text:
    CASPARI v. CUTCHEON.
    1. Wills — Intention op Testator, — Testamentary Trusts.
    Where a will clearly shows that it was the testator’s intention to bequeath the net income of a trust estate, the trust will not be held invalid upon the ground that the amount of the income cannot be definitely ascertained.
    2. Same — Uncertainty.
    A bequest of a fund to trustees “to invest, and from time to time reinvest, in such income-producing investments as they shall deem for the best interests of the trust,” is not void for uncertainty in that it fails to designate the securities in which investments shall be made.
    3. Same — Liability op Trustees.
    When an instrument which creates a trust fails to designate the securities in which the trust funds shall be invested, the trustees take subject to the recognized rules of law as to the investment of trust funds, and will be held personally responsible for failure to exercise good faith and sound discretion.
    4. Same — Province op Court.
    Where there is nothing to show that trustees are likely to abuse their trust by arbitrary or capricious exercise of author - . ity, the court will not, at the request of the beneficiary, adjudge how they shall act in regard to matters expressly confided to their discretion.
    Appeal from Wayne; Haire, J., presiding.
    Submitted April M, 1896.
    Decided July 8, 1896.

      Bill by Josephine Caspari against Sullivan M. Cutcheon and others to determine the validity of a trust provision in the will of Stephen Moore, deceased. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Atkinson & Hcrigh, for complainant.

      Cutcheon, Stellwagen & Fleming, for defendants.
   Moore, J.

In his lifetime, Stephen Moore, who had three children' living, made his will, which, after his death, was probated. The defendants Cutcheon and Stellwagen were appointed executors. The will directs that the executors sell and convey all real estate, and convert it into money. It also contains this provision:

Thirteenth. I give and bequeath to Sullivan M. Cutcheon and Augustus C. Stellwagen, of Detroit, Michigan, and to their successors appointed as hereinafter provided, the sum of one hundred thousand dollars, in trust for the following purposes, namely:
“1. To invest, and from time to time reinvest, the same in such income-producing investments as they shall deem for the best interests of the trust.
“ To pay, out of the income arising from such investments, all taxes, losses, and expenses of the trust, including the sum of five hundred dollars per year, to be received by them in full for their annual compensation for the care and management of said trust.
“3. To pay the residue of said income of said trust, on the first days of January and July of each year, to my daughter, Josephine, from my death, for and during her natural life.
“4. If, at the death of my said daughter, Josephine, she shall leave issue her surviving, then at her death to transfer, assign, and pay over to such issue the said trust ■fund, money, and property. •
“ 5. If my said daughter, Josephine, shall die without issue, and my son George shall survive her, then I give one-half of said trust remaining at the time of her death to my son Lucien, his heirs and assigns forever, and the net income of the remaining one-half of said trust to my said son George, for and during his natural life, from and immediately after the death of my said daughter, Josephine.
“6. If my said daughter, Josephine, shall die without issue, and my son George shall not survive her, but shall leave issue surviving, then I give one-half said trust fund to such issue, and the other half to my son Lucien, his heirs and assigns forever.
“1. If my said daughter, Josephine, shall die without issue, and my son George shall survive her, and at his death shall leave issue him surviving, then I give the one-half of said trust fund of which he has been entitled to receive the net income from the death of my daughter, Josephine, to such issue.
“8.' If my said daughter, Josephine, shall die without issue, and my son George should survive her, but die without issue, then I give at his death the said half of said trust fund then remaining to my. son Lucien, his heirs and assigns forever. ”

A codicil provided for the payment to the daughter, Josephine, of $25,000 January 1, 1900, a like amount January 1, 1910, and that, in case of the reduction of the trust fund by these payments, the compensation of the trustees should be reduced at the same rate. The complainant, who is the daughter, Josephine, filed this bill to determine the validity of the trust. The bill was dismissed by the court below, and the case comes here by appeal.

