author: Blair, J.

text:
    RICKELS v. LOG-OWNERS’ BOOMING CO.
    1. Adverse Possession — Riparian Rights.
    In order to sustain a claim of riparian right by prescription, the claimant must show an exclusive enjoyment of the water, substantially in the way claimed, by claimant or his grantors, adverse to the right of defendant, and without interruption, for a period of at least 15 years.
    3. Waters and Watercourses — Obstructions — Booming Companies — Damages to Crops — Pleading—Variance.
    A count against a booming company for damages for injury to crops of a riparian proprietor by flooding, examined in .connection with the evidence introduced thereunder, and held, that there was a material variance justifying an instruction for defendant as to that count.

      3. Same — Liability op Booming Company — Acts op Predecessors.
    Where, in an action against a booming company for damages by flooding, plaintiff, by his declaration, limits himself to the positivp wrongful acts of defendant, makes no complaint of any acts of omission, and does not allege that defendant was guilty of continuing unlawful obstructions, it is not error to instruct that defendant is not responsible for the acts of its predecessors, but only for its own acts.
    4. Same — Closing Artificial Channel.
    The court may properly instruct, in such a case, that defendant had a right to close any artificial openings, basins, or channels, provided that it did not by such acts crowd the natural channel so that it could not have its ordinary free flow to the lake.
    5. Same — Actions—Issues.
    Where plaintiff in an action for flooding does not sue as a riparian proprietor, but his complaint is for an obstruction of his drain by positive acts of defendant beginning in 1901, it is immaterial whether the river prior to 1893 flowed naturally in a stream of a certain width.
    ■6. Same — Liability—Instructions.
    In such case the jury are properly instructed that plaintiff is entitled to recover if defendant crowded the natural channel or changed or obstructed the natural flow of the water so as to impede or hinder the natural drainage of plaintiff’s land, and thereby injure his crops.
    Error to Muskegon; Russell, J.
    Submitted January 6, 1905.
    (Docket No. 27.)
    Decided February 27, 1905.
    Case by Ebel Rickels against the Log-Owners’ Booming Company for damages for - flooding plaintiff’s land. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    The plaintiff is the owner of certain lowlands lying on either side of Four-Mile creek, a small stream that flows into the Muskegon river a short distance above Muskegon Lake. The creek before it reaches the river expands into a small lake, known as Peck’s or- Sanford’s Bayou, which empties into the river about a mile from plaintiff’s land through an outlet some 30 feet in width. In its natural state the creek was very crooked, and ran along in the center of the valley which it drains between bluffs from 40 to 50 feet high; the width of the lowland between the bluffs being from 30 to 30 rods.
    Just at the lower or west line of his land plaintiff built a roadway running entirely across the lowland from highland to highland; the only opening being that left for the o creek. The creek coming from above strikes this roadway at about the middle line of the lowland where it has been diverted from its original course through the center of the valley, and runs along the upper side of the roadway until it reaches the south bank or bluff. It then runs along the line of the bluff some 60 rods, where it is diverted towards the center of the valley and continues its original course» Along the west line of the land adjoining Rickels is a similar embankment, and still farther down the stream is another roadway, each about a foot higher than the adjacent land, and extending entirely across the valley with openings for the creek.

      The lands of plaintiff along the creek are adapted to the raising of celery, which plaintiff had grown upon the lands for five years prior to 1901 without detriment from water thereon. The land was quite low and swampy, and, in order to fit it for the cultivation of celery, the creek bed was lowered 2 or 3 feet, and the land was ditched, and the muck taken from the ditches, thrown upon the land, and spread so as to raise the surface of the soil. The ditches run into the creek, the current of which continued to flow during the entire period covered by the suit.
    In 1901 the water in the creek and in the land rose gradually until it was about 4 inches higher than in the preceding year. The water continued to rise at the rate of 4 inches a year during the ensuing two years, so that in the summer of 1903 it stood from 12 to 15 inches higher than in the summer of 1900.' The result of this rise of the water was to seriously injure plaintiff’s crops of celery, and he brings this action to recover his damages for such injuries; alleging that defendant was responsible for the rise of the water, through its conduct of its operations in running logs down the Muskegon river.
    Defendant contended, and gave evidence tending to show, that during the years 1902 and 1903 there was an exceptional rainfall, and that the waters in the Muskegon marsh, in Muskegon Lake, and in Lake Michigan were all unusually high.
    The Muskegon river has been used for many years for the driving of logs. The first corporation organized for that purpose was the Muskegon Booming Company, which was incorporated in 1864. In 1894, on the expiration of the charter of the Muskegon Booming Company, a new corporation was organized under the corporate name of the Muskegon River Booming Company, which operated for about one year. In 1895 the defendant was incorporated, and leased the property and rights of the MuskegonRiver Booming Company, and used them in its business; commencing operations in October, 1895.
    The Muskegon river, through that portion of Muskegon county involved in this case, flows through an extensive marsh, and has many outlets and channels, through which the water flows from the river into the marsh, and so into Muskegon Lake. For the purpose of facilitating the floating of logs down the river, the Muskegon Booming Company at an early day made certain improvements, extending some miles up the river. They constructed dikes at various points to straighten and confine the channel, and dredged out and deepened the channel, and made sorting and rafting and coupling basins. About the year 1879 they began the making of a sorting basin, commencing a little above Peck’s Bayou, and extending down below the railroad bridge. The river bed opposite the bayou was dredged out and widened to a width of about 150 feet, with the channel next to the south bank, through which the bayou discharged the waters of Four-Mile creek. The company dredged out the entire width of the basin to a depth sufficient to float the logs and enable the men to handle them. Every year the company sent its dredge in, and cleaned the basin and channel out to a depth that would allow the proper sorting and driving of the logs. The use of this sorting basin having become unnecessary through the diminished supply of logs, the company in 1893 ceased to dredge it out and abandoned it. From that time on that part of the river, partly through natural causes and partly through the acts of defendant’s predecessors, gradually filled up, leaving the original channel open for the water to pass down on the south side. As the old sorting ground filled up, the action of the river current formed, out of the sand, bark, and other debris that came down, a bed along the north side of the channel. In order to prevent this bed or bank from washing away, the Muskegon Booming Company, and afterwards the defendant, placed brush along the bed or bank, trailing downstream, and forming a dike down to below the railroad bridge, substantially parallel to, and from 30 to 50 feet from, the south bank at Peck’s Bayou. At a point a short distance above Peck’s Bayou defendant constructed a wing dam of brush and other materials, extending from near the dike to the north bank of the sorting basin, which prevented the water flowing through a cut excavated by a dredge by its predecessors. Defendant also put in a brush dam at a point between the railroad bridge and the highway bridge to cut off another dredged channel. Neither of these brush dams extended out into the south or original channel. Some time from 1878 to 1882 the Muskegon Booming Company cut a channel through the marsh from the Muskegon river, at a point about a half mile above Peck’s Bayou, to a stream known as “ Cedar Creek.” This was an artificial cut made for the purpose of driving logs through Cedar creek into Muskegon Lake, and when open it carried the greater portion of the river. This Cedar creek channel was used by the Muskegon Booming Company for several years, but in the later 80’s was closed by a dam across its upper end, and remained closed till 1895, when it was again opened. The defendant used the Cedar creek channel for two or three years. In the spring of 1899 or 1900 it attempted to close it again, but abandoned its attempts in a few days. In the fall of 1902 it renewed its attempts, but did not complete the work until the spring of 1903.

      James E. Sullivan, for appellant.

      William Carpenter (Nims, Hoyt, Erwin, Sessions & Vanderwerp, of counsel), for appellee.
   Blair, J.

(after stating the facts). .The plaintiff’s declaration contains two counts. In the first count, after certain preliminary recitals, the pleader alleges that:

“Whereas, also, the waters of said Pour-Mile creek flow into a branch of Muskegon river westerly or lower down the river than the land of this plaintiff, and this branch of Muskegon river flows into Muskegon Lake through two channels, known as the north or Blacksmith Shop channel and the south channel; the said north channel being the main channel, and in its natural state it carries the larger volume of water. • The said south channel is an artificial channel, through which the water did not flow unless diverted therein by artificial means. At a point about one hundred rods above the mouth of Four-Mile creek there is a channel or branch leading out of Muskegon river known as the Cedar creek channel, and by far .the larger part of the waters of Muskegon river in its natural state flows through said Cedar creek channel into Muskegon Lake. Only a small portion of the waters of Muskegon river flow through the north c8annel and the south channel, so called, in their natural state; the current of said Cedar creek channel being very strong, and said channel being very deep, in its natural state, and adapted to the running and driving of logs therein.
4 4 For that whereas, also, the said defendant, at the time of the grievance hereinafter mentioned and for a long time previous thereto, has been and is now a corporation engaged in the business of running, driving, and rafting logs in Muskegon Lake, Muskegon river, and its tributary, and it became and was the duty of said defendant to so conduct its business in the natural channels of said Muskegon river and its tributaries so as not to dam, back up, and impede the flow of the water in said Four-Mile creek so as to cause it to stand on the lowland of said plaintiff, and so as to injure his said land, and to cause the same to be sour and worthless, and of little value for the cultivation of celery.
44 Yet, notwithstanding its duty in that regard, the said defendant, contriving and wickedly intending to injure said plaintiff, on, to wit, the 1st day of April, 1901, did construct a dam across the north channel, hereinbefore mentioned, by driving a row of spiles across said channel, filling in said channel in front of said spiles with logs, driftwood, brush, and other substances; and also on, to wit, the day and years last aforesaid, the said defendant constructed a dam across the main channel of Muskegon river at a point about the head of said Cedar creek channel, said dam consisting of two rows of driven spiles across said river, and of logs, brush, driftwood, and dirt placed in the bed of said river between and about said rows of spiles, and has continued to maintain and still maintains said two dams just hereinbefore mentioned, by means whereof the said defendant has caused the greater part of the waters of Muskegon river to flow through said artificial channel heretofore mentioned, and through the channel of that branch of said river into which said Four-Mile creek empties, and thereby has caused the waters of said Muskegon river and the waters of said Four-Mile creek unnaturally to set back and overflow, and flood the lowlands of this plaintiff heretofore mentioned, thereby raising the water on said lands of this plaintiff to a height of, to wit, twelve inches. And by its unlawful construction of the two dams Aforesaid, and by its unlawful continuance of said dams, said defendant has unlawfully kept said lowlands overflowed and unnaturally submerged by water to a depth of, to wit, twelve inches, thereby rendering said lowlands, and the cultivated part thereof, to be greatly soured, cold, and too low for the growing of celery,” etc.

