text:
    PURCELL v. PURCELL.
    Husband and Wire — Conveyance to Wire —Abandonment by Wire — Rescission—Fraud.
    A conveyance of land made by a husband to his wife without consideration, no fraud being shown, will not be rescinded because the wife subsequently deserted him and refused to return on the ground that he had contracted and communicated to her a venereal disease.
    Appeal from Ingham; Wiest, J.
    Submitted June 30, 1910.
    (Docket No. 89.)
    Decided July 14, 1910.
    Bill by George E. Purcell against Katherine Purcell to set aside a deed on the ground of fraud. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    S'. B. Roe and J. E. Nichols, for complainant.

      L. B. Gardner, for defendant.
   Moore, J.

This is a sworn bill of complaint filed for the purpose of having a deed made by complainant to defendant set aside. From a decree dismissing the bill of complaint the case is brought here by appeal.

The parties were married in January, 1900. The complainant was in possession of 115 acres of land under a land contract. This land was deeded to him in 1901, subject to a mortgage of $2,700, and a claim of $265. After the marriage the parties lived upon this land. Later they lived in Webberville, then in Williamston, where they lived until April, 1906, when they removed to Lansing, where they were living at the time defendant left complainant. While living at Webberville in 1905, complainant for about three weeks was in the insane asylum at Kalamazoo. He was discharged because he was regarded as cured.

The substance of the stating part of the bill of complaint is as follows:

“Your orator further shows unto the court that up to and for some time previous to the middle of March, A. D. 1907, said defendant insisted and prevailed upon your orator to convey by deed the above-described lands to said defendant. That your orator thereupon told said defendant that the lands remaining in his name as they then were would be of as much benefit to her as they would if they were deeded to her in her name, that they were for the benefit of both, and that it would serve no beneficial or substantial purpose to convey from your orator said lands unto said defendant, but notwithstanding your orator’s explanation in this regard said defendant still insisted that your orator convey the same by deed unto her, she assigning as a reason for your orator deeding and conveying said lands to her that your orator might again in the near future become' mentally unbalanced, and while in that condition he might make some deal or bargain with reference to said lands not in keeping with strict business principles as practiced and performed by so-called business men, and that, if he continued rational, she would in the course of a short time deed and convey the same back to your orator. That she would be more at ease and more satisfied if he would convey said lands to her as aforesaid; finally, for the purpose of gratifying said defendant and putting her mind at ease, your orator did on or about the 12th day of March, A. D. 1907, convey lands by deed unto said defendant and without consideration of any value from said defendant to your orator, your orator thinking when he so deeded to her that he was gratifying said defendant’s wishes and that it would make no material or substantial difference to him or to her, as he then expected and well hoped and supposed and assumed that your orator and said defendant were to continue to live together in a pleasant and peaceable manner, as is becoming a husband and wife, and that the benefits and enjoyments derived from said lands were to be shared and enjoyed by and between the parties hereto, and that in the course of a few weeks said defendant would become satisfied of the permanent rationality of your orator and redeed said lands back to your orator.
“Your orator further represents unto the court that immediately after the conveyance by deed of the said lands by your orator unto said defendant as aforesaid, sbe, the defendant, represented and pretended that she desired to go to visit her relatives living near the village of Williamston and while there to take some medical treatment of a local physician in the village of Williamston, and that she would return home in the course of a few days thereafter; whereupon said defendant did go to her relatives near the village of Williamston as aforesaid, but has never returned to live with your orator as your orator expected and well hoped she would do. That your orator, after waiting for a period of about nine days from the time she so went away on said visit as aforesaid, went down to where she was staying near the village of Williamston to see what was the cause of her staying away from their home so long without informing your orator, and when he thus went and saw her she then told him for the first time that she was not intending and did not intend to live with him any longer, and that she was not coming back to him nor to his home in the city of Lansing, where they were living at the time she so went away as aforesaid. Your orator then told her that he could not understand why she so refused to live with him and why she would not return with him to his home in the said city of Lansing, whereupon she told your orator that she absolutely refused to live with him longer, and that since she had procured the deed and conveyance of the said lands it suited her far better to leave him and live separate and apart from him. That your orator prevailed upon and used all reasonable persuasion to have said defendant return to his home and live with him as his wife, but that, on the contrary, she absolutely and wilfully refused so to do, and still wilfully refuses to return and live with your orator.
“ That at the time said defendant was persuading your orator to deed and convey said lands to her, your orator believed that said defendant was bona fide and in good faith in her representations to your orator, and that her purpose was honest, and that she intended to live with him as his wife, and that she would redeed to your orator the above-mentioned lands as she had promised your orator to do, but, on the contrary thereof, the defendant at the time she so persuaded your ■ orator to convey said lands to her was not in good faith, and her representations to your orator were not bona fide and honest in that regard, and she did not intend to live with your orator as his wife at any time after she was able to procure a deed and conveyance of said lands, but wantonly and fraudulently did she represent and pretend to your orator that she was apprehensive as to his mental condition, and was wanton and fraudulent in conducting herself in a manner to lead your orator to believe that she intended to live with him, and was wanton and fraudulent in procuring the deed and conveyance of the said lands unto herself, and that when she procured said deed and conveyance unto herself as aforesaid, and during the time that she was persuading your orator to deed the same, she was not intending and did not intend to live with your orator, in the event that she was successful in procuring a deed and conveyance unto herself of the lands as above set forth. That the said lands were all the property that your orator owns, and is the only property that he has on earth.”

Defendant answered the bill of complaint. Among other things stated in the answer is the following:

“She denies she' insisted or otherwise persuaded said complainant to convey the land to her. That for reasons unknown to this defendant at the time of said conveyance, said complainant was extremely anxious to make a conveyance to this defendant. That she did not become aware of his reasons for making said conveyance until after the deed was actually drawn, executed, and delivered, after which said complainant said he conveyed the land to her for the express purpose of defeating his creditors. And then said: ‘Now they can all go to hell,’ that he would not pay any of them anything. This defendant alleges the truth to be that said complainant was a poor manager, unthrifty, and a person constantly in debt. That she fears, believes, has good reason to believe, and therefore charges the truth to be, that if he had not conveyed said premises to this defendant he would háve had nothing. She denies that she ever promised to reconvey the land to said complainant. She denies that she told said complainant that it made no material or substantial difference to him or to her in the event that he made said conveyance to her; (But she avers that she did not, at the time of said conveyance, know of any reason why it should make any material difference between them.) She admits that shortly after the conveyance of said land to her she told said complainant that ‘ she desired to go to visit her relatives living near the village of Williamston, and while there to take some medical treatment of a local physician in the village of Williamston;’ that she expected to return to her home shortly after her departure» from the said city of Lansing.
“She avers and alleges the truth to be that she was not, at the time she was residing in the city of Lansing, and up to the time that she started to the village of Williamston to consult the local physician there, aware of her true condition. That she learned upon her consulting with her physician at Williamston that she was suffering from a most loathsome venereal disease. That after she learned of her true condition and knowing that she contracted said disease from said complainant, and then knowing that said complainant had a loathsome disease, she then refused and has always steadfastly refused from such time to return to the city of Lansing and live or cohabit with said complainant. She admits that she informed said complainant that she did not intend to live with him any longer. This defendant denies that she refused to tell defendant why she would not live with him longer. She avers the truth to be that she did tell him that she had contracted a venereal disease from him; that because of his diseased condition, and because she had contracted the said disease from him, she would not live with him longer.
“ She denies that at the time she received said deed as aforesaid, that she had formed any intention to quit said complainant or not live with him. She denies that she ever told said defondant that because of his mental condition she was afraid that he would be unable to take care of said property, or by reason thereof she wished a conveyance to herself.”

The case was put at issue by proper pleadings and was heard in open court. The circuit judge filed a written opinion in which he stated that he could not find that the deed was procured by fraud or undue influence. At the time the deed was made complainant was about 39 years of age, and defendant was 12 years younger. There is no claim that his mind at that time was clouded. There is nothing in the record to show that he did not understand fully the legal effect of executing and delivering the deed. There were three children born to the parties, two of whom died in infancy. The oldest one is now upwards of nine years of age.

