, to decide questions of fact, and decide them correctly; and that, under the testimony given in this case, there is danger of such a result, if plaintiffs are permitted to recover. That there is a class of cases where it is held that a plaintiff cannot be allowed to recover a fund the ownership of which is in doubt may be admitted, but this case cannot he classed with them. Relief cannot be denied plaintiffs upon the ground that another jury may take a different view of the testimony given on another occasion. Kidd, Dater & Price Co., the defendants, and the Edgcumbes know all of the facts connected with the transaction, and they can be proved as well in a case between Kidd, Dater & Price Co. and the defendants as in this case, and we must assume that in both cases the juries will reach the same conclusion, if so proved.

In this connection we should allude to certain testimony admitted against the other objection that it was hearsay. Mr.'Seitz was allowed to testify that Joseph Edgcum.be told him that they had sold out to the defendants. This testimony was admitted upon the ground that it was competent to prove fraud. We suppose this to mean that the plaintiffs claimed that the parties were engaged in a collusive attempt to thwart Seitz in the collection of his debt; a conspiracy, so to speak, whereby it should falsely be made to appear that Kidd, Dater & Price Co., and not the defendants, had purchased from the Edgcumbes. If such testimony had no better ground than that to rest upon, it was not admissible, for the reason that it was at most the declaration of a co-conspirator, and was not made in the prosecution of the enterprise. If admissible, it must be upon the ground that the principal debtors’ statements were competent as admissions, as they probably would be if the defense were being made on their behalf. But this defense was being made by the garnishee defendants in their own interest, to avoid a double liability, and perhaps by Kidd, Dater & Price Co., to save their claim, which, upon their theory of the case, was paid. The plaintiffs have only such rights against these garnishee defendants as Edgcumbe & Sons have. If they have not a valid claim against them, the plaintiffs have not, and it can no more be established by Edgcumbe’s admission in the one case than the other. This testimony was of a character to be very injurious, and was erroneously received. See Rood, Garnishment, § 349, and note.

The further point is made that nearly the entire amount of property sold was exempt property, and the proceeds were not subject to garnishment. Wilson v. Bartholomew, 45 Mich. 41 (7 N. W. 227); Anderson v. Odell, 51 Mich. 492 (16 N. W. 870); Cullen v. Harris, 111 Mich. 20 (69 N. W. 78, 66 Am. St. Rep. 380). We think this point is personal to the debtors or their privies, and understand that they are not in a position to raise it, having neither made the claim below nor appearing here as parties by any proper proceeding. These defendants cannot raise it.

Counsel was entitled to have his fourth request given to the jury. It is as follows:

“I instruct you that the fact that Mr. Starks or Mr. Abel may have supposed, at some time during the negotiations, that they were getting the goods of Edgcumbe & Sons, is entirely immaterial in this case, provided you believe from the evidence that Edgcumbe & Sons actually sold the goods to Kidd, Dater & Price Co.; and in such case it is entirely immaterial what they may have stated to Mr. Seitz, or to Mr. Pearl, or others.”

We also think it probable that an improper construction was placed by the jury upon plaintiffs’ third request. It was:

“If the written instrument made in duplicate in the office of Kidd, Dater & Price Co., referred to in this case, represented the intention of the parties, and the inventory was taken in pursuance of it, then it was a valid contract, regardless of its not being signed.”

We deem it unnecessary to refer to other errors alleged, as the questions involved in them are not likely to arise upon another trial.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.