At the close of the testimony the court instructed the jury that there was no evidence in the case to sustain this first count, to which ruling plaintiff duly excepted, and upon which he assigns error in this court. Plaintiff gave no evidence, as to the “ North or Blacksmith Shop Channel,” alleged in the first count to be “ the main channel,” that in its natural state it carries the larger volume of water, as he admits in his brief he did not try “to show whether the river runs on the north side or the south side.” Neither did the plaintiff produce any evidence to maintain his allegation that “the said south channel is an artificial channel, through which the water did not flow unless diverted therein by artificial means.”

The undisputed evidence, however, disclosed that the south channel was the main and natural channel opposite Peck’s Bayou, and the swings of the highway and railway bridges were over this channel, through which the water flowed' unless diverted by artificial means. There was a like failure on the part of the plaintiff to produce evidence tending to show that “ by far the larger part of the waters of Muskegon river, in its natural state, flows through .said Cedar creek channel into Muskegon Lake.” On the contrary, the undisputed evidence showed that the Cedar creek channel was an artificial channel, and that no part of “the waters of the Muskegon river, in its natural state,” flowed through this channel.

The allegation that “defendant constructed a dam across the main channel of the Muskegon river at a point about the head of said Cedar creek channel ” was likewise not sustained by the proofs. The dam in question was constructed across the Cedar creek channel, and not across the main channel of the Muskegon river.

But plaintiff’s counsel contends in his brief that these artificial cuts “by reason of time became endowed with all the rights of law concerning water flowing through natural channels. I think, if the artificial channels were kept open by the other companies so as to drain our land for so long a time as to give us a right by prescription, that the defendant was also bound to keep them open, or at least not to build onto the banks so as to impede the flow of the river.”

In order to sustain the plaintiff’s claim of rights by prescription, it is essential that the evidence should tend to show an exclusive enjoyment of the water substantially in the way claimed by the plaintiff or by his grantors, adverse to the right of the defendant, and without interruption, for a period of at least 15 years. Mathewson v. Hoffman, 77 Mich. 420 (6 L. R. A. 349); Chapel v. Smith, 80 Mich. 100; Kray v. Muggli, 84 Minn. 90 (54 L. R. A. 473).

The evidence falls far short of showing such an adverse, exclusive, and uninterrupted enjoyment as the law requires. The Cedar creek channel was cut through the marsh in 1882. A dam was constructed across its head in the later 80’s, and was maintained there until 1895 — the year when plaintiff purchased his lands on Four- Mile creek. So far as any prescriptive rights in the maintaining of an open channel through the Cedar creek cut were concerned, they were simply inchoate when the dam was constructed, in the later 80’s, and the interruption of their growth prevented their ripening into vested rights. We think there was a material variance between the declaration and the proofs, and that the court was justified in instructing the jury that the plaintiff was not entitled to recover on his first count. Wood v. Rice, 24 Mich. 423; Batterson v. Railway Co., 49 Mich. 184; Macumber v. Booming Co., 52 Mich. 195; Ives v. Williams, 53 Mich. 636; Bolton v. Railroad, Co., 95 Mich. 202.

In the second count of his declaration the plaintiff alleges that, as the owner of the lands on Four-Mile creek, he was—

“Entitled to have the waters from time to time collected and being in and upon the said lands drained and carried away from the same through a certain drain or creek therein called Four-Mile creek, and from thence through Muskegon river and Muskegon Lake into Lake Michigan. Yet the said defendant on, to wit, the 1st day of April, 1901, wrongfully placed large quantities of spiles, earth, rubbish, and other matter so as to obstruct said drain, and wrongfully stopped up and obstructed the said drain, and continued the same so stopped up and obstructed, whereby large quantities of water which from time to time during that time collected, were in and upon the said land of the plaintiff, were obstructed and prevented from running away from the same through the said drain or creek and rivers as they otherwise would have done, and were penned and driven back upon the said land of the plaintiff, and accumulated thereon, and by reason thereof the said land of the plaintiff is rendered wet and swampy and unproductive,” etc.

The court submitted the case to the jury on this count, charging them in the language of plaintiff’s first request to charge, as follows:

‘ ‘ The plaintiff in this cause had the right to have his land mentioned in the declaration drained through Four-Mile creek, so called, Sanford’s Bayou, so called, and Muskegon river, as it was wont to run into Muskegon Lake, and the defendant had no right to change or obstruct the natural flow of the water of Muskegon river past Sanford’s Bayou, or past the place where it entered into Muskegon river, and so as to impede or hinder the natural drainage of the plaintiff’s land; and if you find that the defendant by any artificial means in Muskegon river raised the water so as to injure the crops of celery on the land of plaintiff during the seasons of 1901, 1902, 1903, or any of them, then the plaintiff is entitled to recover.”

The court, however, limited or qualified this instruction, and, plaintiff’s counsel contends, practically abrogated it, by subsequent instructions to the effect that the defendant was not responsible for any of the improvements made or obstructions placed in the river by others, but only for its own acts since 1896; that it had a right to close up any artificial openings from the Muskegon river, and any artificial channels or basins made in that river, provided that it did not crowd the natural channel of the river so that it could not have its ordinary free flow down to the lake; and that all the plaintiff was entitled to was a fair flow of the river in its natural bed.

Plaintiff’s position, as stated in his brief, is as follows:

“ Under the second count of our declaration, we claim we had the right to prove that Four-Mile creek and Muskegon river was a natural drain to our land, and that the defendant obstructed the drain. Now, it is plain from the proofs that from time out of mind up to the year 1893 that the water from Four-Mile creek flowed uninterruptedly into the Muskegon Lake through the Muskegon river channel at least 150 feet wide at the bridge, and that up to the year 1901 the water never had raised on plaintiff’s lands so as to do any damage. Now, the whole Muskegon river was part of the drain, including with it Cedar creek channel; and when this channel was closed off so as to prevent the water flowing out through it, and as the channel in the main river was so narrowed that the water could only pass below Peck’s Bayou in' a stream of about 30 feet wide, where it was to run in 150 feet, there were such artificial obstructions in the drain that we claim they did flood our lands, and we had the right to have the jury consider these artificial obstructions that had been placed there, including the obstructions placed in the Cedar creek channel. * * * That is, the whole artificial impediment placed there prevented the water from flowing out through the Cedar creek channel as it was wont to flow, and through the main river as it was wont to run, made a dam surrounding Four-Mile creek.”

It is not apparent how the acts of defendant’s predecessors could have injured plaintiff, since they were all committed prior to October, 1895, and counsel concedes “that up to the year 1901 the water never had raised on plaintiff’s lands so as to do any damage.” Again, plaintiff’s counsel alleges in his brief: “We showed by the celery planters on the creek that there had never been any trouble of water standing on the land till the year 1901.” Moreover, the plaintiff, by his allegations in the count of the declaration now under consideration, has limited himself to the positive wrongful acts of the defendant. He makes no complaint of any acts of omission on the part of defendant, but solely of acts of commission, and attributes his injuries to such acts. He does not allege that defendant was guilty of continuing unlawful obstructions or damming up artificial channels, but charges it with wrongfully placing large quantities of earth, spiles, rubbish, and other matter so as to obstruct his drain, consisting of Four-Mile creek and Muskegon river. We think the court committed no error in charging the jury that under such a count the defendant was not responsible for the acts of its predecessors, but only for its own acts.

Neither was the court in error in charging the jury that defendant had a right to close up any artificial openings, basins, or channels, provided that it did not by such acts crowd the natural channel so that it could not have its ordinary free flow down to the lake.

We think the court was correct in saying to the jury that all the plaintiff was entitled to was “ a fair flow of the river in its natural bed.” The declaration made the Muskegon river a part of the drain, and this must be held to mean the river in its natural state at the time of the acts complained of. The essence of the complaint is that plaintiff had a drain which properly drained his lands prior to the unlawful interference of defendant, but, owing to the obstructions placed in the drain by defendant in 1901 and afterwards, the drain thereafter ceased to properly drain his lands. The plaintiff does not sue as a riparian proprietor of lands on the Muskegon river, and is not entitled to recover in this case upon the theory of injuries to his rights as such proprietor. His complaint is for an obstruction of his drain by positive acts of the defendant, beginning in 1901, and this necessarily implies an obstruction of the drain as it existed at the time the acts were committed. We think, therefore, that whether the river ‘ from time out of mind, up to the year 1893,” flowed by Peck’s Bayou in a stream 150 feet wide, was wholly immaterial under this second count. We do not find in the evidence, fairly considered, however, any substantial support for plaintiff’s claim that it did so flow, and we think the jury would not have been warranted in finding from the testimony in the case that the river from “ time out of mind ” had flowed naturally at a width of 150 feet past Peck’s Bayou. On the contrary, it was practically undisputed that, when left to itself and affected only by natural causes, the river flowed in the south channel, where it was flowing at the time of the injuries complained of, at a width of somewhere from 30 to 60 feet. But however this may be, the question was fairly submitted to the jury as to whether the defendant by its acts crowded the natural channel of the river so that it could not have its ordinary free flow down to the lake; and the jury were expressly instructed that if the defendant did crowd the natural channel, or changed or obstructed the natural flow of the water of Muskegon river past Sanford’s Bayou, so as to impede or hinder the natural drainage of the plaintiff’s land, and thereby injured his crops of celery, the plaintiff was entitled to recover. This, we think, under any possible view of the testimony, was all that plaintiff was entitled to.