We agree with the learned circuit judge that complainant has failed to establish that the deed was procured by either fraud or undue influence. We also think he has failed to show that there was an agreement to reconvey the property to him. We are satisfied that defendant expected to continue to live with complainant when the deed was made, bub it is equally clear that she did not know at that time that complainant had a loathsome disease which he communicated to her. We are satisfied, also, that the cause of defendant’s going home was because she was ill, and that she first learned from her family physician that she, too, had a loathsome disease, well advanced. She testified this disease was contracted from the complainant, and that it was because of this fact that she refused to return to him. We think she testified to the truth in this regard. Complainant has himself to blame for the failure of defendant to return to him, and to continue in her relationship as his wife.

The trial judge made a proper decree under Jackson v. Cleveland, 15 Mich. 94 (90 Am. Dec. 266), and Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). See, also, Draper v. Brown, 153 Mich., at page 133 (117 N. W. 213).

The decree is affirmed, with costs.

Bird, C. J., and Ostrander, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    NELSON v. GIBE.
    1. Vendor and Purchaser — Equity— Specific Performance.
    Tlie vendor in a land contract who has been dispossessed of a portion of the premises described, by adverse occupation of third parties, may not compel the specific performance of the contract and the payment of the entire purchase price, on the theory that a conveyance of the parcel as bounded and determined by such adverse holding and by the acquiescence of the grantor’s predecessors in title, should be accepted as a performance of the agreement.
    2. Same — Contract — Breach — Specific Enforcement Pro Tanto.
    The purchaser may, however, elect to accept the premises to which the vendor has title, as a performance pro tanto and abate the purchase price in proportion to the deficiency.
    3. Same — Foreclosure of Contract — Equitable Relief to Defendant.
    Under proper pleadings, the purchaser may obtain affirmative relief by virtue of the deficiency, in the form of an accounting for overpayments made, specific enforcement pro tanto and an equitable adjustment of the purchase price, whether the suit by the purchaser is to foreclose the land contract or compel its specific performance.
    Appeal from Newaygo; Palmer, J.
    Submitted April 11, 1910.
    (Docket No. 57.)
    Decided July 15, 1910.
    Bill by Swan Nelson and others against Samuel B. Gibe to foreclose a land contract. Defendants filed an answer in the nature of a cross-bill claiming affirmative relief. From a decree for complainants, defendant appeals.
    Reversed, and remanded.

      George Luton, for complainants.

      Albert G. Day, for defendant.
   McAlvay, J.

The bill of complaint was filed in this case by complainants against defendant to foreclose a certain land contract, claiming a balance due and unpaid. The contract in question was entered into between the parties December 3, 1904, wherein complainants, who claimed to own the title in fee of the premises, agreed to sell, and defendant to purchase, all that certain piece or parcel of land situate and being in the village and county of Newaygo, State of Michigan, and described as lot 14 in block 116 of the village of Newaygo, according to the map or plat on record in the office of the register of deeds of Newaygo county,” for the consideration of $500 with interest at 6 per cent.

Payments were to be made at certain times, and all of the purchase price except $100 and interest thereon had been fully paid at the time the suit was instituted. The terms of the agreement are the ones usual in the ordinary short form land contract, and, among other things, complainants covenanted that, upon the fulfillment of its conditions by defendant, by a good and sufficient warranty deed, to convey to him said premises as described. The bill alleges that defendant immediately went into possession of said lot and moved into the house situated thereon, and has since continued in such occupancy. The answer of defendant in the nature of a cross-bill admits the execution of the contract and the payments made, and that complainants claimed at the time to be owners of said lot as described in fee, but denies that they were in possession of the whole of it, or that they ever gave to him, or he ever received from them, such possession; that he never discovered this fact, or that the premises of which he received possession were not the premises described in the contract, until after he had paid $400, principal and interest on the contract, when, in having a survey made, because of a dispute with an adjoining owner relative to the lines of some other lots, it appeared that Mr. Boyd, who owned lot 13 next east of this lot 14, was and had for many years been in possession of the east 23 feet and 2 inches of the same. Defendant notified complainants of this fact January 9, 1909, in writing, stating that the balance of the purchase price was ready, and that they dispossess Boyd and give him possession. This notice was given before complainants made offer of a deed, and defendant’s offer is continued in his answer. He asks for affirmative relief, that complainants be decreed to deed to him all that part of lot 14 of which they have the legal right of possession, and to account to him for over-payment. An answer was filed to the cross-bill and issues were joined. A hearing was had, and a decree granted dismissing the cross-bill and granting complainants relief as prayed. The amount fixed as due to them was $109. In default of payment of this amount lot 14 of block 116 was ordered sold, etc. Defendant on appeal asks for a reversal of this decree.

The record shows without dispute that Mr. Boyd, owner on this block No. 116, next east of lot 14, which is described in the contract, had for more than 20 years occupied 23 feet and 2 inches of said lot according to the recorded plat thereof. It appears that this lot was located in the southwest corner of the block; the plat showing that it was 66 feet fronting on Quarter Line street, and 165 feet deep, with Third street on the west side of it. The accuracy of the survey made by the county surveyor is not disputed. Third street on the plat runs north from Quarter Line street apparently to the river, but the record shows that 132 feet beyond the northwest corner of lot 14 the abrupt bank pitches down to the river 400 feet. Defendant also owns lot 1 of block 116 directly north of lot 14, and fronting 66 feet on Third street which is the only way of ingress or egress to and from lot 1 and the lot next north of it. It appears that at the time the contract between these parties was made there was a fence across Third street, and the land had been at least partly cultivated by complainants’ father, who was then owner of lot 14, and but part of this street was used as an alley by the owner of the premises on the west side of it. There was no fence on the west side of lot 14 along Third street. Defendant after he moved in used and cultivated about three rods of Third street west of lot 14. The barn on this lot was built partly in this street. At the time of making the contract complainants’ property, sold as lot 14, according to the recorded plat, apparently extended from the old fence up to which Mr. Boyd occupied, west partly across Third street, and was shown to defendant by one of the complainants, and defendant supposed that this was in fact lot 14, and did not know the difference until the survey was made. The next year after he entered into possession, an ordinance having been passed restraining cattle from running at large, he took down this fence across Third street. These detailed facts are material only as bearing upon the proposition that these premises which defendant viewed and purchased as lot 14 presented the physical appearance of a full-sized lot. The record shows little or no diagreement upon the facts presented.

The first material and undisputed fact is that complainants covenanted to convey to defendant this lot 14, according to the recorded plat thereof, and it also appears undisputed that complainants could not then and could not at the time of their proffer of a warranty deed and demand for the balance claimed due, convey or put defendant in possession of the whole of such lot, for the reason that Boyd, the owner of lot 13 next east, had been for many years in open occupancy of the east 23} feet of lot 14. As soon as defendant discovered this fact he notified complainants. The record shows that complainants’ father knew of this occupancy by Boyd, and recognized the old fence as the line between lots 13 and 14. Defendant contends that complainants are bound by their contract according to its terms; that by reference to the recorded plat it became a part of the contract, and that he is entitled to a conveyance of all the premises contained in the lot purchased according to the plat; that complainants not being in a position to convey to him all of said lot, he is entitled to an accounting, and a repayment of the excess he has overpaid, and a conveyance of such part of said lot as he has actually received from complainants. Complainants contend that defendant is concluded by acquiescence of his grantors for many years, as to the east line, and that by the occupation of the street on the west complainants acquired title to it, and defendant in fact will receive more than 66 feet front on Quarter Line street; that the testimony offered to show where the east line of lot 14, according to the recorded plat, was actually located, was inadmissible, because a court of law and not of equity should determine such question. Defendant is not seeking to disturb any rights acquired by Mr. Boyd by reason of acquiescence by complainants in the line between lots 13 and 14. Admittedly they cannot convey to him title to all of lot 14 according to the recorded plat. He asks that complainants who demand specific performance of this contract on his part, or a forfeiture by foreclosure, shall do that which is equitable.

The question is, Are they entitled to the relief they seek ? More than one-third of this lot never belonged to complainants. Whether at the time of entering into the contract complainants believed that they owned it is immaterial. As far as the proposition of law is concerned they might have intended to purchase it, or, if it was incumbered, have expected to remove the incumbrance. They are bound by the terms of their contract. They agreed to sell all of the land described. To grant them the relief asked would operate to allow them to take advantage of their own default. Specific performance of a land contract will not be granted where the vendor is unable to perform, but the purchaser may elect to proceed pro tanto, with an abatement in the purchase price for the deficiency. 26 Am. & Eng. Enc. Law (2d Ed.), p. 116; Pomeroy on Contracts (2d Ed.), § 347 et seq. It is immaterial what the form of the action may be if the relief sought be identical. This principle is applicable to this case.