Several reasons were assigned by complainant against the validity of the trust, but the solicitors for complainant, in their brief, say they do “not regard the trust as void under the statute against perpetuities. It is, so far as time is concerned, within the limit fixed by the statute. It is also within the limit fixed by the common law.” Their contention is “that the trust is void for uncertainty, whether it be judged by the common law or by the statute.” They contend “that the statute requires that the trust shall be for the benefit of some person or persons who shall be clearly designated; that the trust shall be fully declared and clearly defined on the face of the instrument; that the intention should not be left to implication, but that the trust should be so clearly-declared • that it could be carried out under the direction of the court.” It is claimed that because the will authorized the trustees ‘ ‘ to invest, and from time to time reinvest, the same in such income-producing investments as they shall deem for the best interests of the trust,” it puts such an element of uncertainty into the trust as to make it void. It is also urged by complainant’s counsel that the language of the trust is indefinite, and that no one can tell from it how the trust fund will be invested, or what the income from it will be.

We have carefully considered the arguments of the able solicitors, and all the authorities they cite, but cannot agree with them in the conclusions they reach. We think it clearly apparent from the provisions of the will that Mr. Mgore intended, his daughter to have the net income from the fund during her natural life, and this is made very clear and explicit by the will. Provision is also made for the disposition of the fund upon her death. It is true that no one can tell just what the income will be, but that grows out of the uncertainty of all events in the future. Had the will provided just how the fund should be invested, there would have been no certainty about the income. Investments that are good today may be bad tomorrow. It is to be presumed that the trustees will act in good faith, and something must be left to their discretion. The law of the investment of trust funds is very clearly settled, and it is not unreasonable to assume that when Mr. Moore executed the will he had some knowledge of the condition of the law upon that subject. He doubtless understood that, if he did not designate the securities in which the trust fund must be invested by the trustees, the law would require them to exercise sound discretion and good faith in the investment of the funds, and would hold them personally responsible for any failure in that respect, for this is undoubtedly the law. 1 Perry, Trusts, § 452. This doubtless led him to believe that in no other way could he more certainly provide an income for his daughter than in the way he did. His will is well calculated to attain his object. It does not seem to us that there is any want of definiteness as to the property, the terms of the trust, the trustees, or the beneficiary; and that the trust is valid. Hatheway v. Sackett, 32 Mich. 97; Maynard v. Woodard, 36 Mich. 423; Penny v. Croul, 76 Mich. 471.

The court is asked, if it holds the trust to be valid, to determine (1) that the complainant be declared to be the beneficiary, and be allowed to take the fund on securing the remainder-men; or (2) that complainant should have a voice in the selection of trustees as changes occur, and that the trustees give bonds for the management and preservation of the fund; (3) that the court declare the kind of securities in which investments sljall be made. In Proctor v. Heyer, 122 Mass. 525, it is said:

‘ ‘ The judgment of this court cannot be substituted for the discretion of the trustees, reasonably and fairly exercised, in respect to matters which the testator has expressly confided to the wise discretion of the trustees selected by himself, where there is no suggestion from any quarter that they are likely to abuse that trust by an arbitrary or capricious exercise of authority.”

There is nothing in the record indicating the necessity for this court to pass upon these questions now, except as herein indicated.

The decree of the court below is affirmed, with costs.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    McGUIRE v. McCALLUM.
    Log-Lien Proceedings — Apportionment oe'Time Employed.
    Where the owners of adjoining timber lands enter into several agreements with a logging contractor, and the agreements do not indicate that any confusion of the work of the several owners is contemplated, a workman who is employed under the various contracts indiscriminately, no separate account being kept of the labor performed by him upon the logs of each owner, will not be permitted to assert a lien for labor against the entire quantity of logs produced.
    Error to Saginaw; Wilber, J.
    Submitted April 29, 1896.
    Decided July 8, 1896.
    Proceedings under tbe log-lien law by Prank McGuire against David M. McOallum, the Gratwick, Smith & Fryer Lumber Company, Penoyar Bros., and William H. Simpson. From a judgment for defendants on verdict directed by the court, plaintiff brings - error.
    Affirmed.