The judgment is affirmed, with costs.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    HALL v. MARSHALL.
    1. Homestead — Widow—Mortgages—Secret Marriage.
    Where the wife of a mortgagor, who was secretly married, and did not join in the mortgage, had not lived on the mortgaged property prior to the execution of the mortgage, she was not entitled to homestead therein as against the mortgagee, who was ignorant of her marriage.
    3. Mortgages —Execution —Wife—Failure to Join — Secret Marriage — Dower.
    Where a mortgagor’s marriage to defendant was concealed without fraudulent purpose, and defendant did not join in the mortgage, such concealment was not a fraud on the mortgagee, so as to deprive defendant of her dower in the mortgaged premises.
    3. Same — Subrogation.
    Where at the time a mortgage was executed by deceased he had contracted a secret marriage with defendant, who did not join in the mortgage, but the proceeds of the loan were used in part to take up two existing valid mortgages, the mortgagee therein was subrogated to the liens of the former mortgages, defendant was entitled to dower in the surplus arising after payment of the amount covered by such prior mortgages and the remainder of the fund belonged to the mortgagee.
    Cross-appeals from Wayne; Hosmer, J.
    Submitted January 19, 1905.
    (Docket No. 90.)
    Decided February 27, 1905.
    Bill by Theodore P. Hall against Kate L. Marshall and others to determine the lien of certain mortgages and for their foreclosure. From the decree rendered, complainant and defendant Kate L. Marshall appeal.
    Affirmed.

      Gray & Gray, for complainant.

      Julian G. Dickinson, for defendant.
   Montgomery, J.

William S. Marshall died intestate April 7, 1903. At this date he was the owner of a house and lot in the city of Detroit worth $5,500, subject to the lien of complainant’s mortgage, which is the subject-matter of this proceeding.

In March, 1882, Mr. Marshall, his wife, Elizabeth, joining, gave to complainant a mortgage for $1,700, covering the house and lot referred to. On April 1, 1885, an additional mortgage was given for $300. On November 10, 1885, the amount d.ue on these mortgages, viz., $2,091.50, was covered by a new mortgage for $4,500, the complainant advancing an additional sum of $2,408.50. Mrs. Marshall having died in 1884, the two last-named mortgages were executed by Marshall alone, he being to all appearances a widower. He, in fact, was a single man at the date of the $300 mortgage, but complainant ascertained for the first time after Mr. Marshall’s decease that he had been married to defendant in September, 1885.

Defendant claiming the premises as a homestead, this bill was filed to have complainant’s lien determined, and for a foreclosure and sale. It was alleged in the bill that in any view of the case, if the mortgage of November 10, 1885, should be held void, the two previous mortgages should be treated as subsisting liens, a proposition so plainly equitable that it appears not to be seriously contested.

The circuit judge decreed a sale, and directed the surplus, over and above the amount due by the terms of the first two mortgages, to be brought into court, that the rights of the contesting parties to the fund be determined. This order was carried into effect, and a surplus fund of $2,032.80 was paid into the hands of the register. The final decree determined that the defendant was entitled to dower rights in this surplus, and awarded her the sum of $506.25 on this account, but denied her claim that the premises were at the date of the mortgage a homestead, and awarded the remainder of the fund to complainant. Both parties appeal.

The complainant contends that defendant acquired no dower rights by her marriage, and defendant, on the other hand, contends that she not only acquired dower rights but homestead rights as well, and that, as a consequence, the mortgage.of November 10, 1885, should be held void. Defendant further contends that, if this is not held, it should be held that her dower rights attached to the entire property, and is not limited to the surplus arising after satisfying existing incumbrances.

The most important question presented is whether at the date of the execution of the $4,500 mortgage the defendant had, as against one accepting in good faith a conveyance or mortgage from her husband, acquired a homestead right in the premises. The evidence is that she had not at the date of this mortgage lived upon the premises. She had never seen them at this time, and did not see them for years afterwards. She continued to reside in Ohio, and for years bore her maiden name. During all the years prior to Mr. Marshall’s death she never visited Detroit but once. This was in June, 1887. On this occasion she stopped at a hotel, but she went with her husband to the house in question, remained for about an hour, during which time the subject of a legal separation or divorce was discussed. She testifies that she then declared to her husband that she intended to remain in the house, but yielded to persuasion and left, returning to her home in Cincinnati. We think these facts bring this case clearly within the holdings in Stanton v. Hitchcock, 64 Mich. 316, and Black v. Singley 91 Mich. 50. The defendant had not, before the date of the mortgage, so occupied these premises as to entitle her to claim homestead rights as against one who was ignorant of her marriage.

The complainant contends that defendant was not entitled to dower, and bases this contention on the claim that the concealment of her marriage operated as a fraud upon the complainant. We do not discover any evidence of a fraudulent purpose, and think the circuit judge correctly held her entitled to dower.

The only question remaining is whether the circuit judge erred in limiting her claim to dower to the surplus over and above the reinstated mortgages. Under the provisions of sections 8920 and 8922, 3 Comp. Laws, it is clear that, had the two first mortgages continued to be subsisting liens, the defendant would be entitled on foreclosure to dower in the surplus arising on a sale on foreclosure only. By the decree of the circuit judge, which we fully approve, these mortgages were reinstated, and we see no reason why the natural and equitable sequence should not be that the dower right acquired by the defendant is that, and that only, which she would have been able to assert had they never been discharged.

The decree will stand affirmed, without costs to. either party.

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


author: Ostrander, J.

text:
    CADILLAC STATE BANK v. WEXFORD CIRCUIT JUDGE.
    Attorney and Client — Authority — Representation op Garnishee — Case Made.
    That the attorney who appears in behalf of a garnishee and excepts to judgment being entered against the garnishee has hitherto acted as attorney for the principal defendant, and is not the regularly retained attorney for the garnishee, a bank, is no reason why the circuit judge should refuse to make a finding of facts and law at the request of such attorney, or refuse to settle and sign a case made on like request.

      Mandamus by the Cadillac State Bank to compel Clyde O. Chittenden, circuit judge of Wexford county, to sign a case made.
    Submitted January 10, 1905.
    (Calendar No. 20,890.)
    Writ granted February 27, 1905.

      D. E. McIntyre (E. F. Sawyer, of counsel), for relator.

      Fred S. Lamb, for respondent.
   Ostrander, J.

The material facts in this matter are that on February 4, 1904, one John L. Rathman recovered judgment in the circuit court for the county of Wexford against Richard H. Tuttle and Len Starks, copartners as R. H. Tuttle & Co., for $166.72 damages and $48.35 costs. This judgment is unappealed from and unsatisfied. On the 1st day of March, 1904, at the suit of the same plaintiff, a writ of garnishment issued out of the same court, directed to the sheriff of Wexford county, against the relator, as garnishee of R. H. Tuttle & Co., the defendants in the principal action. To this writ the cashier of the Cadillac State Bank made disclosure, in which he stated that the books of the bank showed a credit balance in favor of R. H. Tuttle & Co. in the sum of $250; that as to whether that money was the property of Richard H. Tuttle and Len Starks he was not able to state, but says that he is informed, and has reason to believe, that the money is the propérty of the L. Starks Company, of Grand Rapids, Mich., a corporation, and is claimed by the L. Starks Company as the property of that company. He further states that the relator, the Cadillac State Bank, had no other property, money, goods, chattels, or effects in its hands or under its control belonging to said R. H. Tuttle & Co., or to Richard H. Tuttle, or to Len Starks, nor at the time of the service of the writ was it indebted to ít. H. Tuttle & Co. or Richard H. Tuttle and Len Starks further than set forth.

"With the filing of this disclosure, which was made April 1, 1904, all proceedings in the garnishment suit stopped until September 27, 1904, when plaintiff in the primary action moved the court to render judgment against the Cadillac State Bank as garnishee upon the affidavit for garnishment and the disclosure filed, basing his motion on the files and records in the case of Rathman v. R. H. Tuttle & Co. and the files and records in the garnishment proceeding. This motion was noticed for hearing on the 8th of October, was brought on to be heard on that day, and rendition of judgment was objected to on the part of the Cadillac State Bank by E. F. Sawyer, its attorney, for the reason that the disclosure was conditional, and not absolute, and that without an issue framed under the statute, and tried, the bank would not be protected against the demand of any proper claimant for the money. The court, overruling this objection, ordered judgment entered, and judgment was on the 8th day of October entered against the Cadillac State Bank, garnishee defendant, for the sum of $222.16, the amount of the judgment in the primary case and costs and interest at 5 per cent., and also a motion fee of $10.

After the judgment was rendered, a stay of 80 days was allowed by the court to enable the relator, the garnishee defendant, to review the proceedings in this court, and the necessary supersedeas bond was filed. Relator desired to present the case in this court on a case made after judgment, and to that end prepared a “ case” and noticed the application for settlement upon the attorney for the plaintiff in the primary case, but the same was carried along from time to time until December 6th, when it was taken up and argued. The circuit judge declined to sign the case made because there was no finding of facts or of law, and because none had been requested by either party, and thereupon the attorney for relator prepared a short finding of fact? and a conclusion of law, which, on the 8th of December, was presented to tbe court with the request that he sign the same or amend them. So far the facts are undisputed.