Defendant by proper pleadings had asked the court to equitably determine the rights of the parties. He is willing to accept ,a warranty deed for the portion of the premises complainants own, but asks that they account to him for overpayment already made. He should have been given the affirmative relief he asked. It is in accord with sound principles of equity, and is supported by reason and authority. The court, having obtained jurisdiction of the subject-matter and the parties, was authorized to finally determine the dispute.

The decree of the circuit court must be reversed, because there is no evidence in the case from which this court can determine the amount which should be deducted from the contract price by reason of complainants’ default in title to 23£ feet of this lot, and how much less said premises are worth by reason thereof. The case must be remanded for the purpose of taking testimony upon that question to determine that amount, and also to determine the amount defendant has overpaid, if any, and the interest thereon, and all other interest to which he is entitled, and that thereupon a decree be entered in his favor for a conveyance by warranty deed to him of 42f feet of said lot, and for a money judgment for the amount to which he is found to be entitled over and above his payments, with interest from August 20, 1909, and that he recover all costs of both courts to be taxed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


author:
Brooke, J.
      Moore, J.

text:
      In re FITZGIBBONS’ ESTATE.
    Marriage — Husband and Wire — Common Law Relation — Removal or Disqualirioation or Husband — Good Faith.
    A bigamous marriage, entered into by the wife in good faith and by the husband with knowledge that he had a living wife in another State, becomes valid after the removal of his disqualification by the death of the first wife, and continued cohabitation by the living parties, although the wife never learned of the existence or death of the prior wife and the husband was ignorant of her decease. Brooke, Ostrander, Hooker, andMoALVAY, JJ., dissenting.
    Error to Ionia; Davis, J.
    Submitted February 17, 1910,
    (Docket No. 81.)
    Reargued July 1, 1910.
    Decided July 14,1910.
    Rehearing denied December 8,1910.
    Sarah Jane Fitzgibbons petitioned for her appointment as administratrix of the estate of William Fitzgibbons, deceased, claiming to be his widow, and was appointed by an order of the probate court. Later, William Fitzgibbons, Jr., filed a petition asking for her removal and denying the validity of the marriage. Said later petition was granted, the administratrix was removed and the heirs determined, and she appealed to the circuit court. A judgment sustaining the validity of the marriage is reviewed by William Fitzgibbons, Jr., and other heirs on writ of error.
    Affirmed by a divided court.

      A. A. & H. A, Ellis, for appellants.

      B. A. Hawley, for appellee.
   Brooke, J.

The writ of error in this case is prosecuted by certain heirs of William Fitzgibbons, deceased, for the purpose of reviewing a judgment of the circuit court, by which it was determined that Sarah Jane Fitzgibbons is the lawful widow of deceased, and, as such, entitled to participate in his estate.

Certain facts appear in the record, about which there is no dispute. William Fitzgibbons, deceased, was married to Armenia Allen, at New Haven, Oswego county, New York, in the year 1868. After the marriage, he and his wife lived at North Yolney, New York, until 1876, during which time, two children, G-race and William, Jr., were born to them. The family then removed to Galt, Canada, where a third child, Ella, was born. When the youngest child, Ella, was about two years old, in 1878, deceased sent his wife, Armenia, and the three children, back to New York State, and himself came to Michigan. From 1878 to June 20, 1881, deceased was in correspondence with his wife, Armenia. In 1880, he had settled in Saranac, Ionia county, this State, and there boarded with a family named Stewart. Deceased shortly began paying court to a daughter, Sarah Jane (appellee), who was then about 19 years of age. On February 14, 1881, he took her to Grand Rapids and there went through a marriage ceremony with her, after which they returned to Saranac and commenced to live together as husband and wife. Their home remained in Saranac during the balance of his life, though he was absent at times on business. Appellee bore to deceased one child, a daughter, Madeline, born February 6, 1891. From 1881 to 1900 deceased had no correspondence with his family in New York, so far as the record' discloses. In the latter year, his son, William, went to Saranac and discovered himself to his father. Deceased took his son to his home for dinner and supper and held a long conference with him, in which he told his son that he was in Armenia’s power, that he did not want to be punished for bigamy, and that when he, the son, needed help, to let him know. Thereafter, and up to the month of his death (November 13, 1904), he paid various small sums to his son, which were devoted to the care of Armenia, who died September 3, 1903. It is apparent that deceased was not aware of the death of his wife, because he sent his son $20 but a few days before his own death. During the 23 years appellee and deceased lived in Saranac, they were reputed to be husband and wife; they received and were received socially, moving among the best people of the vicinity. Deceased seems to have acquired the respect and confidence of the community, holding the office of postmaster at Saranac for seven or eight years preceding his death.

Prior to her marriage with deceased, appellee heard that deceased was a married man. Upon inquiry, deceased denied the fact of his prior marriage. Again, in 1891, shortly after the birth of the daughter, appellee was told by Mary Fitzgibbons, a sister-in-law of deceased, of the former marriage, and that there were three children. Appellee then made further inquiry of deceased, whereupon, she testifies, he admitted his former marriage, but claimed to have a divorce. She makes the claim that she implicitly relied upon the statements made to her by deceased, both before the marriage ceremony and later, when she taxed him with his bad faith. She states that in spite of the rumors which reached her ears she went through the entire 23 years of her association with deceased in absolute ignorance of the existence of his wife, and in good faith believing herself to be his lawful wife. She swears that she had no knowledge of the death of Armenia, in 1903, because she never knew of Armenia’s existence, and that after Armenia’s death no new contract was made between herself and her husband, their relations continuing after that event (of which deceased also was ignorant) in reliance upon the ceremonial marriage, contracted in 1881.

Under the facts above disclosed, the court submitted to the jury the question of whether or not appellee was the legal widow of deceased, making the determination of the jury, upon that point, rest solely upon the good faith of appellee in entering into the contract and in continuing to live with deceased thereunder, up to the time of his death, using the following language:

“It is a question of belief. She must have been informed to that degree the burden is upon her to establish. she was acting in good faith after the other side have once established there was a former wife living at the time of the marriage. Then the burden shifts to Jennie and it is incumbent upon her to show by a preponderance of evidence she acted in good faith; that is, she believed William Fitzgibbons was her lawful husband and there was no impediment to the marriage between her and William Fitzgibbons, if she honestly believed that, taking into consideration all that was said and told her in the discussion she had with her husband, if she was convinced from what he said, and other sources, these rumors were false and untrue and she was laboring under the honest belief that she was his lawful wife, that she had the legal right to marry him and he to marry her at the time it was done, she would be considered innocent, and the law would consider her the legal wife and widow of the deceased because of the inference that they had a common-law marriage after the death of the first wife, provided she was innocent all the way along.”

The legitimacy of Madeline was made to depend upon the finding of the jury as to her mother’s legal status. The jury, apparently with much difficulty, found that appellee was the legal widow of deceased and that Madeline was his legitimate daughter.

Section 8589, 3 Comp. Laws, provides:

“Marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of parties capable in law of contracting, is essential.”

Section 8616 provides:

“ All marriages which áre prohibited by law, on account of consanguinity or affinity between the parties, or on account of either of them having a former wife or husband then living, * * * shall, if solemnized within this State, be absolutely void- without any decree of divorce or other legal process.”

It being conceded upon this record that the marriage between deceased and Armenia Allen, in 1868, was a valid union and that Armenia was alive and undivorced in 1881, when the contract between deceased and appellee was en» tered into, it is clear that the later marriage was absolutely void, and, during the life of Armenia, afforded no protection to appellee. At no time prior to Armenia’s death was deceased legally competent to give his assent to a union with appellee. His relations with appellee during those 22 years were meretricious and known to him to be such, for on June 20, 1881, four months after the ceremony was performed between him and appellee, he wrote his wife, Armenia, acknowledging the receipt of a letter from her, and promising to return to her as soon as possible. On September 3, 1903, Armenia died. Then, for the first time, it became possible for deceased and appellee to intermarry. Did they in fact do so ?

