text:
    MANTHEY v. VINCENT.
    1. Convicts — State Prison — Teaching Mechanical Trades— Constitution — Construction.
    Section 3, article 18, of the Constitution, prohibits the manufacture, in the State prison, of articles the chief supply of which for home consumption is made in the State, in all cases in which manufacturing cannot be carried on without teaching the convicts the trade appertaining to such manufacture; a prohibition of the practical as well as the theoretical teaching of the forbidden trades being intended.
    2. Constitutional Law — Construction — Canons — Obvious Meaning.
    Possible or even probable meanings, when one is plainly declared in the Constitution itself, the courts are not at liberty to search for elsewhere.
    3. Same — Contemporary and Practical Construction.
    Contemporary and practical construction by the State prison authorities of section 3, article 18, of the Constitution, by carrying on certain manufactures in the prison, cannot be admitted as a determination that such section does' not prohibit such manufactures, the meaning of the section not being doubtful.
    4. Convicts — State Prison — Teaching Mechanical Trades — Broom Making.
    Section 3, article 18, of the Constitution, prohibits the manufacture of brooms in the State prison by the labor of convicts unskilled in that art at the time of their incarceration, though the process of manufacture is so divided that no convict is taught to make an entire broom, but is taught to perform but one of thirteen or more distinct operations.
    5. Same — Articles not Sold in Michigan.
    That the articles manufactured in the State prison in violation of section 3, article 18, of the Constitution, are not sold in Michigan is an immaterial circumstance.
    6. Constitutional Law — Construction of Constitution — Duty of Court — Disastrous Consequences.
    • Fear of disastrous consequences furnishes no reason for declining to give the Constitution effect according to its obvious meaning; the remedy, in case the fears do not prove groundless, being with the people.

      Appeal from Wayne; Hosmer, J.
    Submitted May 3, 1906.
    (Docket No. 144.)
    Decided July 23, 1906.
    Bill by Martin Manthey and others against Alonzo Vincent, warden, the board of control of the Michigan State prison, and the Illinois Broom Company, to enjoin the performance of a contract for the manufacture of brooms. From a decree for complainants, defendants appeal.
    •Affirmed.

      Edward 8. Grece {E. A. Baker and Hal H. Smith, of counsel), for complainants.

      John E. Bird, Attorney General (Charles W. McGill and Michael P. Bourke, of counsel), for defendants warden and board of control.

      Arthur C. O’Connor, for defendant Illinois Broom Co.
   Carpenter, C. J.

December 11,1902, the warden and board of control of the State prison at Jackson, defendants herein, agreed to “hireand let ” to the Illinois Broom Company, another defendant herein, “for the term of eight years from and including the 15th day of February, A. D. 1903, the labor and services of 50 convicts.” Said Illinois Broom Company agreed to employ these convicts in shops within the prison walls ‘ ‘ in the business of manufacturing brooms and whisks. ” While defendants were proceeding to perform this contract, complainants, some of whom are journeymen broom makers, and some of whom are manufacturers of brooms, in this State, commenced this suit in equity for the purpose of enjoining the performance of said contract. The case was heard in the circuit court upon pleadings and testimony taken in open court, and a decree rendered in favor of complainants upon the ground contended for by them that the performance of this contract was forbidden by section 3, art. 18, of our State Constitution, reading:

“ No mechanical trade shall hereafter be taught to convicts in the State prison of this State, except the manufacture of those articles of which the chief supply for home consumption is imported from other States or countries.”

From this decree defendants appeal, and they ask a reversal solely upon the ground that the contract in question can be and will be performed without violating the constitutional provision above quoted.

The testimony proves that the chief supply of brooms used in this State is made in this State; that the art of broom making is a mechanical trade; and that the convicts whose labor is used in performing the contract in question were, when they commenced to work thereon, entirely ignorant of said art. As this contract has been ■and is now being performed, these convicts do make perfect brooms, but no one convict makes such a broom. The work is divided into 13 branches. To illustrate: One of these branches is that of sewing the brooms, and another that of sorting the corn from which the broom is made. A convict learns to do the work in one, and only one, of these branches; that is, he learns to make one-thirteenth of the broom and no more.

Is the performance of this contract prohibited by the •constitutional provision ? That depends upon the proper construction of its language.

“ No mechanical trade shall hereafter be taught to convicts in the State prison of this State, except the manufacture of those articles of which the chief supply for home consumption is imported from other States, or countries.”

This language is clear. It prohibits the teaching to convicts in the State prison of any mechanical trade fór the manufacture of articles of which the chief supply for home consumption is made in Michigan. The prohibition extends that far and no farther. It does not prohibit convicts being taught any trade for the manufacture of artilles of which the chief supply for home consumption comes from without the State. And I should not say that it prohibits the manufacture of any articles whatsoever — even those of which the chief supply for home consumption is derived from home manufactories — provided, the .convicts are taught no mechanical trade. It does not follow, however, that this provision does not, and was not-intended to, affect the manufacture of such articles. Convicts cannot manufacture those articles without being-taught the trade unless they already know it. The people, when they adopted this provision, may very well be-assumed to have known what we all know, that there would be among the convicts in the State prison so few skilled mechanics that the possibility of a profitable manufactory being therein conducted without teaching the-convicts the trade of said manufacture was a very remote-one indeed. It follows, therefore, that the enforcement of this provision prevents — and we may therefore properly assume that it was intended to prevent — such manufacture.

The claim is made by defendants that, since the Constitution prohibits teaching and does not prohibit manufacturing, the labor of convicts may be used in manufacturing, even though said convicts are thus taught the mechanical trade of making the articles thus manufactured. This is to contend that the constitutional provision in question prohibits the teaching of a mechanical trade as an educational measure, but permits its teaching as a step in industrial production. That is, that it prohibits theoretical teaching, but permits practical teaching. What evidence is there that the people in adopting this constitutional provision intended to prohibit only theoretical teaching ? There is certainly no such evidence in the language of the Constitution. That prohibits the teaching of mechanical trades. Presumably this means all teaching— practical as well as theoretical — of mechanical trades. It certainly prohibits practical teaching, for that, when the Constitution was adopted, was the ordinary, if not the only, method of teaching a mechanical trade. As we do not find in the Constitution any evidence to limit the* apparent scope of this prohibition, our right to look elsewhere for such evidence may be questioned.

“Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere.” Cooley on Constitutional Limitations (7th Ed.), pp. 89-91.

In this case, however, it is proper that we should consider such evidence, for without considering it we cannot sustain defendant’s contention, and by considering it — as will hereafter appear — we only strengthen the conclusion we reach without it. We proceed therefore to state that evidence which is the history of the adoption of the constitutional provision under consideration. That history will be found both interesting and instructive.

Act No. 77 of the Laws of 1839 authorized the authorities in control of the State prison to use the labor of convicts in “manufacturing and mechanical businessthe only restriction being that the employment furnished should be “most beneficial to the public and best suited to their (the prisoners’) various capacities.” Act No. 81 of the Laws of 1842 authorized the prison authorities to enter into contract “letting the convicts for said labor (the labor of said convicts) of all or any of the branches now carried on or may hereafter be carried on in said prison.” In 1843 the platform of the democratic party (then the dominant party in this State) contained this resolution:

“Besolved, that this convention earnestly recommend the next legislature of the State to enact such laws in relation to the penitentiary discipline that the, mechanical labor of the convicts shall not come into competition with the mechanical labor of our citizens.”

Governor Barry, who was elected upon this platform, in his annual message, in January, 1844, recommended legislation in accordance therewith. The house committee on State prison, to whom was referred this part of the governor’s message, reported:

‘ ‘ The inspectors of the State prison in their report, and also the governor in his message, recommends and suggests the propriety of establishing by law at this session of the legislature, a prison discipline, relative to mechanical labor, by giving it such direction as will prevent competition between convict and free labor. * * *
“It is admitted that labor is an essential part of the most approved system of prison discipline’, and is important to the State in a financial point of view, yet your committee believes that a system may be adopted that will protect the rights and interests of the honest and industrious mechanic, and that will be consistent with the interests of the State. Your committee, for the purpose of carrying out their views more fully, herewith submit a bill.” House Journal 1844, p. 108.

That bill was passed by the house, but rejected by the senate. It was not preserved, and its precise phraseology is not known. It may have been, and it may not have been, like the constitutional provision in question. In revising the statutes, in 1846, the legislature inserted in the chapter (172) headed, “Of the State Prison and Government and Discipline Thereof,” section 16, which read:

“No mechanical trade shall hereafter be taught to convicts in the State prison of this State, except the making of those articles of which the chief supply for the consumption of the country is imported from other States or countries.”

It will be observed that the constitutional provision under consideration follows this language almost precisely. This section was repealed by the legislature in 1848. See Act No. 196, Laws of 1848. In the convention which framed our present Constitution, a motion was made to strike out the constitutional provision under consideration. The only argument in support of this motion was made by Mr. Pierce, a member of the convention from the county of Calhoun. He said:

“ I have examined the prison, and I do not find an article manufactured there in which the market is overdone. Everything sold there is surplus production. I do not believe it lowers the value of wagons one cent. It does not injure the workingmen of Jackson $1 in 365 days. * * * It is so much value added to the State without injury to any one.” Convention Debates 1850, p. 826.