The answer of the respondent sets out the following additional facts: He denies that on the 8th of October the garnishee defendant appeared and objected to any judgment being rendered against it, but admits .that E. F. Sawyer, who claimed to be there for the Cadillac State Bank, but had at all times theretofore been the attorney for Richard H. Tuttle, and tried the main case for R. H. Tuttle & Co., argued the matter; says that Mr. Sawyer is hot the regular attorney for the bank, had never entered his appearance as attorney for Jhe Cadillac State Bank. He denies that upon rendering judgment in the garnishment case the Cadillac State Bank, by its counsel, excepted, and says that the Cadillac State Bank, relator, by its counsel, made no request for findings of facts and law. He says he refused to sign the case made presented to him for settlement because there was no finding of fact or law made; that the attorney for the plaintiff in the primary cause objected to the settlement because there were no findings of fact and law; that he stated to the attorneys at that time that there should be a request filed asking for a finding of facts and law upon which the court could act, and that no such request has been filed by either party. He admits that a purported statement of facts and law was presented to him, and he refused to sign those findings, or any others, at that time, and says that the bank, relator, has never requested him to make any findings except as presented by E. F. Sawyer as aforesaid. He assigns as a further reason for not signing the findings of fact and law that there was a judgment standing against R. H. Tuttle & Co., and that he would not evade the rules of the court in order to assist R. H. Tuttle & Co. in avoiding payment of an honest judgment. He admits that the proposed “case” attached to ,relator’s petition is the one presented to him for signature on the 6th of December, 1904=; admits that the purported finding of facts and law so attached to the petition is the one presented to him for his signature on the 8th of December, 1904.

There are various other papers on file in connection with this proceeding, among them the copy of the stenographer’s minutes as to what took place upon the occasion of settling the answer of respondent. It is not considered.

There was no trial of the garnishment case. There was a judgment, based upon the files and records of the court. There is no reason why the relator, the garnishee defendant, should not test the validity of this judgment in this court, and by a case made if he prefers that practice. There is no reason shown why the court should not have settled and signed the case made which was proposed to him by counsel for relator.

A writ of mandamus will issue as prayed.

Moore, C. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.-


author: Moore, C. J.

text:
    SIMONS v. HABERKORN.
    Trial — Instructions—Necessity—Sufficiency.
    In an action on a building contract, after the evidence was in, court and counsel engaged in a colloquy as to allowing the written specifications to go to the jury, in which defendant stated that he wished them instructed that the writings did not constitute all the contract, to which the court replied, "Certainly this writing is not the complete contract; the jury will so understand it.” Defendant also stated that he would ask the court-to charge as to the implied provision that-work done under the contract "must be done in good workmanlike manner,” and the court answered, “The jury will so understand it.” On the following day the jury were sent out without instructions, defendant’s requests having been refused. Held, that there was no compliance with sections 10243-10246, 3 Comp. Laws, making the jury judge of the facts, and requiring the court to instruct them as to the law of the case.

      Error to Wayne; Donovan, J.
    Submitted January 10, 1905.
    (Docket No. 31.)
    Decided February 27, 1905.
    Assumpsit by George M. Simons, by next friend, against James H. A. Haberkorn for work and labor done. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Edward A. Barnes and U. Grant Race, for appellant.

      Charles C. Simons, for appellee.
   Moore, C. J.

Plaintiff, a minor, and one Decker were in business in Detroit under the name of the Peninsular Wire Works. They made a contract with the defendant for the construction, for $130, of a wire screen around a ■two-story porch on a residence in Detroit, the screen to be made of large panels of wire mesh in channel iron frames overlaid with wire cloth, to be of materials specified in a written proposition. They proceeded with the work. Defendant and the supervising architect were dissatisfied with it, claiming the workmanship was faulty, and was ineffective to keep out mosquitoes and other insects, and that the doors did not work properly. Decker terminated his connection with the business, and plaintiff, with one assistant, undertook to make the work right, and claims he did so. Defendant claimed he failed to do so. Plaintiff demanded payment, which was refused, and suit was brought.

Whether the work was properly done is the controverted question of fact in the case, about which the testimony was very conflicting.

After the testimony was all in, the following occurred:

“ It was agreed that the argument to the jury should be limited to fifteen minutes on each side. The court then inquired of the jury how many of their number had sat on juries before, and ascertained that there were several who had upon one or more prior occasions acted as jurors.
The Court: The charge will be one word, I will charge you the first thing on Monday at two o’clock. (Thereupon counsel for plaintiff and for defendant made their arguments to the jury.)
The Court: Mr. Simons, do you wish these written specifications to go to the jury ?
“Mr. Simons: Yes, sir.
“ The Court: Mr. Barnes, have you any objections ?
“ Mr. Barnes: I have no objections provided the jury have proper instructions regarding them. I shall want them instructed that these specifications do not constitute all the contract.
“Mr. Simons: The plaintiff does not claim that they constitute the whole of the contract; only that they are a part of it.
‘ ‘ The Court: Certainly this writing is not the complete contract; the jury will so understand it.
Mr. Barnes: I shall also ask the court to charge with respect to certain implied provisions of every contract; that the work must be done in good workmanlike manner.
“The Court: There jury will so understand it.”

Whereupon the court adjourned to Monday, October 12th, on which day, before the charge of the court, counsel for defendant presented to the court certain requests to charge. Thereupon the court charged the jury as follows:

Gentlemen of the jury, I decline to give the requests to charge. Go.
“ Mr. Simons:L Does your honor direct that the specifications be given to the jury ?
The Court: Yes, they are there.
Mr. Barnes: My requests are refused ?
“ The Court: Yes, I told you the other day, and we agreed upon the charge we are now giving.
“ Mr. Barnes: I was not a party of any such agreement.
“The Court: The record will show what was said on Saturday.'
Mr. Barnes: Note an exception to the refusal of the court to give the defendant’s first and second requests to charge. ”

Sections 10243 to 10246, 3 Comp. Laws, declare and establish the practice in charging or instructing juries. The provisions clearly recognize that it is the function of the jury to pass upon questions of fact. They with equal clearness recognize the duty of the trial judge to instruct the jury as to the law of the case. See the many cases cited in the note to section 10243, and especially Crippen v. Hope, 38 Mich. 344; Roby Lumber Co. v. Gray, 73 Mich. 356; Hyde v. Shank, 77 Mich. 517. We do not think it can be said that the colloquy which occurred between counsel and the judge, to which the jury might or might not have paid any attention, was in any proper sense, as contemplated by the statute, an instruction to the jury as to the law which should govern them in passing upon the facts.

Because of the failure to instruct the jury as to the law, the case is reversed, and a new trial ordered.

Carpenter, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    SMITH v. SMITH.
    1. Appeal and Error — Questions Considered — Appeal from Order after Decree.
    An appeal from an order reducing the amount of alimony previously granted by a decree of divorce does not bring up the original decree.

      2. Divorce — Alimony—Reduction—Remarriage of Husband.
    Where a divorce was granted to a wife on her cross-bill, and she was awarded permanent alimony, not shown to be beyond her necessities, and 12 days thereafter complainant married a woman with whom he had been keeping company for 2 years before the divorce, and it was this conduct that alienated the affections of complainant’s daughter from him, after which-defendant discouraged the daughter’s association with complainant, neither complainant’s subsequent marriage nor the alienation of the daughter’s affections justified an order reducing the decree for permanent alimony.

      Appeal from Wayne; Donovan, J.
    Submitted January 10,1905.
    (Docket No. 34.)
    Decided February 27, 1905.
    Bill by Edwin W. Smith against Elma L. Smith for a divorce: On petition for an order reducing the amount of alimony. From an order awarding a gross amount, defendant appeals.
    Reversed.

      Orla B. Taylor and Fred C. Harvey, for complainant.

      Allan IT. Frazer, for defendant.
   Carpenter, J.

In March, 1903, a decree of divorce was granted in this case on the cross-bill of defendant. That decree gave defendant the custody of the only child of the parties, and awarded her permanent alimony of $75 per month. May 25, 1904, on the petition of complainant, an order was made materially reducing the permanent alimony awarded defendant. From this order defendant appeals to this court.

We cannot on this record review the original decree. We must assume that the award of alimony in that decree was in every respect proper. The question for our consideration is this: Have such new facts arisen since the decree as to justify its modification? Perkins v. Perkins, 12 Mich. 456; Chandler v. Chandler, 24 Mich. 176.

We proceed to inquire what new facts have arisen since the rendition of the decree. If there has been any change in complainant’s financial circumstances, that change has improved his financial ability. There has been no change in defendant’s necessities. Upon the oral argument it was urged that her condition of health has improved since the decree was rendered, but later it was conceded that this claim was not supported by the record. It cannot, therefore, be considered. It does appear that since the decree was rendered complainant has married, and that his daughter has lost her affection for him. Unless we hold that this marriage and diminished affection are such new facts as justify a reduction of the alimony, the order appealed from should be reversed. There can be no doubt that complainant had the right to remarry; there can be no doubt that by remarrying he has increased his necessities, and to that extent diminished his ability to pay the alimony awarded defendant. But as it was a voluntary act of his, and an act which the testimony shows he contemplated at the time he obtained his divorce, we do not think that he should be permitted to say that it is a fact arising since the decree which warrants a reduction of defendant’s alimony. It may be said in this case, as was said by the supreme court of Washington in State, ex rel. Brown, v. Brown, 31 Wash. 405 (62 L. R. A. 974):

“If his monthly income after divorce was sufficient to support himself alone and pay his divorced wife the •alimony allowed, he could not by his subsequent marriage set aside the decree, or be heard to say that the additional burdens which he himself thereby assumed made him unable to comply with the decree. The divorced wife and minor child have a fixed and prior claim upon the earnings of appellant, which appellant for his own comfort may not take away.”