It is apparent from the record that during the last year of the life of deceased (following the death of his wife) he treated appellee in all overt respects as a husband should treat his wife. He addressed numerous letters to her as his wife, and subscribed them as her husband, and during that year he lived at their home with her for several months, during which time the relations of husband and wife seem to have been sustained, so far as was apparent to the world. His conduct, however, during this period was not different in any respect from his conduct during the preceding 22 years, when he knew his relations with her were adulterous. Under these circumstances, it is claimed by the appellee, and, in effect, so charged by the court, that, assuming the good faith of the appellee in entering into the void contract and continuing to live under it, a marriage should be presumed as soon as the impediment was removed. These facts and circumstances, if uncontradicted and unexplained, might support the inference that a new and valid contract was entered into upon the death of Armenia, but such inference is impossible, if negatived by positive evidence.

Schouler’s Domestic Relations (5th Ed.), § 15, defines marriage as follows:

“ To constitute a perfect union, the contracting parties should be two persons of the opposite sexes, without disqualification of blood or condition, both mentally competent and physically fit to discharge the duties of the relation, neither of them being bound by a previous nuptial tie, neither of them withholding a free assent.”

And further, at section 26:

“A union once originating between man and woman, purely illicit in its character, and voluntarily so, there must appear some formal and explicit agreement between the parties thereto, or a marriage ceremony, or some open or visible change in their habits and relations, pointing to honest intentions, before their alliance can be regarded as converted into either a formal or an informal marriage. Nor is the issue between informal marriage and illicit intercourse to be concluded by the conduct of the pair towards society. They may, for convenience or decency’s sake, hold themselves out to third persons as man and wife, while yet sustaining at law, and intentionally, a purely meretricious relation.”

Eversley on Domestic Relations, p. 2, says:

“Marriageis a state or relation depending for its existence upon the fact of parties competent to contract the relation, and their legally voluntary present consent to do so.”

At page 7, he says further:

“The presumption of marriage, arising from cohabitation and repute, can only be rebutted by clear and satisfactory evidence. * * * But this presumption of law in favor of marriage does not hold good under all circumstances.”

In 1 Bishop on Marriage, Divorce & Separation, § 844, it is said:

“ Where all the facts are covered by direct proofs, and there is no room to presume others, they will be held to constitute marriage only when they disclose a concurring consent to it, by the two minds at the same instant.”

Particular stress is laid by counsel for appellee upon some language contained in the opinion of this court, in the case of Barker v. Valentine, 125 Mich. 336 (84 N. W. 297, 51 L. R. A. 787, 84 Am. St. Rep. 578), but we believe that a careful reading of the case will disclose that it is not out of harmony with the earlier decisions of the court. In that case, Valentine had started divorce proceedings against his first wife, Ida, in New York. No divorce was granted. He removed to Michigan and entered into relations with the second woman, Margaret. After four years, he and Margaret, in September, 1889, returned to New York where Ida caused a warrant to be issued against him for nonsupport. Ida died in October, 1889, a fact apparently known to both Valentine and Margaret. They returned to Detroit where he made application in a fraternal order for insurance, describing Margaret as his wife. He introduced her as his wife, lived with her as such, and she was so recognized by his friends and relatives for seven years.

We understand that the court held in this case simply that the evidence disclosed by the record was sufficient to support an inference that the parties had entered into a new contract, after the removal of the impediment. For, in discussing the cases of Rose v. Rose, 67 Mich. 619 (35 N. W. 802), and Van Dusan v. Van Dusan, 97 Mich. 70 (56 N. W. 234), the court said:

“There is nothing in either of these cases to indicate that if, after the impediment to a lawful marriage between them had ceased, they had intended to take each other as husband and wife, and had indicated that intention by treating each other in all respects as though they were married, and had introduced each other as husband and wife, and had so held themselves out to the world, and had lived together as husband and wife, the court would not have held that the presumption that the illicit relation, which existed when they commenced to live with each other, continued after the impediment to their marriage ceased, was overcome.”

An examination of the authorities cited in this case, both from Michigan and other States, shows that in each case the question as to whether or not a common-law marriage existed was determined upon the evidence.

A careful examination of all the cases in Michigan leads us to the conclusion that a contract of marriage cannot be presumed when such presumption would do violence to the facts in the case, fully covered by the proofs. Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164); Peet v. Peet, 52 Mich. 464 (18 N. W. 220); Rose v. Rose, supra; Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293); Van Dusan v. Van Dusan, supra,; Flanagan v. Flanagan, 116 Mich. 185 (74 N. W. 460); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609); Judson v. Judson, 147 Mich. 518 (111 N. W. 78).

The question in the case at bar appears to us to be: Did deceased and appellee, at any time subsequent to the removal of the impediment, presently agree to take each other for husband and wife, and live together in that relation ? Clearly they did not. He did not, because he died in the belief that his wife, Armenia, was still alive. Her assent to the new contract, if it could be assumed, and it is negatived by her own testimony, would avail nothing, for both must consent at the same time, else no contract follows. To predicate the legal status of the appellee upon her good faith alone is not only contrary to authority, but would result, possibly, in the absurdity of a man leaving two or more legal widows.

If deceased, in the case at bar, had entered into a contract of marriage with a woman in South Carolina, the State in which he was doing business at the time of his death, that woman, entering into the relation in good faith, would also have become his wife upon the removal of the impediment, and would now also be his legal widow. We are aware that the principle contended for by appellee has received recognition to some extent in some other jurisdictions, notably in a late case in New York (In re Wells’ Estate, 123 App. Div. 79 (108 N. Y. Supp. 164), 194 N. Y. 548 [87 N. E. 1129]), but we are satisfied that no such doctrine has been or should be incorporated into the law of this State.

The judgment should be reversed.

Ostrander, Hooker, and McAlvay, JJ., concurred with Brooke, J.

Moore, J.

I cannot agree with the conclusion reached by Justice Brooke. The record shows that Mrs. Fitzgibbons entered upon and continued her relations with William Fitzgibbons and bore a child to him in full belief that she was lawfully wedded to him, and without knowledge that there was any legal impediment to their entering into the marriage. The record is equally clear that after the impediment to their marriage was removed Mr. Fitzgibbons held Mrs. Fitzgibbons out to the world as being his wife. After that event he addressed her as his wife in at least 50 letters and signed himself as her husband. Under conditions like these it must be said that the authorities are not agreed. The precise question, has not been presented and passed upon by this court. There is an interesting discussion of the issue of marriage or no marriage in the case of Bechtel v. Barton, 147 Mich. 318 (110 N. W. 935). The nearest case in point to the one before us is Barker v. Valentine, 125 Mich. 336 (84 N. W. 297, 51 L. R. A. 787, 84 Am. St. Rep. 578), in which language is used in the opinion which the trial judge thought justified him in giving the charge he did. It may be true that the language used in the opinion was not necessary to the disposition of the case, but it was fully justified by the authorities cited on pages 342 and 343 of the opinion.

Is it necessary, in the interest of public policy, that when, women enter into the marriage relation and continue it in the full belief that they are lawfully wedded wives, and bear children to their husbands in the full belief that those children have a right to bear his name, and the relation continues after the legal impediment is removed, the woman all the time believing she is a lawful wife, and the man holding her out as such, that she should be characterized as though she was a harlot, and had knowingly entered into meretricious relations ? Can it be urged as in furtherance of good morals that children born under such circumstances may be truthfully characterized as-' illegitimates ? An affirmative answer to these questions shocks one’s sense of justice.

This view has been taken by very respectable courts. The case of In re Wells’ Estate, 123 App. Div. 79 (108 N. Y. 164), is directly in point. In the opinion occurs the following:

“ In the case of Rose v. Clark, 8 Paige (N. Y.), 582, Chancellor Walworth uses this language:
“ ‘After all that had transpired previous to the death of the intestate (in this ease Arthur Wells), I think he would have been precluded from denying that she (the appellant) was his wife. * * * And if the evidence was sufficient to raise the presumption of a legal marriage as to him, in his lifetime, it must neoessarily be sufficient to entitle her representative to the widow’s portion of the estate, under the statute of distributions.’
“ It is hardly conceivable that in the case at bar Arthur Wells, if living, would be heard to deny that the appellant was his'lawful wife. Expression was given to the same principle in the case of Townsend v. Van Buskirk, 33 Misc. Rep. 287 (68 N. Y. Supp. 512), in an opinion written by Mr. Justice Maddox. The justice said:
“ ‘ There is to my mind a well-defined distinction between illicit relations, forbidden because of an undisclosed disability on the part of one of the parties thereto, and such relations as are mutually meretricious, involving on the part of the woman knowledge that its character is not, and is not intended to be, matrimonial, but of a wanton and lustful nature. * * *
“ ‘ There can be no other conclusion, from all the evidence in the case, that she and Townsend desired marriage, that that was their intention, and consequently “their cohabitation, thus matrimonially meant,” made “them husband and wife from the moment when the disability ” on his part was removed, and it was immaterial whether he knew of that removal, * * * the fact being that it was removed, and their consent to the matrimonial relation may be inferred from their acts and conduct.’