In opposition to this motion Mr. Wilbur F. Storey, who subsequently attained fame as the editor of the Detroit Free Pross, and later as the founder and editor of the Chicago Times, then a member of the convention from the county of Jackson, said:

“ This section was a provision in the Revised Statutes of 1846. It was placed there after considerable agitation among the people, and after the whole subject had been very thoroughly discussed in both branches of the legislature. * * * It was repealed, as I believe, through the influence and for the benefit of interested contractors at the prison. * * *
“ And what was the consequence of the repeal of this section? It was, sir, that the then existing contracts were extended some five years, at the low and inadequate prices previously paid, when, had the section been allowed to stand, and a reletting of the labor of all the convicts taken place at the expiration of the existing contracts, an advance of from 40 to 60 per cent, upon the former receipts from contractors might have been realized by the State. * * *
“The most profitable contract now existing is one which does not interfere with mechanical trades in the State. * * * Whether the prison will support itself or not is a question of minor importance, when compared with the great consideration of right and wrong involved. In my view, the State has no right to erect a monopoly which will interfere with the single-handed industry of any class of her citizens. Every class of labor is entitled to the protection of the State, rather than to be brought into competition with her. Such competition is unfair, unjust, and ruinous. * * *
“ In those branches of business in which they (the convicts) are engaged particularly (the manufacture of boots and wagons) the mechanics in Jackson cannot compete with them; they have ceased work; they are driven from their shops. * * *
‘ ‘ There is, sir, a moral question of some magnitude involved here. The convicts are taught trades in the prison, and when they go out they are very likely to seek employment in shops where a like business as they have learned is carried on. If they have reformed, and become honest men, this is all well. But, if not, if they are still foul with crime, what is the effect upon those they come in contact with — the journeymen and apprentices that fill the work-shops of our cities and villages ? Sir, it is at least degrading to the honest mechanic, and in some cases the contamination is fatal. * * * I may be asked, why not leave the whole subject to the legislature, and why put this section in the Constitution P Simply for the reason that I would place the provision beyond the power of repeal through the efforts of interested contractors or other persons. This much, surely, is due to the great mechanical interests of the State.” Convention Debates 1850, pp. 827, 834, 838.

Substantially the same arguments were advanced by several other members who opposed the motion to strike out this provision, and that motion was defeated.

It is apparent from this evidence that the constitutional provision under consideration was designed to accomplish two objects:

(а) To protect the citizens of Michigan engaged in manufacturing articles of which the chief supply for home consumption is made in Michigan (and this it may well be supposed will protect all our citizens, extensively engaged in manufacture) from the competition of State prison convict labor.

(б) To lessen the probability that the honest mechanics of Michigan should be compelled to associate with discharged convicts because the latter had been taught the trade of the former in the State prison of this State.

It was desired to accomplish these objects and at the same time to permit — perhaps to encourage — said convicts to engage in manufacturing all other articles and to learn all other trades. It is not for us to decide that these objects were or were not commendable. That was a question for the people to decide. They have decided it. We are bound to bow to that decision and to construe this provision as they intended it should be construed. Nor can it be said that the language of the provision in -question was not calculated to accomplish these objects. It is true that it still left an opportunity for competition in “the manufacture of those articles of which the chief supply for home consumption is made in Michigan, provided those articles might be manufactured without teaching the convicts a trade. But, for the reasons we have already pointed out, the prohibition of teaching the trade of manufacturing these articles amounted to a practical prohibition of manufacturing them. We conclude, therefore, that the constitutional provision under consideration — and this is true whether its language be construed with or without the aid of the foregoing evidence — prohibits the practical as well as the theoretical teaching of forbidden trades. It prohibits the manufacture of articles the chief supply of which for home consumption is made in Michigan, if that manufacture cannot be carried on without teaching State prison convicts a mechanical trade.

We think there is nothing inconsistent with these views in People v. Inspectors & Agent of State Prison, 4 Mich. 187. That case is authority for this proposition and for this proposition only, viz., that a private individual has no right to enforce the constitutional provision under consideration by a writ of mandamus. In the course of that opinion it was said:

“Again, it may be observed that the provision of the Constitution does not forbid the manufacture, in terms at any rate, of any article in the prison, but that no trade shall be taught there, except the manufacture of those articles, the chief supply of which is imported from other ■ States. Now, the relator does not allege that he has been injured by the trade of wagon making having been taught to the convicts simply, but that he has been injured by that, and by the manufacture of wagons in the prison, which, as we have seen, the language of the Constitution does not forbid.”

If these is anything in this language opposed to the views stated in this opinion, it is to be found in the concluding words above quoted. The learned judge who wrote that opinion does not say that the Constitution does not, under any circumstances, forbid tbe manufacture of wagons in the prison. He does say that “the language of the Constitution does not, as we have seen [that is, it does not in terms], forbid ” such manufacture. Nor can we agree with defendants’ counsel that the construction placed upon this provision by the State prison authorities —it is claimed they have carried on the manufacture of these prohibited articles for 60 years — is binding upon the courts as a contemporaneous and practical construction. I doubt if the evidence in this record proves that they have so manufactured said articles. If it does, it, is incompetent evidence to determine the proper construction of the provision in question. Says Justice Cooley in his work on Constitutional Limitations (7th Ed.), pp. 106, 107:

“We think we allow to contemporary and practical construction its full legitimate force when we suffer it, where it is clear and uniform, to solve in its own favor doubts which arise on reading the instrument to be construed.”

Here, as we have shown, such doubts do not arise, and we cannot, therefore, give any force whatever to the construction placed upon this provision by the State prison authorities.

We come now to the consideration of the contention of defendants’ counsel that as the brooms are made under the contract in question, no mechanical trade is taught to the State prison convicts. Defendants argue that, because no convict is taught to make a complete broom, no mechanical trade is taught. This is an unsound argument. Its fallacy lies in the assumption that the Constitution prohibits only the teaching to the individual convict of a complete trade. The Constitution prohibits the State prison convicts — and this means the convicts collectively as well as the convicts individually — being taught the mechanical trade of manufacturing articles of which tbe chief supply for home consumption is made in Michigan. In .performing the contract in question such a trade is taught. The art of broom making is a mechanical trade. A number of convicts ignorant of the art of making brooms are taught to make them. It follows that they are taught a mechanical trade. To hold otherwise would permit the prison authorities to do the very thing which the people, when they adopted this provision, intended to prevent.

The testimony in this case proves that the brooms made under the contract in question are not sold in Michigan, but are sold in other States. Defendants’ counsel do not claim that this is a 'material circumstance. We agree that it is not. The people who adopted the constitutional provision in question did not except from its operation the manufacture of articles sold in other States. It is not difficult to imagine reasons why they made no such exception. Such an exception would have tended to defeat their objects. For those articles, though sold out of Michigan, might, nevertheless, be sold in competition with articles made in Michigan, and the convicts employed in making them might none the less be taught a prohibited trade. Whatever were their reasons they made no exception and we can make none.

Defendants’ counsel express the fear that disastrous consequences will follow from an affirmance of the decree of the lower court., We think these fears are groundless; but, if they are not, they cannot move us. We would be faithless to the trust the people have reposed in us if we permitted them to deter us from construing this provision as we do — from construing it as the people intended it should be construed. If disastrous consequences ensue, the people are responsible for them, and the people can avert them by amending their Constitution.

The decree appealed from should be affirmed, with costs against the defendant the Illinois Broom Company.

McAlvay, Montgomery, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J. Montgomery, J.

license: Public Domain

text:
    JACKSON v. MASON.
    Schools — Pupils—Compulsory Attendance —Age Limit — Statute — Construction.
    Act No. 300, Pub. Acts 1905, providing for the compulsory education of children “ between and including the ages of seven and fifteen years,” does not require the sending to school of a child between the ages of fifteen and sixteen, the word “ including ” having no force to extend the limit beyond the time specifically designated. Montgomery and Hooker, JJ., dissenting.
    Certiorari to Kalamazoo; Adams, J.
    Submitted May 1, 1906.
    (Calendar No. 21,674.)
    Decided July 23, 1906.
    Mandamus by H. Clair Jackson, prosecuting attorney, to compel Lynn B. Mason, judge of the recorder’s court of the city of Kalamazoo, to issue a warrant for the violation of Act No. 200, Pub. Acts 1905. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      H. Clair Jackson, in pro. per.

      Lynn B. Mason, in pro. per.

      Henry E. Chase, Deputy Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for the superintendent of public instruction.
   McAlvay, J.

Certiorari to mandamus proceedings before the circuit court for Kalamazoo county. Relator, prosecuting attorney for Kalamazoo county, by written order directed and requested respondent, judge of the recorder’s court of the city of Kalamazoo, to take the complaint of, John H. Blaney, and issue a warrant for one Arend Bos of said city, for a violation of Act No. 200 of the Public Acts of 1905. The recorder took said complaint, but refused todssue a warrant upon it, for the reason that in his opinion, the complaint did not set forth a violation of said act. Said act is entitled:

“ An act to provide for the compulsory education of children, for penalties for failure to comply with the provisions of this act, and to repeal all acts or parts of acts conflicting with the provisions of the same.”

Section 1 provides:

“Every parent, guardian, or other person in the State of Michigan having control and charge of any child or children between and including the ages of seven and fifteen years, shall be required to send such child or children to the public schools during the entire school year. * * * ”

Section 3 makes a failure to comply with the provisions of the act a misdemeanor and fixes the penalty. The child in this case was of the age of 15 years and 8 months. An order to show why a writ of mandamus should not issue compelling respondent, to issue said warrant, issued from the circuit court, and upon a hearing the writ was denied, and the proceeding dismissed. The provision of the act repealed by this act relative to the age limit was, “* * * between the ages of eight and fifteen years, and in cities between the ages of seven and fifteen years.” Act No. 83, Pub. Acts 1901. This repealed the provision of a former act which was as follows: “ * * * between the ages of eight and fourteen years and in cities between the ages of seven and sixteen years.” Act No. 95, Pub. Acts 1895.