Is the modification of the decree justified by the fact that complainant’s daughter lost her affection for him ? Complainant contends that defendant is responsible for this loss of his daughter’s affection. A careful examination of the record convinces us that the cause of the loss of the daughter’s affection is the fact that complainant 12 days after his divorce married a woman with whom he had been keeping company for a period of 2 years before his divorce. We do not agree with complainant that this conduct would not have disturbed the daughter if her mother had not brought it to her attention. We credit the testimony which shows that it was brought to her notice by the children at school, and that she grieved bitterly because they taunted her. It is but natural that this conduct of complainant should create in defendant, as well as in her daughter, a feeling of resentment. It induced, and naturally induced, defendant to believe that for the daughter’s own good she should not associate with her father; and if, as we may infer from the record, in consequence of this she discouraged such association, that is a circumstance justly chargeable to complainant’s conduct, and is not, therefore, a fact which justifies the reduction of alimony.

It follows, therefore, that the order appealed from must be set aside.

Moore, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    FAIRFIELD v. HART.
    1. Trial to Court — Findings of Faot — Proposals.
    Proposed findings of faot, which are net statements of ultimate facts but are rather recitals of proofs, are objectionable in form.
    2. Appeal and Error — Findings of Faot — Conolusiveness.
    Findings by the trial judge, on conflicting evidence, in a case tried without a jury, are conclusive on error.
    8. Architects’ Services — Action—Evidence—Sufficiency.
    Testimony by defendant that he agreed to pay plaintiff, an architect, the “ usual commission ” for certain plans, if accepted, does not support a finding of fact that defendant agreed to pay the usual commission, the plans not being accepted.
    4. Same — Conclusions of Law — Support by Findings.
    A finding of fact that defendant agreed to pay the “ usual commission” for certain plans does not support a conclusion of law that plaintiff is entitled to recover a specific sum, though there is evidence undisputed that that sum is a fair price for the plans furnished. '

    5. Same — Failure to Except.
    Where there is no claim by exception or assignment of error that the conclusion of law is not supported by the findings of fact, and there is evidence undisputed that the amount of the judgment was a fair price for .the-services rendered, failure of the evidence to support a finding that defendant agreed to pay the usual price for such seivices is immaterial.
    Error to Kent; Perkins, J.
    Submitted January 12, 1905.
    (Docket No. 51.)
    Decided February 27, 1905.
    Assumpsit by George W. Fairfield against George A. Hart for services rendered. Ther§ was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Peter Doran, for appellant.-

      Holmes & Holmes, for appél'lee.
   Ostrander, J.

This case, which originated in justice’s court, was appealed to the circuit .court, and there tried before the court without a jury. Written findings of fact and of law were made and filed, which findings and conclusion defendant sought to have amended. The proposed amendments, which were refused, appear in the record. If adopted, they would reverse' the findings of fact made by the court and require a conclusion of law favorable to defendant. Many of the amendments proposed are objectionable in form, as being recitals of proof rather than statements of ultimate facts. Exceptions were taken to the findings of fact and to the conclusion of law, as well as to the refusal of the court to amend as requested. It is not claimed that the finding of facts made by the court does not support the conclusion of law and the judgment for $120 which was entered.

No extended discussion of the points made would be of interest or benefit to the profession. Plaintiff, an architect, sued for the value of certain plans for cottages, claimed by him to have been made for and furnished defendant, at his request. The declaration was oral, on the common counts, and especially for the professional services of an architect. The plea was the general issue. On the part of the defendant, it was and is urged that the testimony does not show a contract — a meeting of the minds of plaintiff and defendant in a definite and enforceable agreement. We think that the testimony of plaintiff tended to show, and, if believed, did show, an employment to make plans for 10 cottages; that no price was agreed upon; that the construction was to be cheap; that the work was performed; that $12 each for the plans was a reasonable price. There was considerable proof taken upon the proposition that the plans were not of value because the cottages indicated by them could not be built within the limits of cost fixed by defendant. But plaintiff did not testify, or admit, that any precise cost or range of cost was stated by defendant. It was for the court to find the fact, and there was testimony which would have supported a finding for either contestant. We cannot weigh the evidence. If the court believed the plaintiff, as he evidently did, the findings of fact are all of them warranted, excepting one. We find no proof offered on the part of the plaintiff to support the finding that defendant agreed to pay plaintiff for the plans “the usual commission.” That proof was found in defendant’s testimony, but is coupled with the further statement that payment was to be made only if plans were accepted. They were not accepted. Even' if plaintiff had so testified the finding of fact does not support the conclusion of law that plaintiff is entitled to recover $120, or at the rate of $12 a plan. As has been stated, however, it is not claimed by appellant, by exception or assignment of error, that the conclusion of law is not supported by the findings of fact, and there was proof, not disputed, that $12 a plan was a fair price for those furnished.

The first four assignments of error are based upon rulings admitting or excluding testimony. We have considered them. As to the first, we do not think there was any ambiguity in the letter sought to be explained, and the ruling was error. But it is quite clear that the answer given could not have prejudiced defendant. It was rather a statement of intentions and of a business custom than an explanation of the language of the letter. The other exceptions are not well taken.

The judgment is affirmed, with costs.

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


author: Grant, J.

text:
    NAPPER v. FITZPATRICK.
    Judgments — Res Judicata — Qeeects in Tax Sale.
    The validity of a tax deed is established by the decree in the tax sale proceedings, and the contesting owner cannot retry that issue by a subsequent action of ejectment against the tax sale purchaser on a ground- sincAdiscovered.
    Error to Alpena; Emerick, J.
    Submitted January 17, 1905.
    (Docket No. 57.)
    Decided February 27, 1905.
    Ejectment by Robert Napper ■ against John E. Fitzpatrick and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      O’Brien & Francis, for appellant.

      Black & Boberts (McFarlan & Wilson, of counsel), for appellees.
   Grant, J.

Plaintiff acquired title in fee from the original owner of the lands 'in controversy by the foreclosure of a mortgage. Taxes were not paid, and the defendants Brown and Cullen acquired the tax title upon the usual petition by the auditor general for the foreclosure of tax liens, and petitioned for a writ of assistance. To this the .plaintiff appeared and filed an answer, contesting the validity of the decree and deed. The reason then assigned was that the decree was prematurely entered. The court entered a decree for the petitioners, granting the writ of assistance. Plaintiff appealed, and the decree was affirmed by this court. Brown v. Napper, 125 Mich. 117. Plaintiff afterwards instituted this action of ejectment, alleging another objection to the validity of the defendants’ deed, namely, that they did not pay certain other taxes which were then due and a lien upon the lands, and which should have been included in the purchase price, under Hughes v. Jordan, 118 Mich. 27, and Wilkin v. Keith, 121 Mich. 67.

The issue involved in the proceedings for the writ of assistance was the validity of the tax deed. Plaintiff should have interposed then all the objections he had to the validity of the deed. Its validity is res adjudicata by that decision. He is not now entitled to retry that issue on grounds which he may have since discovered. The case is expressly ruled by Peters v. Youngs, 122 Mich. 484.

Judgment is affirmed.

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


text:
    MASSI v. LAVINE.
    •Cancellation op Instruments — Equity—Clean Hands.
    A bill to cancel a deed alleged to have been made by complainant to defendant conveying property worth 52,500 to avoid a liability of 5115 is properly dismissed, it appearing that complainant was accustomed to business affairs, and there being no fiduciary relation between the parties.
    Appeal from Houghton; Streeter, J.
    Submitted January 18, 1905.
    (Docket No. 70.)
    Decided February 27, 1905.

      Bill by August Massi and another against Morris Lavine and another for the cancellation of a deed. From a decree dismissing the bill, complainants.appeal.
    Affirmed.
    The purpose of this suit is to, obtain .the cancellation of a deed made by complainants to defendant Morris Lavine. Complainants’ claim is: That Mr. Massi was one of the sureties upon the bond of one Mrs. Lainorand as administratrix, the bond being in the sum of $500. That he received a letter from a firm of lawyers saying that:
    “ She [the administratrix], has not gone ahead with this estate and has not paid our client’s claim. If she does not do so, of course we will fall back on the bondsmen for payment of the same, and we thought it would be for your interest for us to write this letter, and notify you that we expect to collect this claim in full. Kindly let us hear from you what Mrs. Lamorand intends to do.”
    That defendant Morris read this letter, and told the complainants that they should transfer this property to some one else, or they would have trouble, and would surely lose their property. That they were finally induced by defendant Morris to deed the property to him, upon his promise to deed it back after the trouble was over. That the consideration was $2,500. That it was agreed that $1,000 should be considered paid, whereas in fact nothing was paid; that three notes, of $500 each, running from one to three years, should be given by the defendant Morris to the complainant. That the transaction was carried out, and the deed executed and delivered. That complainant August tendered back the notes, and demanded the execution of a deed from defendants, and that they refused. The claim of the defendant Morris is that the sale was a bona fide transaction; that he paid $600 in cash at the time of the execution of the deed; that the property was subject to a mortgage of $200, which he assumed; that complainant August owed him $200, which was canceled as a part of the consideration; that soon after the transaction complainant wanted money, and it was agreed that, if Mr. Lavine would pay Mr. Massi $1,200 for the notes, they should be surrendered; that defendant raised the money, paid it to complainant, and received the notes, which he destroyed. The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.

      Louis N. Legris (P. H. O’Brien, of counsel), for complainants.

      W. A. Burritt, for defendants.
   Grant, J.

(after stating the facts). The main issue of fact in the case is, Was the sale a bona fide one, and the consideration paid, or was the title transferred to assist the complainant August Massi to avoid the payment of a debt ? Upon this the testimony was in direct conflict. There is no room to find that either is mistaken. Either the one or the other has committed perjury. Each has produced some corroborating evidence to support his version. We find it unnecessary to determine this controversy, as the case must be determined upon the complainants’ own evidence.