“See, also, Maynard v. Hill, 125 U. S. 190 (8 Sup. Ct. 723), where marriage is defined to be—

‘“Something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend, not upon their agreement, but upon the law, statutory or common.’

“In the case of Eaton v. Eaton, 66 Neb. 676 (92 N. W. 995, 60 L. R. A. 605), the same question was considered, and the court said:

“‘Another question to be determined is the legal effect of the cohabitation of the parties after the impediment to their marriage had been removed. In this State the only thing essential to a marriage is the consent of parties capable of contracting. * * * If the parties live together and intend to sustain toward each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married.’

“See, also, State v. Worthingham, 23 Minn. 528.

“The position taken upon this question by the Illinois courts is illustrated in the cases of Cartwright v. McGown, 121 Ill. 388 (12 N. E. 737, 2 Am. St. Rep. 105); Robinson v. Ruprecht, 191 Ill. 424 (61 N. E. 631); Manning v. Spruck, 199 Ill. 447 (65 N. E. 342). See, also, Stein v. Stein, 66 Ill. App. 526.

“ Many other decisions rendered by the highest courts of other States might be cited to like effect. It seems to me, in view of the decisions and authorities which have been referred to, that the rule ought to be that where one person is free to enter into the matrimonial relation and does so in good faith, but the other party is incapable of entering into such relation because of a former wife or husband living, or other impediment, when such impediment is removed, if the parties continue matrimonial cohabitation, continue to introduce and recognize each other as husband and wife, and are so recognized by their relatives, friends, and by society, it ought to be held that from such moment they are actually husband and wife, and that under such circumstances it is of no importance that a formal agreement to live together as husband and wife was not entered into, or that either did not know that the impediment to such an agreement had been removed, when, in fact, it had been so removed, and both parties were competent to enter into the matrimonial state.”

In Eaton v. Eaton, supra, it appeared that the parties were married March 21, 1899; that plaintiff, Harriet M. Eaton, obtained a decree of divorce from Enis Goff in Johnson county, December 2, 1898; that said decree of divorce was obtained without the knowledge of Eli Eaton; that the parties to this suit lived together until November 30, 1899; that the decree of divorce from Enis Goff, the former husband of plaintiff, was obtained less than six months prior to the marriage of plaintiff and defendant; that such marriage was in violation of law and a nullity; and that defendant had no knowledge of the time when the prior divorce was procured until just prior to the commencement of this action. The marriage between plaintiff and defendant was adjudged to be null and void.

In reversing this decree the court used the following language:

“Another question to be determined is the legal effect of the cohabitation of the parties after the impediment to their marriage had been removed. In this State the only thing essential to a marriage is the consent of parties capable of contracting. Bailey v. State, 36 Neb. 808 (55 N. W. 241); Gibson v. Gibson, 24 Neb. 394 (39 N. W. 450). Even a license is not indispensable. Haggin v. Haggin, 35 Neb. 375 (53 N. W. 209). If the parties live together and intend to sustain toward each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married. The marriage between the plaintiff and defendant was an attempt made in good faith to form a legal union. Both intended to live in wedlock. In the absence of an impediment to the marriage no ceremony would have been required; the mutual consent of the parties would havebeen sufficient. When the impediment was removed, why may not consent be inferred from continued cohabitation? This exact question arose in the House of Lords in the case of De Thoren v. Attorney General, reported in L. R. 1 App. Cas. 686, decided in 1876. The question turned upon the legitimacy of certain children born to a man and woman who were married in Scotland, going through a public ceremony in a church, believing the marriage a valid one. The man, however, had been divorced, and the time for appeal from the decree at nisi prius had not expired at the time of the public marriage. In that case the contention was that the inference of marriage was rebutted, because the parties had commenced living together in pursuance of an invalid marriage, and that the consent deducible from cohabitation must be referred to the ineffectual ceremony. But it was there decided that—
‘“It must be inferred that the matrimonial consent was interchanged as soon as the parties were enabled, by the removal of the impediment, to enter into the contract.’
“ And further:
‘“The ceremony which took place, although invalid, was undoubtedly a consent by the parties to live together as husband and wife. And their subsequent cohabitation was proof of continued consent.’
“In the case cited, Lord Chelmsford said:
“ ‘Taking the facts as they are stated in the case, and applying the law to them, the court of session is of opinion that, assuming the ignorance of the parties of the invalidity of the ceremony of marriage, during the whole period of their cohabitation, yet after the removal of the impediment to their marriage and before the birth of their eldest son, they became married persons. I agree entirely with this opinion.’
“In Rose v. Clark, 8 Paige (N. Y.),574, Chancellor Walworth says:
‘“It appears, however, from decisions in our own courts, as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation, and general reputation, even where the parties originally came together under a void contract of marriage ’
Fenton v. Reed, 4 Johns. (N. Y.) 52 (4 Am. Dec. 244); Blanchard v. Lambert, 43 Iowa, 228 (22 Am. Rep. 245). In the recent case of University of Michigan v. McGuckin, 62 Neb. 489 (87 N. W. 180, 57 L. R. A. 917), it was held, although the relations of the parties were originally meretricious, that marriage is a social status, the existence of which may be shown by conduct clearly indicating free consent and mutual intention to live in wedlock. Upon the conceded facts in this, case, our conclusion is that the parties, by continuing to live together in the matrimonial relation, contracted a valid marriage.”

In the case of Robinson v. Ruprecht, Curtis E. Robin. son and Johannah. Schoeninger began living together without pretense of marriage. In April, 1873, they went before a justice of the peace, where a marriage ceremony was performed. Previous to this ceremony both parties had been married. The woman supposed her first husband was dead, though he in fact was still living. Mr. Robinson had a prior wife living from whom he had not been divorced, as he well knew. The parties continued to live together as husband and wife until the death of Johannah, which occurred in April, 1891. The undivorced wife of Mr. Robinson died in December, 1875. Gottlieb Schoeninger, husband of said Johannah, died in May, 1890. There is nothing to indicate that knowledge of his death came to either of the parties. In disposing of the case the court used the following language:

“ The formal statutory celebration of marriage between said Curtis E., Sr., and said Johannah, indicated that it was their desire their subsequent connection should be considered and understood to be matrimonial. They in good faith, so far as this record discloses, at the time of the marriage, believed that Johannah was a widow and might lawfully marry, but Curtis E., Sr., at least, knew that he then had a living wife and could not lawfully enter into another marriage union. In 1875, about two years after their formal marriage, Mary J., the wife of said Curtis E., Sr., died, and within a few months thereafter said Curtis E., Sr., and Johannah, were advised that said Mary J. was no longer living. They then believed there was no impediment to their legal union as husband and wife. There is no direct proof they subsequently entered into a statutory marriage, but their actions, conduct, their cohabitation and repute, were foreign to and inconsistent with any relation other than that of husband and wife, and there can be no doubt but that after the death of said Mary J. the cohabitation between ■said Curtis E., Sr., and said Johannah, was matrimonial in the intent and belief of both of them. Their actions, life, and repute from henceforth during the remainder of their lives were those of husband and wife. The impediment to that legal relation was removed May 13, 1890, by the death of said Gottlieb, the husband of said Johannah. There is no proof on the question whether they were or were not advised of his death. They believed that he was dead when the ceremony of marriage was performed in McHenry county, in 1873, and so far as the record discloses were never advised to the contrary. Johannah lived nearly a year after the death of Gottlieb and died April 14,1891, and said Curtis E., Sr., survived Johannah but about one year. It was lawful after the death of Gottlieb for them to enter into the marriage relation. They believed their cohabitation was matrimonial, intended it shouM be so, and the presumption of marriage from cohabitation apparently matrimonial became applicable to their relation as husband and wife in aid of the legitimacy of their children. * * * The acts of each toward the other were those of husband and wife, and to said Martha J., Curtis E., Jr., and Bessie L., their children, who were members of the family, they deported themselves as father and mother. Their whole life was inconsistent with any other relation than that of husband and wife. A few months after the death of said Gottlieb Schoeninger, they, with the appellee children, visited the relatives of the husband in Massachusetts. Curtis E.,' Sr., introduced Johannah to his kindred as his wife and the appellee children as their children. He manifested parental pride in the children, was anxious the appellee daughters should exhibit their proficiency in music to his kindred, and declared his satisfaction that through appellee Curtis E., Jr., his name would be perpetuated. A family reunion was held at the house of his brother, Nathan S., at which Curtis E., Sr., Johannah, and the appellee children attended as a family. * * * A pew was rented in the South Park Avenue Church, and Curtis E., Sr., and Johannah attended services together there. Deeds were executed conveying to them property as husband and wife, naming them as such, and they uniformly treated and called each other husband and wife. Curtis E., Sr., applied for letters of administration on the estate of Johannah, declaring under oath therein that he was her widower. He received an engrossed copy of resolutions passed by a lodge of which he was a member, extending sympathy and condolence on the death of his wife, and he brought such copy home to the children. He directed her name, as Johannah Robinson, to be engraved upon the plate of her coffin, and an inscription to be engraved on her monument in which she was declared to be his wife, and caused to be published an obituary notice of her death, naming her as ‘Johannah, beloved wife of C. E. Robinson.’ A common-law marriage was thus established, and such marriages are valid in this State. Port v. Port, 70 Ill. 484; Elzas v. Elzas, 171 Ill. 632 (49 N. E. 717).”

What was done in the case just quoted was no more than was done in the case at bar. Mrs. Fitzgibbons all the time supposed she was the lawful wife of Mr. Fitzgibbons, and he having so represented her to the public and to herself after the legal impediment passed away, it is but scant justice to Mrs. Fitzgibbons and to her child and to the public to hold that she was at the time he died his legal wife.

The judgment should be affirmed.

Bird, C. J., and Blair and Stone, JJ., concurred with Moore, J.


author: Hooker, J. Blair, J.

text:
    HAMMOND v. MICHIGAN CENTRAL RAILROAD CO.
    1. Pleading — Demurrer—Appeal and Error.
    On demurrer to a declaration, the pleading must be considered more critically than if the defendant had gone to trial upon a plea to the merits, and unless on its face the declaration affirmatively shows actual negligence, the demurrer must be sustained.
    2. Master and Servant — Railroads—Negligence—Operation op Trains.
    It is not negligent for a roadmaster to order an engineer in charge of an engine to move it when another employé, who is working in the way, with his back to the engine, has a free method of escape, if customary warning is given.
    3. Same — Railroads—Signals.
    One who gives orders to a railroad engineer is not required to see that the track is clear of all persons, before communicating the order.
    4. Same — Warning Servant.
    Failure of the engineer to use due care in executing orders of his superior, cannot be charged to the latter, unless the customary care would not be commensurate with the danger, and the superior servant knew the circumstances.

      Error to Saginaw; Gage, J.
    Submitted April 20, 1910.
    (Docket No. 131).
    Decided July 14, 1910.
    Rehearing denied December 8, 1910.
    Case by Fred Hammond against the Michigan Central Railroad Company for personal injuries. An order sustaining a demurrer is reviewed by plaintiff on writ of error.
    Affirmed.

      De Vere Hall, for appellant.

      Watts 8. Humphrey {Humphrey, Grant & Baker, of counsel), for appellee.
   Hooker, J.

The declaration in this cause alleges that plaintiff was a sectionman on the defendant’s railroad; that his crew was ordered to the scene of an accident to aid in putting some derailed cars upon the track and restoring the road, which was out of repair by reason of the accident; that said accident called for the presence of certain superior officers of defendant, including its roadmaster, Burns, to assist in restoring the track. Plaintiff’s crew ran the hand car to a 'point a few feet from, and in front of, the engine belonging to the train that was derailed, and, after removing some plank from a flat car attached to the engine, the hand-car crew, at the direction of the plaintiff’s section foreman, proceeded to take the hand car from the track, plaintiff being upon the track with his back towards the engine; and while so engaged the roadmaster, without advising or warning plaintiff of his intention or purpose to do so, directed the engineer to move the same toward the plaintiff, whereupon he did so and injured the plaintiff. It further alleged: That it was the duty of defendant and said roadmaster:

(1) Not to have given directions to the engineer to move the engine toward the plaintiff while he was in a place of danger therefrom.

(2) Not to do so without advising or warning the plaintiff of such direction.

(3) Not to have assumed the direction and control of the movement of said engine without advising and warning plaintiff of such fact.

(4) To have advised and warned plaintiff of his intention to move such engine toward plaintiff before giving such direction.

That defendant was careless, negligent, and wrongful in the discharge of its said several duties in the following particulars:

(1) In that the roadmaster gave such direction while plaintiff was in a place of danger.

(2) In doing so without advising or warning him of such direction.

(3) In assuming the direction and control of the engine without advising and warning plaintiff of his direction.

(4) In failing to advise and warn plaintiff of his intention and purpose to direct the engineer to move the engine toward him before giving such direction.

The defendant demurred on several grounds:

(1) No negligence alleged.

(2) If negligence alleged, it is shown to have been act of fellow-servant of plaintiff.

(3) The action of the roadmaster was not the proximate cause of the injury.

(4) The declaration omits to allege knowledge by road-master that plaintiff was in a place of danger.

(5) That the risk of the danger causing the accident was assumed by plaintiff.

(6) That the declaration omits to show that it was any part of his duty or authority to direct the movement of the engine, ana therefore defendant is not responsible.

(7) That plaintiff was guilty of contributory negligence.

The demurrer was sustained, and plaintiff has appealed.

This cause being before us on demurrer, the declaration must be considered more critically than if defendant had gone to trial upon a plea to the merits. If it does not, upon its face, affirmatively show actionable negligence by defendant’s roadmaster, the demurrer was properly sustained.

The gist of plaintiff’s complaint is that the roadmaster directed the engineer in charge of the engine to move the same when the plaintiff was in a place of danger, i. e., a few feet in front of the engine upon the tracks and with his back toward the engine. Without intimating that circumstances might not be such as to make an order to move an engine negligent, we cannot say that an order to move an engine is negligent on the part of the foreman, when there is nothing to prevent the free and ready escape of the person in front of the engine from the track, and where there is nothing to indicate danger to him more than his presence on the track.

We have held that a foreman has a right to suppose that an engine will not be moved without a warning from the engineer, and when it is, and the person injured from the want of care in managing the engine, or without the usual warnings, if a fellow-servant of the engineer, must recover his damages from him, and cannot recover from the company. The engineer generally acts upon orders; but ordinarily the one giving or delivering the orders is not expected to see that the track is clear of all persons before communicating such orders to the engineer. The latter must use care in complying with his orders, and his failure to do so cannot be charged to the one who gives the orders to move his engine, unless the customary care would not be commensurate to the danger and the circumstances such as to make it the duty of the superior officer to know of the extraordinary danger. The declaration is defective under the decision in the case of Burrman v. Railway, 143 Mich. 689 (107 N. W. 709).

We held, in Williams v. Raper, 67 Mich. 427 (34 N. W. 890), that—

_ "A declaration should set out the facts which constitute his cause of action, logically and in their natural order, showing his right, the injury, and the consequent damage, and, if such pleading does not disclose a cause of action, no evidence can be introduced in support of it.”

This declaration does show that the engineer ran his engine against plaintiff, when moving it upon orders received from the roadmaster; but there is no allegation of fact indicating that the order was negligent or improper. Not only does the declaration contain no such allegation, but it does not state that the customary signals were omitted by the engineer, which we mention as a significant, though perhaps not a controlling, fact.

The judgment is affirmed.

Ostrander, Moore, and Stone, JJ., concurred.

Blair, J.