The only question in the case is whether the statute applies to children above the age of 15 years. The circuit court held that it did not, and error is alleged upon such holding. The contention of the relator is that it applies to children over 7 years and under 16 years of age. The words of the statute before us for construction are, “any child or children between and including the ages of seven and fifteen years.” It is urged that to give any force to the word “ including ” the section must be construed to include children during the entire fifteenth year and until they become, sixteen years old. We think to do so would be a doubtful construction and the court should hesitate to make an act a crime by such means. The statute is not ambiguous in designating tbe age limit between tbe ages of 7 and 15 years. The word “including” has no force to extend that limit beyond the time specifically designated. A child over 15 years of age is not between the ages of 7 and 15 years, and therefore not within the provisions of the act. An examination of these provisions of the earlier acts shows: That by the act of 1895 compulsory education was enforceable for a period of 6 years as to children not in cities, and as to children in cities for a period of 9 years; that by the act of 1901 compulsory 'education was enforceable for a period of 7 years as to children not in cities, and as to children in cities for a period of 8 years. In each of these acts the children in cities were subject to its provisions one year earlier in life than other children in the State. The evident intent of the legislature in the portion of the act of 1905 under discussion, establishing the limit between the ages of 7 and 15 years, being a period of 8 years, was to fix the same age limit for all of the children in the State, at such a time in their lives, and for such a term between the two extremes of the former acts, as experience had shown would be most satisfactory.

The judgment of the circuit court is affirmed, without costs.

Carpenter, C. J., and Grant, Blair, Ostrander, and Moore, JJ., concurred with McAlvay, J.

Montgomery, J.

We think the statute treats the year as the unit, and that it follows that the words 7 to 15 years inclusive includes the year in which the child is generally spoken of ás 15 years of age. See 1 Comp. Laws, § 50.

Hooker, J., concurred with Montgomery, J.


author: Per Curiam.

text:
    YOUNG v. VAN BUREN CIRCUIT JUDGE.
    Mandamus — Propriety—Fruitlessness of Remedy.
    Mandamus will not issue to compel a circuit judge to frame an issue, or show cause why he should not do so, in a mandamus proceeding before him to compel a village council to approve a druggist’s bond, where it appears from his return that while the bond was in the custody of the council, and before the hearing before him, three of the four sureties on the bond withdrew from it.
    Mandamus by Ed. Young to compel L. Burget Des Voignes, circuit judge of Van Burén county, to frame an issue in a proceeding to compel the approval of a druggist’s bond.
    Submitted February 27, 1906.
    (Calendar No. 21,558.)
    Writ denied July 23, 1906.

      Barnard & Lewis, for relator.

      H. M. Huff and R. M. Chase, for respondent.
   Per Curiam.

This is an application for mandamus to compel respondent to frame an issue, or show cause why he should not do so, in a certain mandamus proceeding pending before him in said court wherein relator sought to compel the council of the village of G-obleville to approve a certain druggist’s bond presented by said relator. For the reason that it appears from the return of respondent circuit judge in the answer of said council that while said bond was in the custody of said village council, the same not having been accepted and approved, three of the four sureties thereto filed in writing with said council their withdrawal from said bond as sureties and notice of refusal to serve as such, therefore at the time the said mandamus was heard before respondent there was no proper bond to be passed upon by said council or said respondent, further proceedings would have been useless.

The writ is denied, with costs.


author: McAlvay, J.

text:
    BARRON v. MYERS.
    Appeal and Error — Stay Pending Appeal — Bond—Sufficiency.
    Where, on a bill to set aside a deed, complainant has a decree and is put in possession of the property, defendant’s rights are not properly protected pending appeal by requiring a bond to answer for rents collected, but the bond should also obligate somplainant to pay all damages resulting from negligence in failing to collect rents, failure to properly lease any portion of the premises, and other negligence in the care and management of the premises,
    Appeal from Macomb; Tappan, J., presiding.
    Motion submitted May 8, 1906.
    (Calendar No. 21,614.)
    Decided July 23, 1906.
    Bill by Theodore Barron against Addie E. Myers and Merlin A. Myers to set aside a deed. From a decree for complainant, defendants appeal: On motion for the appointment of a receiver pending the appeal.
    Granted conditionally.

      Silas B. Spier, for the n, >tion.

      Byron JR. Erskine, contra.
   McAlvay, J.

This is an application by defendants and appellants for the appointment of a receiver of certain property involved in a cause now pending in this court on appeal from the circuit court for Macomb county-in chancery. On May 9, 1904, complainant filed his bill of complaint in said court against defendants to set aside a deed made by him August 11, 1903, to defendant Addie E. Myers, of a certain brick store and office building in Mt. Clemens, on the ground that the same was obtained through false and fraudulent representations. He was granted a decree in accordance with the prayer of his bill. Defendants, pending a settlement of the case by the court, asked the court for a stay of proceedings pending their appeal. The motion was granted as to the collection of the complainant’s costs, and the court required the complainant to furnish defendants a bond in the sum of $3,000, to pay and account to them, as provided in said order, for all rents collected pending the appeal and determination of the case in this court. Complainant at that time or immediately after went into possession of the premises in dispute. This application is made on the ground that his possession was improperly obtained, that he is financially irresponsible, and that his agent is lax in collecting rents, paying taxes, paying interest on a mortgage, and caring for the property; and they insist that, during the pend-ency of this suit, and until the case is finally decided, their interests should be protected in the manner requested.

The bond given by complainant is not adequate security. It does not protect defendant from negligence in the care and management of said building. The motion for the appointment of a receiver is granted, unless within 10 days complainant executes to defendant Addie E. Myers a bond in the penal sum of $6,000 with sureties approved by the clerk of this court, conditioned, in the event of the reversal of the decree of the lower court, upon his paying at once to said defendant all rents collected by him and not legally and properly disbursed, and upon paying all damages resulting from negligence in the care or management of said building. (This is intended to describe negligence' in collecting rents, and in failing to properly lease any part of said building, as well as any other negligence in its care or management.)

An attorney fee of $10 is allowed petitioner as costs of this motion.

Carpenter, C. J., and Blair, Hooker, and Moore, JJ., concurred.


author:
Moore, J.
      McAlvay, J.

text:
    WILBUR v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Personal Injuries — Crossing Accident — Contributory Negligence — Question for Jury.
    In an action against a railroad company for personal injuries sustained in an accident at a highway crossing, evidence examined, and held, that plaintiff’s husband, who was driving, was not, as a matter of law, guilty of negligence imputable to plaintiff in failing to stop his horse at a point where the horse’s head would have been within 10 or 12 feet of where it would have been struck by the passing train. MoAlvay, Grant, and Blair, J J., dissenting.
    2. Appeal and Error — New Trial — Refusal—Review.
    Alleged error in refusing a motion for a new trial cannot be reviewed under section 10504, 3 Comp. Laws, where the record does not contain any statement of the reasons which actuated the trial judge in refusing the new trial on one of the grounds on which the motion was based.
    Error to Oakland; Smith, J.
    Submitted October 13, 1905.
    (Docket No. 62.)
    Decided July 23, 1906.
    Case by Myrta Wilbur against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John H. Patterson, for appellant.

      Andrew L. Moore, for appellee.
   Moore, J.

The plaintiff was injured where the highway crosses defendant’s railway track. She claimed the defendant was negligent, and sued the defendant. The case was tried by jury. The plaintiff recovered a judgment in the sum of |3,000. The case is brought here by writ of error.

The important question in the case is whether the judge should have directed a verdict in favor of defendant, because the husband of plaintiff, with whom she was riding at the time she was hurt, was guilty of contributory negligence. The injury occurred soon after 6 o’clock p. m. October 23, 1903, at a highway crossing north of Oxford. The highway runs north and south. The railway track runs west of north and east of south where it crosses the highway at an acute angle. The plaintiff and her husband were going north. It is their claim that a train approached them running at a rapid rate of speed from the south; that the statutory signals for the crossing were not given, and while in the exercise of due care upon their part, the injury occurred. The defendant claims the statutory signals were given; that if the husband of the plaintiff had looked and listened as it was his duty to do he would have seen and heard the train in time to avoid the accident. Testimony was given in support of each of these claims. There is testimony that south of the railroad right of way there are obstructions on the east side of the highway for a considerable distance, which would obstruct the view of a train coming from Oxford.