No fiduciary or confidential relation existed between Mr. Massi and Mr. Lavine. They were dealing with each other at arm’s length. They had had various business transactions together for some years. The land conveyed is conceded to be worth $2,500, the consideration expressed in the deed. The bond signed by Mr. Massi with another bondsman was for $500. He claims that he was threatened only with the payment of $115. This was contingent upon his principal, the administratrix, not performing her duty. The letter which he relies upon as containing the threat to enforce the claim against him only asked him to see that the administratrix performed her duty. He apparently took no steps to that end. He was accustomed to business affairs. He had 80 acres of land besides that involved in this suit, which he did not transfer. I can reach no other conclusion from his own testimony than that he conveyed this land, worth $2,500, to avoid a liability of only $115. He does not come into court with clean hands, and equity will leave him in the bed he chose to make. Under his own testimony, he is not entitled to relief. The record does not justify a finding that this is a case where the stronger has overpowered the weaker, or the superior has taken advantage of the inferior, and by his persuasion and influence has procured an unlawful act to be done. The case falls within Poppe v. Poppe, 114 Mich. 649.

The decree is affirmed, with costs.

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


text:
    LETTS v. TREVALLICK.
    Equity — Practice—Issue—Joinder—Notice to Take Testimony —Time—Objections.
    Where a suit in chancery was at issue as to one defendant when complainant served notice of his intention to take testimony in open court, as authorized by Chancery Rule 15a, and such defendant made no application to have the case referred to a commissioner to take testimony, he was not entitled to object that the service of the notice to take testimony was premature because no order pro confesso had been entered against the other defendants.
    Appeal from Wayne; Frazer, J.
    Submitted January 18, 1905.
    (Docket No. 62.)
    Decided February 27, 1905.
    Bill by Charles E. Letts against Roberta Trevallick and others to remove a cloud from the title to land. From a decree for complainant, defendant Trevallick appeals.
    Affirmed.
    Complainant, the owner in fee simple of the lands described in this bill of complaint, filed the bill against the defendants to remove a cloud from title caused by the existence of tax leases issued by the city of Detroit for unpaid taxes. Defendant Prentis filed a disclaimer. Defendants Chase and Dedine were duly defaulted September 22, 1903. Defendant Trevallick answered. The bill alleges that one Elisha Forsyth in his lifetime claimed title by virtue of certain tax leases; that he is dead, and that defendants Dedine and Trevallick are his heirs; that said Forsyth in his lifetime and neither of the defendants ever attempted to take possession of said land; and that said leases constitute a cloud upon complainant’s title. Defendant Trevallick admits that she has never been in possession, but alleges, on. information and belief only, that said Elisha did take possession of and occupied said premises, and was in possession and occupation for a long time previous to his death. The bill was filed May 7, .1903. To the answer a replication was duly filed August 6, 1903. On the same day complainant filed notice of an intention to take testimony in open court under the statute, but did not file proof of the service of this notice upon the two defendants who had appeared. Upon the hearing on February 10, 1904, counsel for defendant Trevallick objected to any evidence, on the ground that complainant had not obtained the right to take evidence in open court. Counsel for the complainant stated that proof of service was then being made out, and would be duly served, which was done on the same day. The court then announced that they could proceed with taking testimony. Complainant then gave evidence to establish the allegations of the bill. The defendant introduced no testimony, and decree was entered for the complainant.

      Walker & Spalding, for complainant.

      B. T. Prentis, for appellant.
   Grant, J.

(after stating the facts). Defendant insists tiat the case was not in position for hearing, because, when the notice of the intention to take testimony in open court was filed and served, the case was not at issue as to all the defendants, the order pro confesso as to defendants Chase and Dedine not having been entered. Counsel for defendant relies upon Kelly v. Wayne Circuit Judge, 90 Mich. 264, and Hall Lumber Co. v. Gustin, 54 Mich. 624. In Kelly v. Wayne Circuit Judge the question was raised by mandamus to strike the case from the docket, because the case was not at issue. In Hall Lumber Co. v. Gustin the question was raised by a motion to suppress ex parte depositions which had been taken before the time for claiming an examination in open court had expired. We fail to find any evidence that the defendant was prejudiced by this mere irregularity. We think the case is clearly within Kellogg v. Putnam, 11 Mich. 344; Munch v. Shabel, 37 Mich. 166. Under Cir. Ct. Rule 25 the court has the power to order the testi-, mony taken orally in open court. The same rule is applicable in courts of chancery. Chancery Rule 15 a. The case was at issue as to defendant Trevallick. If defendant’s solicitor knew that the notice was prematurely filed, it was his duty, if he desired to have it referred to a commissioner to take testimony, to enter an order to that effect. If he supposed that the proceedings were regular, then he clearly cannot claim that his client was prejudiced or taken by surprise, for he had ample time to prepare for the hearing.

The decree is affirmed, with costs.

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


text:
    WEBER v. COSTIGAN.
    1. Appeal and Error — Decisions Review able — Consent Decrees.
    An appeal does not lie from a decree or order of the circuit court in chancery to procure a review of provisions contained in such order or decree which were assented to by the appealing party.
    2. Same — Transfer of Jurisdiction — Supersedeas Bond— Modification of Order Appealed From.
    An appeal without supersedeas bond does not deprive the circuit court in chancery of jurisdiction to enter an order nunc pro tunc modifying the order appealed from so as to show that it was entered by consent of the parties in open court. Act ' No. 243, Pub. Acts 1899.
    3. Same — Certificate.
    An order of the circuit judge in a chancery case, modifying the order appealed from so as to show that it was entered by consent of the parties, amounts to a certificate of the fact that the order appealed from was a consent order.
    Appeal from Wayne; Brooke, J.
    Submitted January 18, 1905.
    (Docket No. 66.)
    Decided February 27, 1905.
    Bill by Joseph F. Weber against Theresa L. Costigan and others for the foreclosure of a mortgage. From an order confirming commissioner’s sale, defendant Costigan appeals. '
    Affirmed.

      Jasper G. Gates, for complainant.

      George W. Bates, for appellant.
   Montgomery, J.

This is an appeal taken from an Order confirming a sale under a chancery decree. The order appealed from was entered April 11, 1904. The notice of appeal was filed on the 18th of May, 1904. On the 19 th of May a motion was entered to amend the order of April 11th, and enter the same as of May 4, 1904, and incorporate therein a statement that the order was entered by consent of the solicitors of record of both parties, given in open court. This motion was supported by the affidavit of complainant’s solicitor showing that such consent to said order was given. The statements contained in this affidavit are not controverted. The return to the appeal was made to this court on the 6th day of June, 1904. On the 11th day of June the motion to amend the order of April 11th so as to show that' the same was entered upon consent of parties in open court was granted.

It is clear that an appeal does not lie from a decree or order of the circuit court in chancery to procure a review of provisions contained in such order or decree which were assented to by the appealing party. Chapin v. Perrin, 46 Mich. 130.

It is contended, however, that, as the appeal was taken before the order nunc pro tunc was entered, the cause was so far removed from the circuit court in chancery that no valid order could be made therein. Under the statute as it now reads, an appeal from a chancery decree does not operate as a supersedeas unless a bond be filed. Act No. 243, Pub. Acts 1899; Harmon v. Metcalfe, 134 Mich. 643. The circuit court in chancery may therefore enforce its decree, and no good and adequate reason is suggested why the court may not, at least as a preliminary to the enforcement of the decree, amend the same to conform to the fact.. This has been done in proceedings at law in numerous instances. Tillotson v. Cheetham, 3 Johns. (N. Y.) 95; Rew v. Barker, 2 Cow. (N. Y.) 408, and cases cited. In case such an amendment occurs after the case has been removed by writ of error, it is true, it may be necessary to have a new return, but this is not uncommon. This court has in several unreported cases remanded records for the purpose of permitting amendments. In the present case by a further return of the register the proceedings by which the amendment was allowed are before us. Upon a showing such as is contained in the affidavit of the complainant’s solicitor, it cannot be doubted that the court would, even bad a supersedeas bond been filed, have remanded the record to permit the amendment. There is no occasion to do so in this case, for the control of the court below was not suspended, and furthermore the order of the circuit judge would, at the least, amount to a certificate to. the fact that the order appealed from was a consent order.

The decree is affirmed.

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


author: Mcálvat, J.

text:
    MARTIN v. FARMERS’ MUTUAL FIRE-INSURANCE COMPANY OF CALHOUN COUNTY.
    1. Jurors — -Disqualification—Interest in Result of Action.
    In an action against a mutual fire-ináurance company, members thereof, liable to be assessed to pay the loss if the company should be defeated, are interested, and incompetent as jurors.
    2. Same — Objection—Waiver.
    Plaintiff challenged a disqualified juror for cause, and, on the overruling of the challenge, exercised a peremptory challenge. Thereafter, and while plaintiff still had two peremptory challenges, four other jurors, disqualified for the same reason, were called, and plaintiff neither challenged for cause nor exercised his peremptory challenges. Held, that he did not thereby waive his objections to the disqualified jurors.
    Error to Calhoun; Hopkins, J.
    Submitted January 18, 1905.
    (Docket No. 69.)
    Decided February 27, 1905.
    Assumpsit by John F. Martin against the Farmers’ Mutual Fire-Insurance Company of Calhoun County on a policy of insurance. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Hatch & Page, for appellant.

      William H. Porter, for appellee.
   Mcálvat, J.

Plaintiff brought suit in justice’s court •against defendant company upon a policy of insurance, claiming damages for injury to his horse by lightning, and recovered judgment for $125'.' Defendant appealed to the circuit court for Calhoun county, where, upon trial, a jury rendered a verdict in its favor of no cause of action, and judgment was accordingly entered. Plaintiff brings the case to this court by writ of error.