I concur in the result upon the ground that the declaration is defective in not stating that the road-master knew, or should have known, of plaintiff’s dangerous position.


author: Brooke, J.

text:
    McCAMMAN v. DAVIS.
    1. Evidence — Equity—Hearing—Partition.
    The court must base its decree upon testimony given in open court, not upon knowledge which the judge may have of the situation.
    2. Same — View oe Premises.
    Knowledge gained by the court, upon a view of the premises, might with propriety be used to determine which of two methods of sale should be adopted in partition proceedings, where both are supported by proofs; but may not be made the sole basis of a decree.
    3. Partition — Sale—Offering Separate Parcels.
    While the primary object of the partition sale is to obtain the highest possible sum for distribution, and the court may subdivide a parcel for purposes of the sale, if convinced upon a proper showing that such course would produce a higher bid, an order so providing must be based on proofs.

      4. Same — Parties—Tax Titles.
    Former owners of tax titles, whose claims to real property are adverse, are not proper parties to partition proceedings.
    5. Same — Expense oe Clearing Title.
    Complainants who procure an abstract of title and who, in good faith, purchase the interest of holders of tax titles against the premises at less expense than would be required by litigation to remove the consequent cloud upon the title, are entitled to be reimbursed from the proceeds of the partition sale.
    Appeal from Ingham; Collingwood, J.
    Submitted June 7, 1910.
    (Docket No. 6.)
    Decided July 14, 1910.
    Rehearing denied December 8, 1910.
    Bill by James R. McCamman and another against Charles J. Davis and others for the partition of certain real estate. From a decree ordering the property offered for sale first, in one parcel, afterwards in separate parcels, complainants appeal.
    Reversed.

      Horace S. Maynard, for complainants.

      Samuel H. Davis, for defendants.
    Complainants are the owners of an undivided five-sixths interest in the N. BJ. i of section 22, of town 4 north, of range 2 west, excepting therefrom the rights of way across said premises of two railroads. Defendant Charles J. Davis is the owner of the other undivided one-sixth interest in said premises. Complainants filed a bill for partition, setting out that the land lies in the city of Lansing, and thattupon the same is located a large bed of gravel, of uncertain area and depth, of great value because of its proximity to said city. They aver that a physical division of the property cannot be made so as to secure to each owner with certainty his fair share, and pray that it may be sold in bulk, and the proceeds divided between the owners, according to their several interests. To this bill defendant Davis filed a plea, setting forth that there were of record two several tax deeds, covering a part or the whole of said description, and that the holders thereof or their heirs should be made parties defendant. While this plea was pending, complainant purchased said tax titles for the sum of $36.79, and procured an abstract for the use of the court at an expense of $5. The plea was overruled, and defendants given leave to answer.
    The answer of defendant Davis admits all the material averments of the bill, including the averment that a physical division of the tract cannot be made with equity, but prays that in making the sale the commissioner may be ordered to sell the premises in three parcels,- the west parcel to contain about 50 acres, the center parcel to contain about 80 acres, and the east parcel to contain about 30 acres. The gravel deposit is located on the center parcel. Upon the hearing, both complainants were sworn, and both gave testimony to the effect that the property would, in their opinion, bring a higher price if sold as one parcel than it would if divided into three or more parcels. The defendant Davis offered no testimony. A hearing was had upon the settlement of the decree, at the conclusion of which the court entered a decree for the sale of the premises, paragraph 7 of which is as follows:.
    “ (7) Such sale shall be made at public auction, and the premises shall be offered as follows:
    “First. As three parcels described as follows:
    “ (a) All that portion of said premises lying west of the line formed by extending the center line of Lathrop street.
    “ (b) All that portion of said premises lying between the line formed by extending the center line of Shepard street and the line formed by extending the center line of Lathrop street.
    “(c) All that portion, of said premises lying between the line formed by the extension of the center line of Shepard street, and the east line of said premises;
    “Second. As one parcel.”
    Complainants appeal.
   Brooke, J.

(after stating the facts). It is urged by complainants that the court had no authority, under the proofs in this record, to do anything but decree a sale of tñe parcel en masse. It is to be noted that the record is barren of testimony to the effect that a sale, as ordered by paragraph 7 of the decree, will or may produce more than a sale of the whole parcel en bloc; indeed, the only testimony in the case is that given by the complainants, who swear that, in their opinion, the property will bring a higher figure, if offered as one parcel. If the contention of defendant Davis, that the property will sell better in three parcels than in one, is well founded, it certainly should have been easy for him to have produced evidence to that effect for the guidance of the court. This he did not do. He even refrained from going upon the stand himself, and placing his opinion upon record, as to the best method of sale. It may be that he relied upon the knowledge of the court as to the situation. It is elementary that the court must base its decree upon testimony given in open court. Knowledge gained by a view of the premises might, with propriety, be used to determine which of two methods of sale should be adopted, where both are supported by proofs; but such knowledge cannot alone be made the basis of a decree. The primary object in a partition sale is, of course, to obtain the highest possible sum for distribution, and there is no doubt of the authority of the court to subdivide a single parcel for the purposes of such sale, if convinced upon a proper showing that such course would produce a higher figure than a sale in a single parcel; but, as we have pointed out, no such showing was made, and there was therefore no basis for the decree entered.

Should complainants have been reimbursed, from the proceeds of the sale, the expense incurred in buying in the tax titles and procuring an abstract ? It is clear that the former owners of the tax titles, their claims to title being adverse, were not proper parties defendant in this proceeding. Summers v. Bromley, 28 Mich. 125; Wilkinson v. Green, 34 Mich. 221; Bell v. Pate, 47 Mich. 468 (11 N. W. 275 ); Hayward v. Kinney, 84 Mich. 591 (48 N. W. 170). Defendant Davis, at the time he filed his plea, evidently considered these outstanding titles such a cloud upon the title held by himself and complainants as to warrant their removal. To have filed a bill for this purpose, even supposing the absolute invalidity of the claims, would probably have involved the expenditure of a larger sum than was paid by complainants in purchasing the titles. Complainants apparently acted in good faith and for the purpose of clearing the title, in order that prospective bidders at the sale might not be deterred from offering the full value of the property. In an equitable proceeding, in the absence of any indication of bad faith, we can see no reason for denying complainants reimbursement for this item as well as for the abstract. Both were made for the benefit of the estate, and both were, in our opinion, necessary to insure a sale at the best price obtainable.

A decree will be entered providing for the sale of the premises in a single parcel, and providing, further, for the payment, from the fund, of the sums expended by complainants, above referred to. In other respects, the decree is affirmed, with costs to appellants.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    PEARLL v. PEARLL ADVERTISING CO. PEARLL v. PEARLL.
    1. Husband and Wipe — Earnings op Wife — Property Rights.
    Upon allegations of a bill of complaint that defendant corporation was formed by complainant and his wife and sons, to carry on a business which the husband claimed to have built up, and that he consented to the creation of the company upon the promise that he should have 100 shares of the stock, and that no stock has been issued to him, no relief can be granted, where the proofs fail to support the charge, under a theory not contemplated by the bill, that the parties are living together and the husband is entitled to control or share in the community property.

      2. Same — Emancipation op Wipe.
    A wife, compelled by circumstances to assume control of her husband’s business, which she conducts for twenty-five years with the aid of her sons, dealing with her husband as with a stranger, and recognized by him as entitled to earn and disburse funds independently, will not be required to turn over the business to him, and to desist from interfering with it.
    3. Same — Wipe’s Separate Estate — Voluntary Conveyance— Consideration.
    Evidence that complainant deeded to his wife land incumbered by a mortgage for its full value, without consideration, that she controlled it for 21 years as the owner, improved it, paid taxes and remortgaged it to rebuild, without complainant making any claim of ownership, does not warrant a decree vesting an interest in the husband.
    Appeal from Bay; Collins, J.
    Submitted June 17, 1910.
    (Docket Nos. 75, 76.)
    Decided July 14, 1910.
    Bill by Anton W. Pearll against the Pearll Advertising Company and others to have complainant declared to be a stockholder, and by the same complainant against Severyna Pearll for the cancellation of a deed. From a decree dismissing the bills, complainant appeals.
    Affirmed.

      James Van Kleeck (George P. Cobb, of counsel), for complainant.