The husband of plaintiff after describing the approach to the crossing, the narrowness of the highway, the trees, buildings, and other obstructions that would prevent seeing an approaching train, among other things testified as follows:

“To a certain extent I knew before the accident there were obstructions to the view, but as to where the exact points of vision were cut off, I could not say. I was present after the accident when an effort was made to estimate how far south of the crossing you could be, and still get a view down the railroad right of way. I knew these obstructions were here at the time of the accident, and I knew the orchard was here, and I knew they obstructed the view. On the day the test was made to estimate how far south of the track you could be and still see a train coming or see up the right of way, if I remember right, it was somewhere between 19 and 21 feet. We made the test with the rig, and by measurement. If I remember right you would have to be closer in a rig than you would on the ground.
Q. The night of October 33d, as you approached the crossing what, if anything, did you do with reference to ascertaining whether or not the train was coming ?
“A. I stopped my horse, and looked, and listened.
Q. How did you look, in what way ?
A. I leaned forward in the rig, and looked around, the side curtain of the buggy.
Q. And how far were you from the- track when you. stopped ? »
“A. 35 or 40 feet, in my judgment.
Q. You could see up the line, track, could you not — ■ the cattle guards ?
“A. Yes, sir.
“ Q. How long did you remain with the horse still ?
“A. Not over a quarter of a minute.
Q. Just a few seconds ?
“A. Yes, sir.
Q. And then what did you do?
“ A. I started the horse. I had driven the horse before, and had driven it around the cars. It was very afraid.
Q. As you drove on towards the crossing, 35 or 40 feet, whatever the distance was, what, if anything, did you do during that period of time to discover ’whether a train was coming or not ?
“A. I continued to look.
“Q. How?
“A. By leaning forward and looking around the curtains of the buggy.
Q. What was the first intimation that you had that a train was there ?
“A. I saw the gleam of the light strike the horse.
Q. Do you know whether or not the horse at that time was on the track ?
“A. I believe the feet of the horse were on the rail.
“ Q. Well, what do you know about what happened after that ?
“A. I don’t remember anything until I was on the train.
Q. Was there a flagman stationed at that crossing on the night in question ?
“A. I did not see one; no, sir.
Q. And there was no alarm or signal bell to warn, you that night ?
“A. I didn’t see any, and didn’t hear any.
Q. What evidence did your horse show, if any, that it had either seen or heard the approaching train ?
“A. It gave no sign whatever. After the accident, the first thing I remember was being on the train.”

On the cross-examination he testified, among other things: •

Q. Now, could you illustrate just what position you were in when you were continuing to look after you started up your horse ?
The Court: That is a pretty hard supposition for him in the court-room.
Q. Then I will ask you this question: You were about half out of the buggy weren’t you ?
“A. My head and shoulders would be over the edge of the buggy.
Q. You were in that way looking southeast and you would necessarily have- to get around like this here (illustrating to witness).
“A. Yes, sir. (
Q. And in order to do that you had to get up in the buggy, did you not ?
“A. Yes, you would have to raise in the buggy.
Q. You would have to raise up in the buggy; you were standing on your feet ?
“A. Partly.
Q. Partly?
“A. Yes, sir.
Q. And looking around in that direction ?
“A. Yes, sir.
Q- Do you mean to say that you continued in that position ?
“A. Yes, sir.
Q. How long ?
“A. Until I reached the point of the track.
. “ Q. What do you mean ?
“A. Until I was struck.
Q. And looking in that position all of the time, driving the horse,' were you ?
“A. Yes, sir. Don’t remember which hand I was driving with.
Q. Well, continuing in that position, partly upon yoür feet with your head and shoulders in front of the top and looking southeast, you continued to drive the horse on a walk across the track, did you ?
“A. I didn’t get across the track.
Q. No, but you started to go across ?
“A. Yes, sir.
Q. And the horse was on a walk all the time ?
“A. Yes, sir.
Q. Yes, and continuing to look in that position did you see that train ?
“A. No, sir.
Q. When did you see the train ?
“A. I saw the light strike right in my face when I got on the track. The horse was on the track. I was not quite on the track, the rig was in the right of way, in my judgment.
Q. You were looking all of the time ?
“A. Yes, had been.
Q. And continued to look in the southeast direction up to the time you saw the light' on the horse ?
“A. Yes, sir.
“ Q. You didn’t see a headlight ?
“A. Yes, sir.
“ Q. You didn’t see it except as the light struck the horse ?
“A. It struck me in the face.
Q. How far was the buggy at that time,according to your best judgment ?
“A. Well, I didn’t have any judgment after I saw that light.
“ Q. You are unable to tell what you did after you saw the light ?
“A. Yes, sir.”

His wife corroborated his testimony. She was sitting on the left hand side of the buggy, and testified that after her husband started the horse after the stop was made, she continually looked through the window in the back curtain in the direction from which the train would come, and heard and saw nothing indicating its approach until the horse was on the right of way.

Mr. Skillman, whose farm is located about a mile north of this crossing, testified:

“ My attention has been called to how close you must get to the crossing to get a view of an approaching train from the south, and I have made an examination to ascertain how close you must be to the crossing before you can see down the right of way, and see a train. That distance is 7 paces from the south rail south; at a distance of 7 paces south from the south rail you can see down here by Lett’s house. They were ordinary paces, possibly 21 feet. That is sitting in the buggy, you possibly could see further standing on the ground, because when you are in the buggy you would be looking into these trees along here. You cannot see a train approaching looking under those trees unless the leaves are all off from the trees, then you might possibly see better that way. _ In the 30 rods from Fuller’s house to the crossing, driving north there is approximately 100 feet that you get a view of the track until you reach a point about 21 feet from the crossing. The view is completely shut off of an approaching^ train from the south between Fuller’s house and the point 21 feet south from the crossing, except for this 100 feet approximately, when the leaves are on the trees.”

On the cross-examination he testified:

A. May 20, 1904. At that time I think the leaves were all out on the trees and I could just see by Lett’s house at a distance of 21 feet away, sitting in a buggy with my horse headed north. My position in the buggy was 21 feet south from the south rail. My estimate of the distance, I could see down the track from that position 21 feet from the track, is 10 or 12 rods; have never made that test since that time.”

The trial of this case commenced February 13, 1905. Benjamin Gardner, upon whose farm the crossing is where the accident happened, after describing the condition of the road south of the crossing, and the obstruction on the east side thereof, stating a pace is calculated to be three feet, testified:

“ Q. Did you make any examination to ascertain how far south of the crossing you could be and still get a view down the track of an approaching train ?
“A. I paced it. I made it 7 paces from the south rail in the traveled portion of the highway. I made the test last Friday. There were no leaves on the trees at that time. I was in a cutter; never tested it before; never paced it before.
Q. Have you ever made any test ?
“A. Yes, I made a calculation in the summer time with a buggy. I would drive up and would look, then I would drive a little further, and see how near I could get to the railroad track before I would see it, and then I made an estimate as to how far it was from the horse’s head to the track.”

He also testified that “when the leaves were on, you would have to be still nearer the track before you could see the approaching train.” There were other witnesses who gave like testimony. There were upwards of a dozen witnesses sworn upon each side.

We have the question, then, before us whether it can be said, as a matter of law, that because at a point 21 feet south of the south rail the observer could see in the daytime (when he was there for the express purpose of seeing how far away he could see an approaching train), one could see it as some of the witnesses say, 12 or 15 rods, and others say perhaps 40 rods, that the husband of the plaintiff was guilty of contributory negligence, which may be imputed to her, because upon a cold, stormy night he did not, at this point, stop his horse and avoid the accident. Account should be taken of the fact that some men do not think as quickly as others. It should not be forgotten that the^ horse was afraid of the cars. At this point his head was within 10 or 12 feet of where it would be struck by a passing train, a trying situation indeed for both driver and beast. I am not prepared to say that under such circumstances we can say, as a matter of law, the husband was guilty of contributory negligence, because he did not then stop his horse and avoid the accident. The question presented is not one of law, but is one of fact, namely: Did the driver do what a reasonably prudent person would have done under like circumstances ? The circuit judge in a very fair and impartial charge left the question to the jury. See Potter v. Railroad Co., 140 Mich. 362; Monroe v. Railway Co., 129 Mich. 309; McDuffie v. Railway Co., 98 Mich. 356; Richmond v. Railway Co., 87 Mich. 374; Haines v. Railway Co., 129 Mich. 475; Hintz v. Railroad Co., 140 Mich. 565.

It is said the verdict is against the weight of evidence and for that reason a new trial should have been granted. We do not think the record is in a condition to present that question,' briefly stated, for the following reasons: A motion was made for a new trial, among other reasons because the verdict was against the weight of evidence. No request was made of the circuit judge that he file his Teasons for doing so, if he refused a new trial. He did not file any reasons. Later a petition was filed asking for leave to file anqther motion for a new trial, because of newly discovered evidence. The petition was granted. Another motion for a new trial was made for the following reasons, to wit:

First. Because of each and all of the reasons set forth in the motion for new trial heretofore filed.
Second. Because of the discovery of new evidence the nature and application of which is more fully set forth in the affidavits of William C. Rugenstein and Alice Ru;genstein hereto attached.”

The judge was requested, if he overruled the motion, to file his reasons for doing so. The judge filed his reasons for refusing the new trial. He apparently treated the motion as one made upon the ground of newly discovered evidence. In the reasons he gave for refusing a new trial, he referred to the newly discovered evidence, and no reference was made to any reason relating to the question of whether the verdict was against the weight of evidence. He was not requested to make a further finding relating to that question, but counsel contented himself with taking exceptions to the reasons given for denying the motion for a new trial. The record does not contain any statement of the reasons which actuated Judge Smith in refusing a new trial because the verdict was against the weight •of evidence. The statute relating to this subject is section 10504, 3 Comp. Laws. It has been construed in McRae v. Lumber Co., 102 Mich. 488; Finley v. Widner, 116 Mich. 679; Stevenson v. Railway Co., 118 Mich. 651.

The judgment is affirmed.

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

McAlvay, J.