. In April, 1897, plaintiff, who lived upon a farm in Em-met township, Calhoun county, made application in writing for insurance on his farm property. A policy was issued upon such application in the sum of $1,000, and he became a member of defendant company. Having changed his residence and removed his personal farm property to Marengo township on November 28, 1899, his original application and the insurance policy were changed to cover the property at its new location, the amount of insurance being increased to $1,225. Having leased his farm on shares for one year, he moved to the city of Marshall, December 12, 1901, taking with-him his household goods and the horse in question. May 31, 1902, on application, the amount of his insurance was reduced to $800, of which the amount on live stock and farm implements was $150. Plaintiff paid his assessments, and was a member in good ¡standing July 17, 1902, when the injury to the horse occurred. The insurance policy refers to the application, and makes it a part of the policy, and by the terms of both writings the insurance is subject to the provisions of the •charter and by-laws of the company.

Defendant company by its articles of incorporation was authorized to insure buildings and contents belonging to its members within the limits of villages and cities, when such buildings were detached risks, not less than 80 feet from all other risks. There was a provision by by-law No. 19:

“All members holding policies on live .stock and other personal property are hereby insured at all times and' in all places in said county of Calhoun while on or about their business in connection with farming.”

Plaintiff claims that when the last change was made in the policy he instructed the secretary of the company to cut off all property that was not insured where he lived, ■ and that the secretary told him that he was insured on horse and buggy anywhere in the county. He also claims that the company is estopped from denying that the policy covered the horse at the time of injury, on account of waiver of the forfeiture of the policy, and also on account of receiving certain assessments after the change in the policy, and after knowledge of the claim for injury to the horse. Plaintiff also claims that he was within the provisions of by-law No. 19, the horse being where it was while on or about his business of farming. The proof is clear that the buildings in Marshall, where plaintiff lived, were not detached risks under the charter, being less than 80 feet from other risks.

Defendant positively denies the claim of plaintiff as to what occurred when the policy was changed May 31, 1902, claiming that the secretary told plaintiff that, if the buildings were not detached, none of the property would be insured, and on this date plaintiff said they were not detached, and then the change was made; the household goods were cut off, and plaintiff said he would keep a colt, a mare, and some tools on the farm, and the amount in the policy was left as plaintiff elected. An issue of fact was raised as to what actually occurred. The first assessment referred to was made May 31, 1902, and paid later. The second one was in November, 1902, on the full amount of the policy, and was also paid.

The errors relied upon relate, first, to the action of the court in allowing four members of defendant company in good standing, having policies in force, to sit on the jury. In securing a jury, five members of the company were called. Plaintiff raised the question as to the first one that it was a mutual company and the juror was interested, and asked to have him excused for cause. The court held the challenge not good, and the plaintiff took exception. The juror was then challenged peremptorily. One other peremptory challenge was used by plaintiff. The record does not show that this challenge for cause was repeated, but it does show that there were four members of the company left to try the case. • It is claimed that plaintiff waived any objection by passing the jury for cause and afterwards accepting the jury.

A motion for a new trial based upon this ground was denied, for the reason that two of these declared that they “were free from bias and prejudice,” “and it is assumed that both the plaintiff and his attorney so regarded them that the other two were not examined as to bias and prejudice; that plaintiff still had two unexhausted peremptory challenges at the time he announced himself satisfied. The court indicated that being' a member of this company did not disqualify, if the juror stated he could fairly try the case without bias or prejudice, and the court so held.

The fact that these jurors were members of this mutual fire-insurance company, liable to be assessed and to pay if this case went against the company, disqualified them from sitting. TwP peremptory challenges remained to get rid of four jurors, under the ruling of the court. The question is whether plaintiff waived his objection to these jurors by not making specific objections to each one, getting the ruling of the court and exceptions, and then exhausting the two remaining peremptory challenges, and whether he waived all objection by accepting the jury.

A party having knowledge of the fact that a juror is interested in the result of a case should bring the matter to the attention of the court. This is indicated in the case of Peninsular Railway Co. v. Howard, 20 Mich. 25, where, in a condemnation proceeding before a probate' judge, two stockholders of the company served on the jury, but the fact of their interest did not come to the knowledge of the defendant until the jury were sworn and had proceeded to view the premises to make inquest of damages. This court held that the confirmation must be set aside for the reason that no legal jury was impaneled.

In the case of Sullings v. Shakespeare, 46 Mich. 408, this court laid down the rule that overruling a challenge for cause and compelling a party to resort to a peremptory challenge does not prejudice him, where, when the jury is accepted, he still has peremptory challenges which he does not use. In that case the court said:

“ If, by the overruling of the challenge, anything could be inferred in the cause prejudicial to the rights of the plaintiff by compelling him to exhaust his peremptory challenges on persons liable to other objections, the case would be different.”

This rule was followed in People v. Barker, 60 Mich. 277; People v. Aplin, 86 Mich. 393.

It may be that plaintiff’s attorney was not as diligent as he might have been in making the record show beyond question that he did not waive his objections to these jurors; but in view of the fact that the court held the ground of challenge for cause not good, and that it was not necessary to multiply the exceptions upon the same point, and that he had but two peremptory challenges to use upon four disqualified jurors, we cannot presume that he waived his client’s rights and consented to try a case with a jury one-third of which was directly interested in the result of the suit, and personally liable to pay a part of the judgment in case of recovery by plaintiff.

In denying the motion for a new trial, the trial judge went upon the theory that the two jurors who had stated that they were without bias or prejudice, although members of the company, were qualified to act, and stated that for the purpose of the motion he assumed that plaintiff so regarded them, and also that plaintiff should have exhausted his peremptories upon the other two. He does not intimate that he was mistaken in his ruling upon the trial that the objection to these jurors was not well taken. The disqualification of a judge or juror to sit in a case is a question of vital interest to more than the parties to a suit. It involves the administration of justice before disinterested, unprejudiced, and impartial tribunals. The court erred in holding the challenge for cause not sufficient, and also that plaintiff had waived his objection. A new trial should have been granted. The court erred in denying it.

As there must be a new trial, it is necessary to refer briefly to the other errors claimed. We think that the court fairly submitted the case to the jury in his charge, and we do not find error in his refusal to grant plaintiff’s requests to charge, or in the refusal to submit the case upon the theory of waiver of forfeiture.

For reasons herein expressed, the judgment of the court, below is reversed, and a new trial ordered, with costs of this court to plaintiff.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    TRUAX v. BLISS.
    1. Evidence — Opinions of Third Parties.
    The conclusion reached by an arbitrator, to whom tho differences between plaintiff and defendant were submitted under an agreement that his decision should not be binding, is not admissible.
    2. Overpayment — Right to Recover.
    Money paid by mistake in excess of the amount due may be recovered.
    Error to Lenawee; Chester, J.
    Submitted January 13, 1905.
    (Docket No. 53.)
    Decided February 27, 1905.
    Assumpsit by Jerome Truax against Almond L. Bliss for money alleged to have been paid under a mistake. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Fellows & Chandler, for appellant.

      J. W. Helme, for appellee.
   Moore, C. J.

This is an action brought for money claimed to have been paid under a mistake. The plaintiff claimed to have overpaid the defendant $272. The transaction came about in this manner: Mr. Truax, the plaintiff, applied to the defendant for a loan of $700. Defendant let him have $500, and indorsed his note for $200 at the bank. The loan was secured by a deed to the defendant of a small piece of land, which he was to sell, and by a bill of sale of plaintiff’s furniture in an hotel, which plaintiff rented from Dr. Baker. The land was sold for $650. The defendant claimed that at the time of the sale of the real estate he loaned plaintiff $150, and afterwards loaned him $50. The plaintiff denies this. He insists that defendant wrote him that he must have his pay, and that plaintiff requested Dr. Baker to go and see him and pay him; that he did so, and overpaid the amount for which this suit was brought; that when plaintiff found out about the overpayment, upon the refusal of defendant to rectify the mistake, this suit was brought.

Counsel for appellant say: “We shall urge but two questions upon this record: First. Did the plaintiff have the right to show that he and defendant had agreed to make a statement in writing to one Shattuck of their respective claims, with the understanding that Shattuck’s decision should not be binding, and to show what that decision was? Second. Was there anything to go to the jury ? ” — and answers both of them in the negative.

As to the first- question, the record shows as follows (Mr. Truax testifying): '

“After my business was over the next fall, I insisted then on a settlement, and finally offered to arbitrate it. He wouldn’t arbitrate, at first, and have it binding. Said he didn’t think he had anything to arbitrate. I finally made a proposition that we would arbitrate and not have it binding. Then it might convince one or the other of us that we were wrong. So I named Henry S. Shattuck, and Bliss says: ‘Very well. We will make our statement to Mr. Shattuck and let him find what the difference is between us.’ I went and saw Shattuck, and he communicated to Bliss to have him make his written statement, and I would mine. Bliss said for Shattuck to tell me to make out a written statement, and leave it with him, and that he would do the same. I made out my statement, and left it with Shattuck. Mr. Bliss finally filed a statement with Mr. Shattuck. ■ After Shattuck saw the statements he said: T don’t feel competent — .’
“ (Objected to as immaterial.)
The Court: I think, excepting that which was in the presence of Mr. Bliss, or communicated to him, it is good.
Mr. Fellows: I think all of this matter is immaterial. This is not a suit brought upon an arbitration.
Witness (continuing): Mr. Shattuck made a finding of differences between us.”

Then follows the finding, which ends, “Making balance due, §290.47.” This finding, against the objection of counsel, was allowed to go to the jury. It is said by the plaintiff that the finding was a a mere mathematical computation-, which the plaintiff was entitled-to have go to the jury; citing McCreery v. Green, 38 Mich. 186. He further contends that, if error, it was not prejudicial error; citing Lane v. Pere Marquette Boom Co., 62 Mich. 69. We cannot agree with counsel in either of these contentions. Plaintiff was making one claim as to the controlling facts. Defendant disputed this claim, the one opposing the other. To allow the result reached by a third person in relation to the matter in controversy to be read to the jury was to permit them to consider hearsay testimony which the counsel, by offering, and the circuit judge, by receiving, had characterized as material evidence for them to consider. This is not allowable, under Corning v. Woodin, 46 Mich. 44; Webber v. Hayes, 117 Mich. 256.