      L. G. Beckwith, for defendants.
   Ostrander, J.

These causes were heard together and are presented in this court upon a single record. In the first, in which the Pearll Advertising Company is a party defendant, complainant claims to be entitled to, and asks to be declared to be the owner of, one-fifth of the capital stock of the said advertising company; that the association be required to meet and elect a board of directors who are stockholders in the association; and that the association be enjoined from doing any other or further business as a corporation until a board of directors is elected who are stockholders and authorized as such to act as directors. It is charged in the bill of complaint that about four years before it was filed the complainant started the business of bill posting and outdoor advertising, which was carried on under the name of the Bay City Bill Posting Company;” that he invested in the business a large sum of money and labor, to wit, $2,000 and upwards; that after the business was started, complainant, Severyna Pearll, and their two sons, Julian and Thadius, worked together in the business and shared the fruits and profits in common until about August 1, 1906, when the said Severyna took complete control of the business and excluded complainant from participating therein except as a common laborer performing manual labor for the said company; that she took possession of the books of account and refused to let complainant see or inspect them or have anything to do with the business except to labor; that after repeated and earnest efforts to adjust matters in relation to said business, and on or about January 28, 1907, he filed his bill of complaint, praying, among other things, that he be relieved touching the matters of the business of said company, and especially that the said Severyna be ordered and directed to deliver to him the books of account and be restrained by injunction from interfering with complainant’s business affairs; that afterwards an amicable agreement was made, by the terms of which complainant was to discontinue his suit, a stock company or corporation was to be organized with $5,000 of capital stock, divided into 500 shares, and all the property of the bill-posting company should be put into the corporation and constitute the capital stock, and complainant should have 100 shares of the stock, the rest being divided between Severyna, Julian, Thadius, and one David L. Galbraith, who was a son-in-law of the parties; that in February, 1907, articles of association were made and filed and recorded pursuant to law, the name of the corporation being “ Pearll Advertising Company that Severyna Pearll subscribed for 430 shares of stock, Julian for 20, and Thadius for 50; that complainant was told that he was a stockholder to the extent of 100 shares and believed it; that a meeting was held at which a board of directors was elected, including complainant and said Galbraith, and the said directors elected complainant president and Galbraith treasurer; that after the organization of this company the business was carried on in the same manner as it was before, but, when he discovered that he was not a stockholder and had no interest in the corporation and applied for 100 shares of the stock, he was informed that he was not a stockholder and had no interest in the corporation.

The bill was verified and was answered by the defendants other than the Pearll Advertising Company, denying especially that complainant ever started the business of bill posting or invested in the business a large sum of money. On the contrary, the defendants say that complainant has never been engaged or interested in the business except at. different times in the capacity of a hired employé. Most of the material allegations of the bill are denied, and it is alleged that after executing the articles of association, and before any transfer of the business aforesaid to said corporation, the stockholders by proper action terminated the corporation and dissolved it. Mere convenience is said to have induced the formation of a corporation, which, however, did no business as such and issued no stock.

In the other suit the bill sets out: That previous to April 16, 1885, complainant was the owner of two certain lots. That on that day, in order to provide for each other in case of death, complainant and his wife, the defendant, made and executed and delivered deeds of the said lots; complainant deeding the land to his wife, and the wife at the same time deeding it to complainant. These deeds were made and delivered on the advice of counsel for the purpose of creating a joint tenancy in complainant and his wife. That the said Severyna fraudulently obtained possession of the deeds and destroyed the deed which she had executed to complainant, but recorded the deed executed by complainant to her. That the premises were were worth $2,000 and upwards. The rental value was $600 a year. Severyna has collected and kept the rent and threatens to continue to do so. He also avers in this bill that he went into the business of bill posting, and invested in it about $2,000, and that his wife, Severyna, after all of the family had worked together in said business, took the business into her own hands, so that complainant has no knowledge of how the business is conducted. The relief prayed for is that the deed made by complainant to Severyna be canceled; that she may be directed to make a conveyance of said land to complainant, or that they may be declared to be joint tenants of said property; that Severyna be ordered and directed to deliver up the books of account relating to the bill-posting business; and that she be restrained by injunction from interfering with complainant’s business affairs, excepting the bill-posting business. She answered the bill denying the material allegations thereof. In each of these causes the court below dismissed the bill, and the complainant has appealed from both decrees.

I have read the record, and find that, so far as the cause first above stated is concerned, complainant has failed to prove any material allegation of the bill excepting only the merely formal allegations. The parties still are living together, and it is the contention of complainant that the case, upon the facts, requires the application of the doctrine that the husband is head of the family and entitled to control, or at least to share in, the community property. It is said, too, that the earnings of the wife, she having worked and earned money for some 25 years, sometimes as much as $900 a year, belong to the husband, in the absence of agreement or understanding, and that she could not acquire any exclusive interest in the property in which this money has been invested.

The answer to these contentions is: First, that the bill is filed upon no such theory; and, second, that it appears that circumstances, in this instance, forced the wife to become the executive and working head of the family, and the complainant has for years recognized her right to earn and disburse money, doing business with her himself as he would with a stranger. She has sought to acquire for the sons a business in which they can earn their living, and has exercised good judgment in seeing to it that her husband did not much interfere in the management thereof.

With regard to the other cause, I find that the complainant was the owner of the property described in the bill of complaint, and that he executed a deed thereof to his wife as is alleged, and that she paid no consideration for the transfer, although it seems to be claimed by counsel for defendants that she paid him $300 for the deed. The property was worth about $3,000 and was mortgaged for $3,000. From 1885, when the deed was made, to 1907, when complainant filed his first bill of complaint, the wife appears to have paid the taxes, insurance, repairs, and interest, collected the most of the rents, borrowed money on her own account to repair and rebuild the property after it had been burned, remortgaged the place for $1,300 to procure money to buy the bill-posting business, again remortgaged it to pay for the cost of rebuilding upon the property without any interference from the complainant or any claim upon his part that he had any interest in the property. The allegation that a deed of the property was executed by defendant to complainant is not proved.

These two causes must be disposed of here as they were disposed of in the court below, and both decrees are affirmed, with costs to appellees.

Hooker, Moore, Me Ah vat, and Brooke, JJ., concurred.


text:
    WRIGHT v. WRIGHT.
    Divorce — Alimony—Separation Agreement — Termination.
    An. agreement between husband and wife for a separation, with a settlement of property matters, is abrogated by their resumption of marital relations, second separation and second resumption thereof, and the contract is no bar to alimony in a suit by the wife for divorce.
    Appeal from Wayne; Donovan, J.
    Submitted June 17,1910.
    (Docket No. 86.)
    Decided July 14, 1910.
    Rehearing denied December 8, 1910.
    Bill by Elizabeth E. Wright against George Wright for a divorce. From a decree for complainant, defendant appeals as to the award of alimony.
    Affirmed.

      Merriam, Yerkes, Simons & Ladd, for complainant.

      John E. Maloney (Frank W. Atkinson, of counsel), . for defendant.
   Ostrander, J.

The parties were married in 1880 and lived together until December, 1897, when they mutually agreed to separate and live apart from each other.. They executed an instrument which recites the agreement, and makes provision for the wife, in consideration that she release her husband from the duty to support her, and bars her homestead and dower rights in certain real estate which is described therein. The instrument is witnessed and duly acknowledged. Later, we assume in October in the year 1907, complainant filed her bill against defendant for a divorce, and for alimony, setting up that after the separation in 1897 their marital relations were resumed at different times, the last time, in the summer of 1907, and charging defendant with repeated acts of extreme cruelty. She asked for permanent alimony. There was an answer and replication, a hearing in open court, and a decree finding the charges of extreme cruelty sustained. The marriage was dissolved, and permanent alimony was awarded. Defendant, appealing, does not ask to have the decree dissolving the marriage reversed, but only that the provision made for the wife at the time of their separation in 1897 be held to be a fair division of the property, and, as it was executed, a bar to the allowance of alimony. It is also claimed that the amount awarded as alimony is, in any event, excessive. It is unnecessary to set out the testimony. We find, as did the court below, that the parties after their first separation resumed marital relations, ended them, and again resumed and ended such relations, upon the promises of defendant, each time broken, to desist from conduct not only reprehensible but criminal. The agreement to separate was therefore abrogated (Knapp v. Knapp, 95 Mich. 474 [55 N. W. 353]), and the conduct of the parties, in other respects, indicates that they regarded it as abrogated. Indeed, it is urged that defendant later on made other considerable provision for complainant. Complainant’s right to permanent alimony was not barred, and we are not satisfied that the court made an unfair division of the property.

The decree is affirmed.

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