(dissenting). Plaintiff recovered a judgment for personal injuries received at a certain public highway crossing on defendant’s railroad in Oakland county, known as “Gardner’s Crossing.” The injury occurred on the evening of Octobor 23, 1903, between 6 and 7 o’clock. It was after lights were lighted in the houses in the vicinity; but was not so dark that one could not see where he was. It was quite cold, and the wind was blowing from the north. Plaintiff with her husband, who was driving, were on their way home from the village of Oxford. They were riding in a single buggy with the top up and the side curtains on. There was a glass in the back curtain. Both plaintiff and her husband were well acquainted with this crossing, having passed over it very many times, and knew it was a dangerous one. The highway runs north and south and the railroad crosses it at a very acute angle, being located quite near on the east side of the highway for a considerable distance south of the crossing. These parties were driving north. On the right hand side of the highway going north there are two houses with outbuildings and orchards, which at places obstruct the view to the railroad. Between these premises going north from the one farthest south of the crossing, is an open unobstructed space of about 100 feet, giving clear view of the railroad. After passing this space the ground rises up to the house nearest to the crossing, and then descends about 4 feet gradually to the crossing. This house with shed and orchard occupies the narrow triangular piece of land between the railroad and highway with the point where they intersect each other. These premises are higher than the highway, and with buildings and orchard obstruct the view of the railroad entirely in some places, and at others to a greater or less extent — whether completely or not up to defendant’s right of way is in dispute. As these parties approached the crossing, and when within from 35 to 40 feet of it, they stopped, looked, and listened. The testimony of the plaintiff and her husband shows that she looked through the glass in the back of the buggy top, and her husband looked out of the side, putting his head and shoulders out, looking toward the southeast for any train that might be coming. They did not look in any other direction. They knew it was about time for the train to go north, but thought it had passed. Not hearing or seeing anything, they proceeded with the horse at a walk, continuing to look all the time in the direction and manner described, the husband rising somewhat out of the seat; neither of them saw or heard anything until the horse was on the track, when the headlight flashed in the man’s face and they were struck and injured. No other person saw the accident. The train which caused the injury was the regular evening passenger train going north, which was about 8 minutes late at the village of Oxford, and was running about 45 miles an hour. The negligence charged against defendant is in operating a train at a high rate of speed; and failure to give any warning of its approach; also in maintaining the crossing in a dangerous condition on account of the obstructions caused by the adjoining property and the buildings and trees thereon. Much of the evidence offered by both parties in the case was upon the question of the nature and extent of the obstructions to the view of the railroad south of the south line of defendant’s right of way. There was no serious claim made that these obstructions extended farther north than that point. Plaintiff’s husband, after the accident, when the leaves were on the trees, made a test as to where the view became unobstructed, and testified that he found ain open view for at least 40 rods at a point 21 feet south of the south rail. The record shows that this point is about at the line of the right of way.

Defendant requested the court to direct a verdict on the ground that the failure to see the approaching train was due to plaintiff’s negligence and the negligence of her husband which contributed to the accident, and also that the testimony that the required signals were given was conclusive.^ This request was refused. After this motion was denied, at defendant’s request the court charged the jury:

‘ ‘ The testimony of the plaintiff’s husband is that there was an unobstructed view of the track for at least 40 rods at a point about 21 feet south of the south rail on the occasion he made a test after the accident while the leaves were still on the trees and if you find from this testimony and the other evidence in the case that the plaintiff’s husband could have seen the train at the point of the accident if he had looked for it, then your verdict must be for the defendant of no cause of action.”

This request was given, being included in the general charge of the court, and the case was submitted to the jury. Two motions for a new trial were made and denied. The grounds for said motions were that the verdict was against the weight of evidence; that the court erred in submitting the question of the plaintiff’s contributory negligence to the jury; and on account of newly discovered evidence. The material errors assigned are based upon the refusal to instruct a verdict for defendant on the ground of contributory negligence of plaintiff and the refusal to grant a new trial for the reasons stated.

This case depends solely upon the question as to whether there was contributory negligence on the part of the plaintiff, as a matter of law. All the other questions were disputed questions of fact, and were properly submitted to the jury by the trial judge in an admirable charge. As stated by the court, plaintiff’s husband testified that, in a test made by him after the accident, while the leaves were still on the trees, at a point 31 feet south of the south rail of the track, there was‘an unobstructed view of the track, in the direction from which this train approached, of at least 40 rods. His testimony is as follows:

Q. Did you measure 31 feet along the track in the traveled roadway ?
“A. We did.
“ Q. You were measuring the distance, you were out in the highway where you could see up the track, weren’t you P
“A. Why, yes, sir.
“ Q. You made a test of it ?
A. Yes, sir. * * *
“ Q. At the time you made the test as to how far you could see up the track there, what is the shortest distance you are willing to say you could see up the track from the crossing ?
“A. I don’t understand. (Question repeated.)
“A. How many rods up the track ? I couldn’t say.
The Court: Standing 19 or 20 feet away from the -rail.
“A. I just said, I was unable to say.
The Court: Can’t you give some idea whether it was •one rod or 100 ?
“A. Possibly you could see 100 rods up there.
The Court: He is asking you for the shortest distance, you feel safe, you could see.
“A. I possibly could see 40 rods up there and possibly more.
Q. Is it your best judgment that you could see 40 rods up the track from a position 19 or 20 feet south of the south rail in the traveled portion of the highway at Gardner’s crossing ?
“A. I thought that I might. That would be my judgment.” ®

This is an intelligent witness. He was the husband of ■plaintiff, and was driving the horse at the time of the accident. He testified that he was leaning with his head and •shoulders out all the time from the time they started up after stopping until they were struck, looking in the direction from which this train was coming. The horse was proceeding at a slow walk. The headlight on the engine was burning brightly. He knew the crossing to be difficult and dangerous. He had crossed there numerous times, and knew all the surroundings. The testimony of this witness, above quoted, and its bearing upon the question of plaintiff’s contributory negligence, is not considered in appellee’s brief; but the claim is that, having performed the duty, of stopping, looking, and listening at a point 40 feet from the track, and seeing and hearing nothing, these parties then proceeded as they had a right to do under numerous decisions of this court, which are cited, and the question of contributory negligence is one of fact and not of law. The cases relied upon are: Potters. Railroad Co., 140 Mich. 363; Monroe v. Railway Co., 129 Mich. 309; McDuffie v. Railway Co., 98 Mich. 356; Richmond v. Railway Co., 87 Mich. 374; Haines v. Railway Co., 129 Mich. 475; Hintz v. Railroad Co., 140 Mich. 565. These cases are all easily accessible and it will not be necessary to - digest them in this opinion. It will be sufficient to say that all of them are distinguishable from the case at bar in that as to all the vital questions at issue there was either a dispute as to the facts, or where an opportunity was offered for the injured party to discover and avoid a train it was so limited that a failure to do so was not held to be negligence as a matter of law.

In the case at bar at a point 19 or 30 feet from the rail there was at least 40 rods of unobstructed view up the track upon which this train was approaching with a brilliant headlight towards which plaintiff’s husband says he was looking all the time, and saw nothing. The conclusion is irresistible that he was not looking as he claims. In an Iowa case the court uses this language:

“But it is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not, and that this testimony shows that he was not guilty of contributory negligence, or, at the very least, it made that a question of fact for the jury. The difficulty, however, with the position is that the conceded or undisputed facts being true this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict.” Artz v. Railroad Co., 34 Iowa, 153.

In a recent Wisconsin case that court said :

“Where a physical situation renders the right of a matter clearly beyond all reasonable controversy, there is no accounting for testimony to the contrary, except upon the theory of mistake or willful false swearing, and in such circumstance the more positive and definite the testimony the greater the indication of fault, greater than can be reasonably attributed to mere mistake. In such a case, regardless of the amount of evidence from the mouths of witnesses, there is no conflict to be solved by a jury, because no just verdict can ever be rendered contrary to all reasonable probabilities.” Marshall v. Railroad Co., 125 Wis. 96, 100, and cases cited.

The facts in this last case are very similar to those in the case at bar, the material difference being the greater distance from the track the view was unobstructed. This case can be, and is, determined upon the testimony of plaintiff’s husband, without taking into consideration all of the other corroborating testimony in the case upon the physical conditions as to the view at the crossing. With the unobstructed yiew of at least 40 rods, and, from his testimony, probably much farther, at a point where from his familiarity with the crossing he must have known he could get this view, we cannot say, as was said in the case of Hintz v. Railroad Co., supra, he had a very limited opportunity to discover the approaching train. He would have seen the train had he used ordinary prudence and caution and avoided the accident. Not to do so was negligence, and his negligence must be imputed to the plaintiff.' The court erred in not instructing a verdict for defendant. This disposes of All the other errors assigned in the case.

The judgment of the circuit court should be reversed, and a new trial ordered.

Grant and Blair, W.- concurred with McAlvay, J.


author: Moore, J.

text:
    KOCH v. SUMNER.
    Mechanics’ Liens — Bill to Foreclose — Cross-Bill — Right to Maintain — Equitv .
    On a bill to foreclose a mechanics’ lien the defendant may maintain a cross-bill to recover the damages sustained by claimant’s failure to perform according to contract; that there is no express authority for such procedure in the lien law is immaterial, the authority being incident to the jurisdiction in such cases and flowing from the general power of equity to settle all disputes between the parties relative to a. subject-matter of which it has jurisdiction.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 6, 1906.
    (Docket No. 17.)
    Decided July 23, 1906.
    Bill by John Koch and Christian Koch, copartners as Koch Brothers, against May B. Sumner, and others, to enforce a mechanics’ lien. Defendant Sumner filed an answer in the nature of a cross-bill asking for an accounting. From an order overruling a demurrer to the cross-bill, complainants appeal.
    Affirmed.