The next question is, Was there anything to submit to the jury ? If it is true that the plaintiff paid to defendant, through the agency of Dr. Baker, more than was due him, and, when he learned of the mistake, sought to obtain repayment, which was refused, we do not think the defendant can now be heard to say he will not repay. See Pingree v. Gas Co., 107 Mich. 156; State Savings Bank v. Buhl, 129 Mich. 193 (56 L. R. A. 944), and the many cases cited therein. There was no serious dispute about certain sums of money having been paid by the plaintiff. The defendant, however, claims that, as to two of these payments, he loaned to plaintiff sums of money equal to them. This was denied by the plaintiff, and presented a question of fact for the jury.

For the reason stated, the judgment is reversed, and a new trial ordered.

Carpenter, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    RECOR v. ST. CLAIR CIRCUIT JUDGE.
    Mandamus — When Lies — Appealable Order — Quashing Garnishment.
    Under section 10642, 3 Comp. Laws, an order quashing a writ of garnishment, and releasing the garnishee from further liability, with costs to defendant, is in effect a final judgment against plaintiff in the garnishment proceeding, reviewable on error, and hence mandamus does not lie to review such order and to compel the circuit judge to vacate the same.
    Mandamus by Edward C. Recor to compel Harvey Tappan, circuit judge of St. Clair county, to vacate an order quashing a writ of garnishment.
    Submitted January 17, 1905.
    (Calendar No. 20,742.)
    Writ denied February 27, 1905.

      • Henry Baird (Frank T. Wolcott, of counsel), for relator.

      John B. Mcllwain and William Baird, for respondent.
   McAlvay, J.

Application for a mandamus is made by relator to require the circuit judge of St. Clair county to vacate a certain order quashing a writ of garnishment, and releasing the garnishee defendant from further liability in a certain case pending in said court, wherein relator was plaintiff in an action against Arabella Recor, principal defendant, and the Commercial & Savings Bank of St. Clair, Michigan, garnishee defendant. Relator, before applying to this court, made a motion in the circuit court, before the respondent, to vacate the order hereinbefore referred to. This motion was denied, and the petition in this proceeding was filed in this court.

The order sought to be vacated is as follows:

“The motion made in the above-entitled cause by the defendant Arabella Recor, to quash the writ of garnishment, came on to be heard; and, after hearing, * * * due deliberation being had, it is ordered and adjudged that the writ of garnishment issued in the above cause be, and the same is hereby, quashed, and the garnishee defendant released from further liability in the premises— the reasons for said order being fully set forth in an opinion filed in this cause, and made a part hereof — with costs to the defendant to be taxed, including an attorney fee of $10.
“ It is further ordered that the plaintiff have 45 days in which to remove said cause to the Supreme Court, on giving a bond in the sum of $100, to be approved by the clerk of this court, to indemnify defendants from any costs in the premises.
“Harvey Tapp an,
“Circuit Judge.”

The question to determine is whether mandamus is the proper remedy to review the action of the circuit judge. Section 10642, 3 Comp. Laws, referring to “Proceedings by Garnishment in Circuit Courts,” provides that “any judgment or final order in a suit in garnishment may be set aside or removed to the Supreme Court in like manner and with the same effect as in other personal actions. ”

The order referred to adjudged that the writ of garnishment be quashed, and the garnishee defendant released from further liability, with costs to the defendant to be taxed, including an attorney’s fee. of $10. This is, in effect and in fact, a judgment against the plaintiff, and in favor of the garnishee defendant, finally disposing of the garnishment proceeding, with costs and attorney’s fee against the plaintiff to be taxed; and defendant, upon applying to the court, would be entitled to execution upon this judgment. The statute above quoted applies, and the plaintiff could have the case reviewed in this court upon writ of error. This is not a case where delay is calculated to produce injury, and comes within the rule established by this court in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270.

The writ is therefore denied, with costs.

Grant, Blair,. Montgomery, and Ostrander, JJ., concurred.


text:
    LAING v. TOWNSHIP OF FOREST.
    1. Taxation —Payment Under Protest — Right to Recover— Assignment.
    The right to recover illegal taxes .paid under protest given by Act No. 130, Pub. Acts 1901, may be assigned and the assignee may recover though he is a stranger to the tax roll.
    2. Same — Fraud.
    That the illegality which justifies recovery consists of fraudulent alterations in the tax roll by the supervisor, does not make the action one for fraud and deceit so as to render it unassignable.
    Error to Genesee; Wisner, J.
    Submitted January 17, 1905.
    (Docket No. 60.)
    Decided February 27, 1905.
    Assumpsit by Paul L. Laing against the township of Forest for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Black & Boberts, for appellant.

      McFarlan & Wilson, for appellee.
   Ostrander, J.

A number of persons owning property taxable in the township of Forest, in the county of Genesee, in this State, whose names and descriptions of whose property appeared upon the assessment and tax rolls of that township for the year 1903, and against whom upon said rolls various taxes were laid, paid the taxes under written protests. Each specified substantially the same grounds of protest.

Section 53 of the tax law, being section 3876 of the Compiled Laws of 1897, as amended hy Act No. 130 of the Public Acts of 1901, reads, so far as it is necessary to consider the same, as follows:

‘c Any person may pay the taxes, or any one of the several taxes on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes remaining unpaid. He may pay any tax, whether levied on personal or real property, under protest, to the treasurer, specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within thirty days and not afterwards, sue the township for the amount paid, and recover, if the tax is shown to be illegal for the reason shown in such protest. * * *.”

Within the time limited each of the protesting taxpayers assigned, in writing, to the plaintiff, all right, title, and interest in and to the moneys so paid under protest, and also assigned and set over their several rights of action to sue for and recover the same. The plaintiff was not one of the protesting taxpayers, but was a member of a firm joining in the protest. The trial resulted in a verdict and judgment for the entire amount of the taxes paid, with interest. Testimony was introduced on the trial tending to show that a certain assessment of $300 against the supervisor had been fraudulently stricken from the roll after it passed the board of review, that there had been 30 or 40 other and material fraudulent alterations in assessment values as fixed by the board of review, and that certain of the taxes were illegally raised. When the assignment to plaintiff, heretofore referred to, was offered in evidence, it was objected to on the part of the defendant for the reason that the cause of action was not assignable, “ and particularly for the reason that plaintiff claims under said assignment, among other things, the right to recover for the fraudulent acts of the supervisor, rendering the entire tax roll of the township of Forest for the year. 1903 void; also for the reason that the declaration contains no count or allegation permitting the plaintiff to recover in any event on the ground of fraud.” The objection was overruled, and defendant excepted. At the close of the testimony it was moved in behalf of defendant that a verdict be directed for defendant for the reason that the cause of action as alleged and proved was not assignable, because the attempted assignment was to the plaintiff, a stranger to the tax record. This motion was overruled, and these rulings are the foundation for the three assignments of error upon which the case is brought to this court.

It is contended in the brief for appellant that the right to sue in eases like this is by the statute given to the person paying under the protest; that the language of the statute by necessary implication limits the right to sue to “the person paying under such protest;” that plaintiff as an individual had paid no tax under protest; and, consequently, was not one of the persons permitted to sue. This statute, or a similar one, has received practical construction in the following cases, in each of which the action was brought by a taxpayer for himself and as assignee for other taxpayers. Baldwin v. City of Hastings, 83 Mich. 639; Michigan Savings Bank v. City of Detroit, 107 Mich. 246; Angell v. Cortright, 111 Mich. 223; Coit v. City of Grand Rapids, 115 Mich. 493; Murphy v. Dobben, 137 Mich. 565.

Before any statute like the one in question was passed, it was the settled law of the State that one paying taxes under duress — threatened or actual levy — might sue for the money so paid. First Nat. Bank of Sturgis v. Watkins, 21 Mich. 483.

In Louden v. City of East Saginaw, 41 Mich. 18, plaintiff, for himself and as assignee of other taxpayers, sued to recover money paid under compulsion. And in the last-mentioned case it seems to have been recognized by the court that the action might be brought at any time within six years after such payment of the money. This being the law of the State, the legislature, in 1882, provided by a statute similar to the one now under consideration for a payment of taxes under protest, for a short period in which to sue for the recovery of the money, and for limiting the- grounds of recovery to the reasons stated in the protest. The statute rather limits than extends the rights of the taxpayer, and is designed to secure expedition and precision. It must be construed with reference to the law in force when it was passed and the evident purpose of the legislature. So construed, it will not be held that it limits" in any way action for the recovery of money thus paid under protest to the person actually assessed or actually paying the money, nor that it interferes with or limits the operation of the general statute regulating the assignment of rights of action and suits by assignees thereof. 3 Comp. Laws, § 10054; Cook v. Bell, 18 Mich. 387.

As to the objection that the cause of action in this case was not assignable because a fraudulent alteration of the roll was the basis of plaintiff’s recovery, appellant contends that the case is ruled by Dayton v. Fargo, 45 Mich. 153, and like authorities. Counsel do not distinguish between actions brought purely to recover damages arising out of fraud and deceit and those, like the present one, brought to recover money in the hands of defendant which of right belonged to plaintiff’s assignors. The fact that the fraudulent conduct of a township officer rendered the taxes illegal is certainly a good ground of protest. By the terms of the statute the township is sued “ for the amount paid,” and recovery is had “if the tax is shown to be illegal for the reason shown in such protest.” The action is for money paid to defendant under conditions which require it to be returned.

The judgment ought not, for the errors assigned, to be reversed, and it is therefore affirmed, with costs.

McAlvay, Geant, Blaie, and Montgomeey, JJ., concurred.