      M. J. Oonnine, for appellant,

      O. E. MOutcheon (Humphrey & Grant, of counsel), for appellee Lumber Company.

      Henry & Pugh, for appellees Penoyar Bros.
   Montgomery, J.

Plaintiff brought this suit on behalf of himself and others to establish a lien on a quantity of logs cut and put afloat in the county of Qscoda by David McCallum, who was their employer,' and who had three separate contracts with those named as codefendants, viz., William H. Simpson, the Gratwick, Smith & Fryer Lumber Company, and Penoyar Bros.

The circuit judge directed a verdict for the defendants, assigning various grounds for the conclusion reached. But, in the view which we take of the case, it will only be necessary to refer to one, as we think, upon the record, that the conclusion reached upon the ground that the plaintiff had not shown the amount of work which was a lien upon the logs of any particular owner is valid. The evidence tended to show that, after taking the three contracts, McCallum established three camps along the river, known as “Foster’s Camp,” “Cook’s Camp,” and “Davidson’s Camp.” The workmen whose claims are involved in this case were employed in Foster’s camp. The evidence tends to show that there were put in at this camp about 2,000,000 feet of logs belonging to Gratwick, Smith & Fryer Lumber Company, about 800,000 feet belonging to Simpson, and about 700,000 feet belonging to Penoyar Bros. Gratwick, Smith & Fryer logs were marked “Diamond S.,” the Simpson logs were marked “3-33,” and the Penoyar logs were marked “V. C.” The logs cut at each camp were mixed together, and banked at one place on the river. The lands of the different owners were adjoining, some near the camp and some distant. The foreman did not keep a separate account of the work- done by the men on the land of the different owners. He testifies that it would have been impossible to keep such a separate account, but this is obviously a misstatement. While it may have been difficult, it is clear that it was not impossible. He also testifies that when he wanted a man on something else he would take him from one job to another, and from one lot of logs to' another, but that usually, in the cutting of a 40, they would probably cut right along until it was finished; that he had no knowledge of any of the men attempting to keep an account. The workmen themselves were not called as witnesses, and it is not definitely shown whether they kept accounts of their work for each owner or not. However this may be, no attempt was made to show the amount of labor which each claimant did upon the logs of each separate owner. ' If a recovery is permissible at all, it must be on the ground that, the owners having permitted the contractor to put in these logs with labor of which no separate account was kept, they have rendered their property liable as though it were a joint account, or at least that it must bear a proportional share of the expense of the laborers’ wages. There is nothing to indicate that the contracts under which the work was let to McCallum contemplated any confusion of the work of the separate owners, unless it be the bare fact of the location of the timber, and this would not justify any such inference. If the case werp one where the labor to be performed was necessarily to be performed indiscriminately upon intermingled logs, as in case of driving the logs in a stream, there would be room for saying that the charges for labor should be apportioned upon the basis of the number of logs in the stream belonging to each owner. But such was not the nature of the contracts here.

Plaintiff’s counsel relies upon the case of Pack, Woods & Co. v. Iosco Circuit Judge, 70 Mich. 135. In that case the statement of lien alone was considered, and it was held not necessary for the employes to discriminate in their statement of claim between logs which- had been indiscriminately intermingled. But it was said:

“It is evident from the reading of the statute that this question is to be determined on the trial, where the rights of the laborer, the contractor, and the log owner may each be fully protected.”

And in the case of Appleman v. Myre, 74 Mich. 359, it was said that—

“The plaintiff, on the trial, has the burden of showing how much, or what proportion, of his labor has been expended upon the logs or lumber of each owner; and. this being ascertained, he may have his lien assessed upon such product for the value of labor expended thereon.”