      Arthur Brown and Edson JR. Sunderland, for complainants.

      A. J. Sawyer & Son, for defendant Sumner.
   Moore, J.

Complainants seek by bill to foreclose a mechanic’s lien for the making of improvements and repairs upon the defendant’s dwelling house. The bill prays:

First, for an accounting; second, a lien upon the property for the amount found due; third, a decree against defendant May B. Sumner, and sale of the property upon default of payment; fourth, in case of sale, that all persons claiming through or under the defendant after the commencement of suit shall be forever barred; fifth, for other and further relief.

The defendant answered charging failure to perform the contract and damages accruing by reason thereof, and alleges the payments of $191.70 and $50 more than complainants credited her; denies most of the claim for extras; denies that anything is due to the complainants, and, by cross-bill, charges that she was presented with a plan showing additions, alterations, and improvements which she desired made, with specifications and drawings, which formed a part of the contract, and also a written contract which she signed; charges a failure of complainants to complete the contract, by reason of which she suffered damages, stating them at length, and prayed for relief as follows: (a) That the complainants shall come to a just and fair accounting with this defendant for each and every failure to conform with the provisions of their said contract, plans, drawings, and specifications, and that the just amount due to this defendant from the said complainants by reason of such failure shall be ascertained and a decree rendered in her favor against said defendants theréfor; (6) that the bill of complaint in this ease shall be dismissed with costs to this defendant. Then followed a prayer for general relief.

The complainants demurred to the cross-bill, for the reason that the answer in the nature of a cross-bill is not authorized by the lien law, in that the defendant seeks thereby to recover a decree against the complainants for damages, which she alleges she has sustained in excess of the complainants’ demand. The court overruled the demurrer, and the case is brought here by appeal.

Counsel say:

The rights of parties in actions to enforce mechanics liens are created by statute, and no proceedings unauthorized by the statute can be had in actions brought thereunder. As this court has said in Sterner v. Haas, 108 Mich. 489:
“ ‘ The lien law is in derogation of the common law, and all rights under it are statutory, and cánnot be extended beyond the provisions of the statute.’
“ Hence, to determine the propriety of the cross-bill filed herein, it is necessary to look at the statute. The only provision in the lien law, authorizing the court to render a personal decree of any kind, is section 14, which is section 10723 of Miller’s Compiled Laws, and it reads as follows:
“ ‘Upon final decree the court may order a sale of the buildings or machinery separate, or the lands, buildings, machinery, structure or improvements, together, by a 'circuit court commissioner or receiver, or may order the property into the hands of a receiver to be leased or rented from time to time under the direction of the court until the liens shall be discharged, or make such other order or disposition of the premises as justice may require. If upon the coming in and confirmation of the final report any portion of the liens shall still be unpaid, the court may enter personal decree for the same against the party who may be personally liable therefor, and execution shall issue for the same as upon other personal decrees rendered by the court.’
‘ ‘ This statute authorizes no personal decree whatever except a decree for a deficiency in favor of the contractor, subcontractor or materialman, and authorizes this only after the property has been exhausted. The proceeding under the lien law is primarily a proceeding in rem, to charge certain specific property with the debt. The debt being proved by the lien claimant, the court must proceed against the property by ordering a sale or other suitable disposition thereof; and it is only after such resort to the property, and after exhausting the remedy as a proceeding in rem, that a decree in personam can be made. Unless the complainant can show a valid claim against the property as such, he has no standing in court.”

It is then argued that, as the statute does not authorize a decree in favor of defendants, the cross-bill cannot be entertained, citing cases.

The question involved has never been directly before this court. A case quite in point is Springfield Milling Co. v. Manufacturing Co. 81 Fed. 261. We quote from the opinion as follows:

‘ ‘ The office of a cross-bill is either to warrant the grant of affirmative relief to the defendant in the original suit, to obtain a discovery in aid of the defense in that suit, to enable the defendant to interpose a more complete defense than that which he could present by answer, or to obtain full relief to all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The fact that the cross-bill fairly tends to accomplish either of these purposes is generally a sufficient ground for its interposition. It must seek equitable relief; but, subject to this qualification, a complainant who has brought a defendant into a court of equity in •order to subject him to an adjudication of his rights in a certain subject-matter cannot be heard to say that there is no equity in a cross-bill which seeks an adjudication of all the rights of the parties to the original suit in the same subject-matter. The issues raised by the cross-bill must be so closely connected with the cause of action in the •original suit that the cross-suit is a mere auxiliary or dependency upon the original suit, but subject to this qualification, new facts, and new issues may properly be presented by a cross-bill. Story on Equity Pleadings, §§ 398, 399; 1 Beach on Modern Equity Practice, §§ 433, 435; Carnochan v. Christie, 11 Wheat. (U. S.) 446; Cross v. De Valle, 1 Wall. (U. S.) 5; Ayres v. Carver, 17 How. (U. S.) 591, 595; Meissner v. Buek, 28 Fed. 161, 163; Chicago, etc., R. Co. v. Third Nat. Bank, 134 U. S. 276; Davis v. Christian Union, 100 Ill. 313; Cartwright v. Clark, 4 Metcx. (Mass.) 104; Derby v. Gage, 38 Ill. 27; French v. Griffin, 18 N. J. Eq. 279; Graham v. Berry-man, 19 N. J. Eq. 29; Wickliffe v. Clay, 1 Dana (Ky.), 585, 589; Allen’s Ex’r v. Boll, 25 N. J. Eq. 164; King v. Insurance Co., 45 Ind. 43. Thus, in a suit to cancel deeds made to secure a debt, the defendant may maintain a cross-bill to reform the deeds, and to foreclose the mortgage which they evidence. Camochan v. Christie, 11 Wheat. (U. S.) 446, 466. If an original bill is filed for specific performance of a contract, the defendant may properly exhibit a cross-bill for the surrender and cancellation of the agreement. Cross v. De Valle, 1 Wall. (U. S.) 5, 14; Meissner v. Buek, 28 Fed. 161, 163. Where a suit in equity is instituted to vacate or set aside á lien upon property by judgment, mortgage, or otherwise, the defendant may maintain a cross-bill to establish and foreclose the lien. Railroad Cos. v. Chamberlain, 6 Wall. (U. S.) 748; Chicago, etc., R. Co., v. Third Nat. Bank, 134 U. S. 276, 287, 288. The converse of this proposition is equally true. When an original suit is brought to «establish and foreclose a lien upon the property of the defendant, he may properly exhibit a cross-bill in that suit for the avoidance of the lien, and the cancellation and discharge of the record of it, which clouds his title. Graham v. Berryman, 19 N. J. Eq. 39; Wickliffe v. Clay, 1 Dana (Ky.), 589. This is the case which this record presents. The appellee filed in the proper public office a claim of a lien upon the property of the appellant for more than $5,000 on account of materials it had furnished and services it had rendered in remodeling the appellant’s mill, pursuant to a contract between the parties. It then brought this suit to establish and foreclose that lien. The appellant exhibited its cross-bill in that suit for the cancellation of that lien and its discharge of record- The allegation of the existence of the mechanic’s lien and the prayer for its foreclosure constitute the only ground for-equitable relief presented by the original bill. The alie- ■ gations of the cross-bill that the debt claimed in the recorded statement of the lien did not exist; that the appellee was a nonresident of the State of Missouri, and without the jurisdiction of the court; that it had so failed to fulfill the guaranties of its contract that the mill it remodeled was worth $10,000 less than it would have been if the contract-had been complied with; that the appellee had wasted wheat of the appellant worth $3,000 in useless experiments with its plansifters, and had racked and weakened the walls of the mill — together with its prayer that the pretended lien might be canceled and discharged of record, certainly presented equities much stronger than those exhibited by the original bill, and brought the cross-bill within the established precincts of equity jurisdiction. The owner of property may always maintain a suit in equity to clear-the record of its title of invalid liens that apparently cover it, and there is much stronger .reason for permitting him to do so by a cross-bill when the holder of the pretended, lien has sued him to enforce it. It is idle to argue that, this appellant had an adequate remedy at law for the wrongs it pleads in the cross-bill. It could obtain no decree of cancellation of the lien upon its property at law. It could not even maintain an action at law until it followed the appellee beyond the jurisdiction of the court of' its residence into the State of Illinois. Does equity require a defendant who has a defense, counterclaim, or set-off, to pay a debt secured by a lien upon its property to sit quietly by and see the lien foreclosed and his property sold because he can enforce his claim against the complainant in an action at law in another jurisdiction ? The remedy at law which precludes relief in equity must be ‘ as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.’ Boyce’s Ex’rs v. Grundy, 3 Pet. (U. S.) 210, 215; Oelrichs v. Spain, 15 Wall. (U. S.) 211, 228; Preteca v. Land Grant Co., 1 C. C. A. 607, 610; Foltz v. Railway Co., 8 C. C. A. 635, 641; Hayden v. Thompson, 17 C. C. A. 592, 594. Would an action at law against the appellee in the State of Illinois, in addition to the suit in equity brought by the appellee in the State of Missouri, be as practical and efficient for the prompt administration of justice between these parties as the presentation and adjudication of all the controversies between them growing out of the contract in the single suit which the appellee brought in Missouri ? These questions are susceptible of but one answer.
“It is urged that the only claims presented by the cross-bill that were not pleaded in the answer of the appellant to the original bill were those for the waste of the wheat, and the injury to the walls of the mill; that these could not be considered in equity, and hence the cross-bill was properly dismissed. The answer is: (1) The cross-bill repleaded the defenses in the answer and prayed for affirmative relief — the cancellation of the record of the lien. Those defenses, if sustained, warranted that relief, regardless of the claims for damages for the waste of the wheat and for injury to the walls of the mill, and a cross-bill which warrants affirmative relief upon the same facts pleaded as a defense in the answer to the original bill is well founded. (2) The statutes of the State of Missouri provide that in any civil action, whether at law or in equity, a defendant may plead and prove as a counterclaim any cause of action, whether legal or equitable, which arises out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim. Eev. Stat. Mo. 1889, §- 2050. Under this provision of the statutes, a counterclaim for damages for injuries to property in the performance of services may be maintained in an action for their price or value. Emery y. Railway Co., 77 Mo. 339, 346. If the appellee had brought this suit in one of the State courts of Missouri, the appellant’s Claim for wasted wheat and damage to the walls of its mill could have been pleaded and provedas a counterclaim. One of the grounds of jurisdiction in equity is the prevention of a multiplicity of suits. The court below, sitting in equity, had taken jurisdiction of the parties and of the subject-matter of this action for a necessary purpose — for the purpose of determining the validity of the lien claimed, and of enforcing or canceling it. No reason occurs to us why that court could not have heard and determined the appellant’s claims for wasted wheat and for injured walls as well as any court of law in the State of Illinois. It was not necessary to a just determination of those claims to compel the appellant, who had been summoned into that court to answer the claim of the appellee for the performance of this contract, to commence and prosecute an action at law in the State of Illinois to recover its damages for the incomplete or negligent fulfillment of the terms of the same contract. It is the province and the duty of a court of equity, which has properly acquired jurisdiction of a subject-matter for a necessary purpose, to proceed and do final and complete justice between the parties, where it can as well be done in that court as by proceedings at law. Tayloe v. Insurance Co., 9 How. (U. S.) 390, 404; Illinois Trust & Savings Bank v. Arkansas City, 22 C. C. A. 171. The cross-bill, therefore, should not have been dismissed without a hearing of the issues it.presented, and the claims pleaded in it should have been considered and decided upon their merits. It prayed for affirmative equitable relief that was warranted by its allegations, and it enabled the court to grant full relief to all the parties to the original suit, and to completely determine all the controversies which árose out of the matters charged in the original bill, while this could not have been done upon a hearing of the issues presented by the answer.”

We have not overlooked the suggestion of counsel that:

“ The Missouri lien law makes actions to enforce mechanics’ liens identical with ordinary civil actions (Rev. Stat. 1899, § 4210), and the Missouri code of civil procedure has abolished all distinctions between actions at law and suits in equity (Rev. Stat. 1899, § 539).”

A reading of the opinion will show however that it did not go 'off upon that point but upon the general proposition that it is the duty of a court of equity which has properly acquired jurisdiction of the subject-matter, and of the parties to do final and complete justice in relation thereto. This is no new doctrine in this State. It was announced as long ago as Whipple v. Farrar, 3 Mich. 436. See, also, Miller v. Stepper, 32 Mich. 194; Wallace v. Wallace, 63 Mich. 326; Drayton v. Chandler, 93 Mich. 383; In re Axtell's Petition, 95 Mich. 244; George v. Electric Light Co., 105 Mich. 1; McLean v. McLean, 109 Mich. 258. In Convis v. Insurance Co., 127 Mich. 616, the doctrine was restated by Justice Grant as follows:

“ When a court of equity has jurisdiction for one purpose, it may retain jurisdiction to settle all disputes relating to the same subject-matter between the parties to the suit.”

The complainant having brought the parties and the subject-matter into the chancery side of the court, we can see no good reason why all the questions in dispute between the parties in relation to the subject-matter should not be finally settled.

The decree is affirmed, with costs.

Carpenter, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


text:
    ALLEN v. BAINBRIDGE.
    1. Negligence — Fires—Care Required.
    In an action for damages sustained by reason of fire being negligently permitted to escape from defendant’s premises, instructions examined, and held, to properly state the degree of care required of one setting out fires and in controlling them.
    2. Same — Double Damages.
    In an action for double damages for negligent fire under section 11653, 3 Comp. Laws, the court properly doubles, and renders judgment for double, the actual damages found by the jury.
    3. Eminent Domain — Taking without Compensation — Double Damages — Constitutional Law — Negligent Fires.
    Section 11653, 3 Comp. Laws, providing double damages for injury from negligent fire, is not unconstitutional as taking the .property of one person and giving it to another without compensation, but is a mere recognition of the right to compensation for an injury.
    4. Constitutional Law — Unusual Punishment — Fire — Negligence-Double Damages.
    Section 11653, 3 Comp. Laws, providing double damages for injury from negligent fire, is not unconstitutional as inflicting unusual punishment.
    5. Statutes — Implied Repeal — Negligence — Fires — Double Damages.
    Section 11653, 3 Comp. Laws, providing double damages for injury from negligent fire, is not repealed by Act No. 249, Pub. Acts 1903, providing for the preservation of the forests of the State and for the prevention and suppression of forest and prairie fires, notwithstanding it repeals all inconsistent acts and parts of acts, it expressly providing that nothing therein shall be construed as affecting any right of action for dam-
    Error to Chippewa; Steere, J.
    Submitted June 6, 1906.
    (Docket No. 27.)
    Decided July 23, 1906.
    Case by John D. Allen against Jacob Bainbridge for damages done by fire. There was .judgment for plaintiff for double the amount of damages under section 11653, 3 Comp. Laws, and defendant brings error.
    Affirmed.

      Lanning & McMahon, for appellant.

      Doig & Doig, for appellee.
   Moore, J.

This action was brought for the recovery of damages sustained by the plaintiff by the burning of a barn and other property belonging to him, by fire which passed from the premises of the defendant to those of the plaintiff. The plaintiff recovered a verdict and judgment. The case is brought here by writ of error.

It was the claim of plaintiff that defendant, without taking any precautions to control the fire, set one out on the premises adjoining to his at a time when it was not reasonably prudent to do so, and negligently permitted it to escape to the premises of the plaintiff. The defendant claims that the damage was occasioned by the springing “up suddenly of a strong wind, and for that reason he is not liable. Each party gave testimony tending to support his theory of the case.

Error is assigned because the judge did not give defendant’s second and third requests to charge. These requests referred to the subject of defendant’s negligence. They were not correct statements of the law. The judge charged the jury:

“ Taking up the question of negligence it is said to be a failure on the part of a person to observe, for the protection of another’s interest, such care and precaution and vigilance as the circumstances justly demand, and the want of which causes the injury. And so it was the duty of Mr. Bainbridge, while setting fire and burning rubbish on his own premises, to exercise the usual precaution which a prudent man, under like circumstances, having a knowledge of the facts as they existed, and knowing the danger, would and should exercise and use. Now that is a question of fact for the jury. In passing upon that you are to take into consideration all the facts and circumstances proven, the place where the fires were set, the extent of the fires, the nature of the material which the fires were set in, and which they were liable to reach, the condition and force of the wind, the proximity of the premises of his neighbors, and of the buildings of his neighbors, and of the combustible material around them; all those are questions for you. Whether or not it was careless under the circumstances to set this fire and to allow it to escape as it did, is a question which the court cannot decide, and which the jury are called upon to decide. The burden of proof in this case upon those issues is upon the plaintiff. In order to recover the plaintiff must satisfy you by a preponderance of evidence that this fire was negligently allowed to escape from the premises of Mr. Bainbridge to the premises of the plaintiff, and must satisfy you by a preponderance of evidence, if there was negligence, and if you come to that question, what damages were suffered.”

This charge properly presented that phase of the case. See Richter v. Harper, 95 Mich. 221, and cases cited; Bolton v. Calkins, 102 Mich. 69; Brown v. Brooks, 85 Wis. 290 (21 L. R. A. 255).

Error is assigned because the court doubled the damages found by the jury, counsel insisting this was a matter of discretion, and as the defendant intended no barm, the judge should not have doubled the damages. Section. 11653, 3 Comp. Laws, reads:

“Every person who shall willfully or negligently set fire to any woods, prairies, or grounds not his own property, or shall willfully or negligently permit any fire to pass from his own woods, prairies, or grounds, to the injury or destruction of the property of any other person, «ball be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both, in the discretion of the court; and shall also be liable to the party injured in double the amount of damages sustained.”

This statute was construed in Rosevelt v. Hanold, 65 Mich. 414, and a similar statute in Swift v. Applebone, 23 Mich. 252; Trompen v. Verhage, 54 Mich. 304; and Fye v. Chapin, 121 Mich. 675. These opinions justify the course taken by the circuit judge.

It is said the law is unconstitutional because it takes the property of one person and gives it to another' without any compensation. It is a sufficient answer to this argument to say that the statute recognizes that where one has been damaged by the negligent act of another, compensation should follow. It is said the statute inflicts unusual punishment, and for that reason is in violation of the Constitution. The legislature recognized for a long time that much mischief is done by the wrongful or negligent use of fire. It is part of the history of the State that vast portions of it have been devastated by forest fires, resulting in the destruction of much valuable property, and the loss of many lives. It cannot be said that to one who makes a negligent use of this dangerous element, the statute inflicts an unusual punishment. The statute has been in existence for 60 years. It has frequently been before the courts. We see no adequate reason now for holding it unconstitutional.