And it was further said:

‘ ‘ The property of one man cannot be taken to pay the debt of another, unless some fact appears showing some privity of contract between them.”

In the present case the owners of these logs have not contracted for a service to be indiscriminately performed upon their logs and others. It was entirely feasible for the contractor to keep the operations distinct, and it cannot be assumed that the owners have consented to subject their several logs to liens for labor performed upon logs of other owners. The case is one of hardship to the plaintiff, but we cannot so construe the lien law as to permit the taking of the property of one log owner for labor bestowed upon that of another.

The judgment will be affirmed, with costs.

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


author: Moore, J.

text:
    GARDNER v. BOARD OF SUPERVISORS OF NEWAYGO COUNTY.
    1. Officers — County Clerk — Extra Compensation — Tax Law.
    Section 110 of the tax law of 1893 (Act No. 206) provides that “county officers shall be paid for services under this act by salary or otherwise, as the board of supervisors shall determine.” Held, that a county clerk whose salary is fixed at a specified amount is not entitled to additional compensation for services contemplated by the act.
    2. Same — State Statistician.
    The law nowhere prescribes it to. be the duty of a county clerk to furnish to the state statistician copies of the records in his office, and the county is not bound to compensate the clerk for such services.
    3. Samp — Disbursements—Itemized Account.
    While the disbursements of a county clerk for postage and express are legal charges against the county, a claim for such disbursements may well be rejected by the board of supervisors if not properly itemized.

      Certiorari to Newaygo; Palmer, J.
    Submitted April 29, 1896.
    Decided July 8, 1896.

      Mandamus by Charles W. Gardner to compel the board of supervisors of Newaygo county to audit and allow a claim for extra services as county clerk. From an order denying the writ, relator brings certiorari.

    Affirmed.

      A. C. Day, for relator.

      W.- D. Leonardson, Prosecuting Attorney (George Luton, of counsel), for respondent. '
   Moore, J.

This is a certiorari proceeding to review the action of the circuit judge in refusing a mandamus to compel the board of supervisors to allow and pay certain accounts. These accounts were for services rendered by the relator as county clerk, which, with one or two exceptions, were services it was his duty to perform. The claims may be summarized as follows: First, claims for services rendered in tax proceedings under the provisions of subdivision 7, § 9009, 2 How. Stat., and sections 90 and 110, Act No. 206, Pub. Acts 1893, amounting to $177; a claim of $22.60 for expenses in going to and from Big Bapids in connection with the tax proceedings, and for work done in relation thereto; an item of $30 for comparing tax returns, and for services in canvassing spring and fall election returns; an item of $25 for incidental expenses of clerk for county, being postage and express charges paid, etc. (this sum of $25 was not itemized); and an item of $40 for making copies of records for use of the state statistician.

The relator claims that he rendered these services under an implied understanding that he was to be paid for them in addition to his salary. The county clerk’s salary was fixed by the board, of supervisors, for two years, at its October session. The respondent admits that the services were rendered, but claims that they were duties imposed upon him by law (except as hereafter stated), and that his -salary was complete compensation therefor. The respondent claims that it was no part of the duty of the relator to make expense in going to Big Rapids to get orders for the tax sales, nor was it his duty to make copies of the records for the use of the state statistician. The respondent returns that it considered the claim of the relator, and heard him in relation thereto; that the prosecuting attorney was present, and the liability of the county for said bills was referred to him; and that he advised adversely to the claim of the relator; and the board refused to audit the bills. On the hearing before the circuit judge, he refused to issue the writ of mandamus.