It is said the statute is repealed by Act No. 249, Pub. Acts 1903. That act is entitled:

“An act to provide for the preservation of the forests of this State and for the prevention and suppression of forest and prairie fires.”

It nowhere in terms refers to section 11653, 3 - Comp. Laws, though section 19 does provide:

“All acts and parts of acts inconsistent with this act are hereby repealed.”

Section 14, however, provides:

“Nothing in this act shall be construed as affecting any right of action for damages.”

It is clear that if it were not for this act the plaintiff would have a right of action for damages under section 11653, 3 Comp. Laws. Inasmuch as the act provides that its enactment shall not affect any right of action for damages, we think it cannot be said it takes away such right of action.

Judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author: Carpenter, O. J.

text:
    LANG v. OSCEOLA CONSOLIDATED MINING CO.
    1. Adverse Possession — Color of Title — Possession of Part— Extent of Possession.
    Continued occupation during the statutory period of some part of a tract of land to which the occupier has color of title by a written instrument, no other person being in adverse occupancy of any part of the tract, confers title by adverse possession to the entire tract.
    2. Tenancy in Common — Creation of Tenancy — Deeds—Effect.
    A person owning one-fourth of a tract of land under a properly recorded deed, and the remaining three-fourths under an unrecorded deed, conveyed the whole thereof by deed which remained unrecorded for many years, during which time defendant, after acquiring by quitclaim the apparent title of the heirs of the original owner to the three-fourths, brought partition proceedings against plaintiffs, the heirs of the apparent owner of the one-fourth interest, purchased at the sale, and paid them for that interest; subsequently plaintiffs took a deed from the grantee under the unrecorded deed, caused all deeds to be recorded, and brought ejectment against defendant. Held, that the claim that defendant and plaintiffs’ immediate grantor were tenants in common and that defendant’s possession was not adverse to plaintiffs’ title was not tenable, since the unrecorded deed to plaintiffs’ grantor purported to and did convey the entire estate and could not be said to convey the interest acquired by the unrecorded deed and not that acquired by the recorded deed.
    Error to Houghton; Streeter, J.
    Submitted June 8, 1906.
    (Docket No. 67.)
    Decided July 23, 1906.
    Ejectment by Annie S. Lang, John Abner Sherman, and Rosa Sherman against the Osceola Consolidated Mining Company. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.

      • P. H. O’Brien (G. JR. Brown and B. T. Looney, of ■counsel), for appellants.

      Ball & Stone (Louis Marshall, of counsel), for appeh lee.
   Carpenter, O. J.

This is an action of ejectment to recover an undivided three-fourths interest of the S. W. i of section 5, township 56 N., of range 32 W., in the county of Houghton, in this State. One Alfred Williams was the original owner of this property. On October 31, 1859, by warranty deed he conveyed an undivided one-fourth interest to Abner Sherman. (Abner died in 1863. He was the husband of plaintiff Rosa and the father of the other two plaintiffs.) This deed was at once recorded in the office of the register of deeds for the county of Houghton. On the 27th of July, 1860, said Williams conveyed to said Sherman an undivided three-fourths interest in said land. This deed was recorded in the county of Ontonagon on the 18th of September, 1860, and was not recorded in the county of Houghton until the 21st of July, 1899. On the 8th of November, 1862, said Abner Sherman executed a quitclaim deed conveying the whole of said land to George O. Jones. This deed was recorded in the county of Ontonagon November 10, 1862, and was not recorded in the county of Houghton until January 8, 1900. On the 6th of January, 1900, George O. Jones and wife by quitclaim deed conveyed this land to plaintiffs. The foregoing is, plaintiffs’ chain of title.

We will now state defendant’s chain of title. December 24, 1867, after the death of Alfred Williams, his son, James A. Williams, by quitclaim deed, conveyed the undivided three-fourths of said land to E. N. Wilcox. This deed was at once recorded in Houghton county. On the 19th of November, 1868, Wilcox by warranty deed, reciting the consideration of $1, conveyed this undivided three-fourths interest in said land to Elisha T. Loring, trustee. This deed was at once recorded in Houghton county. July 12, 1875, Elisha T. Loring, trustee, by quitclaim deed conveyed said undivided three-fourths interest in said land to the Kearsarge Mining Company, a Michigan corporation. This deed was at once recorded in Houghton county. Shortly after said interest was deeded to the Kearsarge Mining Company, that company instituted in the circuit court for the county of Houghton, in chancery, a partition suit against the three plaintiffs in this case, therein alleging that it, said Kearsarge Mining Company, owned a three-fourths interest in said land and the plaintiffs the remaining one-fourth. A decree was entered in this suit declaring the ownership in said land to be as averred in the bill of complaint (it will be observed that this corresponded with the record in the office of the register of deeds for the county of Houghton) and ordering the premises to be sold and the proceeds divided. In accordance with this order the land was sold at public auction by a circuit court commissioner. At that sale the Keasarge Mining Company became the purchaser. The purchase price was $4,000. This was duly paid and divided, plaintiffs receiving $1,000. The commissioner conducting this sale in pursuance of the order of the court executed and delivered to the said Kearsarge Mining Company a deed of the entire of said premises, dated March 18, 1878. This deed was recorded in Houghton county March 20, 1878. On the 28th of October, 1897, the Kearsarge Mining Company deeded said land to defendant. This deed was recorded November 3, 1897, in Houghton county. For many years prior to the commencement of this suit defendant and its grantor, the Kearsarge Mining Company, was in possession of this land. The facts respecting this possession are stated in plaintiffs’ brief as follows :

“ (a) There was a log house built on the premises in dispute in 1877. It occupied a piece of ground about the size of an ordinary village lot, and said house was occupied continuously by the tenants of the defendant or their predecessors in title, from that time until the commencement of this action on April 25, 1902.
“(b) For five months in 1883, the Kearsarge Mining Company and the predecessors in title of defendant were engaged in exploring and sinking pits in said premises.
“ (c) One Bollmann, in the employ of said Kearsarge Mining Company, was cutting timber on said premises in 1886, 1887, 1888, and 1889.
“(d) There was no further work of any kind done until 1898 when the Kearsarge Mining Company began to sink No. 3 shaft on said premises.
“ (e) Ever since 1898, the Kearsarge Mining Company or the defendant has conducted mining operations on said premises and made improvements incident thereto.
“ (/) That the Kearsarge Mining Company paid all the taxes assessable upon and against the entire of said land from the 15th of March, 1878, to October 28, 1897, and since then the defendant has paid the taxes.”

It should also be stated that during this time no part of the land has been in the adverse possession of any other person. The trial court directed a verdict in defendant’s favor upon the ground that defendant had acquired title by adverse possession. Plaintiffs ask us to reverse the judgment entered on said verdict.

If the Kearsarge Mining Company was not a tenant in common with plaintiffs’ grantor, Jones, we think it clear that the latter’s title has been extinguished by adverse possession. The commissioner’s deed executed in pursuance of the order of the court in the partition suit gave color of title to'the whole of said land. During the entire time that has elapsed since that deed was executed until this suit was commenced (24 years) defendant or its grant- or has been in actual occupancy of a part of the land, and no one has been in adverse occupancy of any part of it. The principle of law controlling this case is clearly and correctly stated by the supreme court of Minnesota, speaking through Mitchell, J., as follows:

“The general doctrine of the courts in the United States is that where the occupant, or those under whom he claims, enter into possession under claim of title, founding such claim upon some written instrument as being a conveyance of the premises in question, and there has been continued occupation of some part of the land included in such conveyance, he or they will be deemed to have been in the adverse possession of the whole of such, premises if not in the adverse possession of any one else.”' Murphy v. Doyle, 37 Minn. 113.

This case was distinguished in Turner v. Stephenson, 72 Mich. 409 (2 L. R. A. 277); and approved in Clark v. Campau, 92 Mich. 573. See, also, Fuller v. Swensbergy 106 Mich. 305; Millerd v. Reeves, 1 Mich. 114.

But plaintiffs contend that “ George C. Jones was a tenant in common” of defendant and its grantor, and. that “whatever possession the defendant (and its grantor) had will not be presumed to be adverse as against him.” There is no force to this contention unless there was a tenancy in common. The ground of plaintiffs’ contention that there was such a tenancy is this, viz., that the only title defendant has to the land in controversy is that acquired by the commissioner’s deed in the partition suit (they claim that according to Peters v. Cartier, 80 Mich. 124, the earlier deeds did not cut off the title conveyed by the unrecorded deed to Sherman, which was by him transferred to Jones), and that this deed conveyed the undivided one-fourth of the land, then standing of record in the name of Abner Sherman, to defendant, and that the remaining three-fourths of the land was owned and continued to be owned by Jones and his grantee. We think this contention unsound. Abner Sherman, at the time he deeded to Jones, owned the whole of the land in controversy. Sherman’s deed to Jones purported to convey the whole of said land. We must deny plaintiffs’ contention that this deed would convey the interest acquired by the unrecorded deed and would not convey the interest acquired by the recorded deed. It conveyed the whole of said land. If Jones’ title was not cut off by the sale under the partition proceedings (and if it was plaintiffs cannot recover), he continued to own the whole of said land. His interest was never that of a tenant in common and it cannot, for that reason, be claimed that the possession of defendant and its grantor was not adverse. The trial court correctly decided that defendant had acquired a title by adverse possession.

The judgment is affirmed.

McAlvay, Blair, Ostrander, and Moore, JJ., concurred.