The question to be considered is, are these accounts legal charges, and presented in such a way as to make it incumbent upon the board of supervisors to allow them? The disbursements made by the county clerk were proper charges, if the account had been properly itemized, but a gross sum of $25 for postage and express charges might well be rejected on account of indefiniteness. As to the work done at the request of the state statistician, there is nothing in the act providing for the office of state statistician (Act No. 236, Pub. Acts 1895) that made it the duty of the county clerk to do this work, or the duty of the board of supervisors to pay for it. As to the work done under the provisions of Act No. 206, Pub. Acts 1893, section 123 provides, “Each county treasurer and county clerk shall receive such reasonable compensation for the extra services required by this section as may be allowed by the board of supervisors, to be paid out of the county treasury.” There is nothing in the record to show that any work was done under the provisions of this section. Section 110 provides, “County officers shall be paid for services under this act by salary or otherwise, as the board of supervisors shall determine.” We think the case is controlled by Stetson v. Supervisors of Calhoun Co., 36 Mich. 10; Sherman v. Supervisors of Sanilac Co., 84 Mich. 108; Backus v. Wayne County Treasurer, 99 Mich. 218.

The mandamus as prayed must be -denied, with costs.

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


author: Hooker, J.

text:
    PEOPLE v. KINNEY.
    1. Statutes — Repeal by Implication — False Pretenses.
    Section 9353, 2 How. Stat., which provides for the punishment of any person fraudulently obtaining the signature of another - to any paper writing with intent to cheat and defraud, was not repealed by Act No. 234, Pub. Acts 1895, amendatory of section 9161, 2 How. Stat., in-escribing the punishment for similar acts committed with like intent. -
    2. Criminal Law — False Pretenses — Sufficiency of Information.
    An information for fraudulently obtaining a signature to a promissory note is not defective in failing to allege that the note was delivered to the respondent.
    3. Same — Conclusions from Facts Alleged.
    An information for such offense, which sets up facts necessarily leading to the single and inevitable conclusion that the note was signed in consideration of the alleged false representations, is not invalid because it does not expressly aver such to have been the fact.
    Exceptions before judgment from Kent; Adsit, J.
    Submitted April 30, 1896.
    Decided July 8, 1896.
    Arthur B. Kinney was convicted of fraudulently obtaining a signature to a promissory note.
    Affirmed.

      Nathan P. Allen (Edwin St. George Rogers and Birney Hoyt, of counsel), for appellant.

      Fred A. Maynard, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted upon a charge of fraudulently obtaining the signature of the complainant to a promissory note, contrary to the provisions of section 9353, 2 How. Stat., which is as follows:

u The People of the State of Michigan enact, That any person or persons who shall, by representing that he is-the agent of any person, company, firm, or corporation, or by any other means, fraudulently obtain the signature of any person or persons, with the intent to cheat and defraud such person or persons, to any promissory note, bill of exchange, duebill, order, contract, or any paper writing whatever, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be imprisoned in the state prison not exceeding ten years, or in the county jail not more than one year, or by a fine not exceeding one thousand dollars, or both, in the discretion of the court.”

This section became a law August 30, 1879, having been approved May 27th. Four days earlier an amendment was made to section 39 of chapter 154 of the Revised Statutes of 1846, as amended by Act No. 164 of the Laws of 1867, which last amendment also took effect August 30, 1879. As amended in 1867, this statute was as follows:

“Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, cause any person to grant, convey, assign, demise, lease, or mortgage any land or interest in land, or obtain the signature of any person to any written instrument the making whereof would be punishable as forgery, or obtain from any person any money, personal property, or valuable thing, shall be punished by imprisonment in the state -prison not more than ten years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year,”

The amendment of 1879 consisted of the addition of the following, before the penalty, to the act as passed in 1867, viz.:

“ Or, by means of any false weights or measures, obtain a larger amount or quantity of property than was bargained for, or, by means of any false weights or measures, sell or dispose of a less amount or quantity of property than was bargained for, shall be punished by imprisonment,” etc.

■These two sections, 9161 and 9353, were passed at the same session, and have stood upon the statute book since, without change until 1895, when the following change was made in the penalty of section 9161, viz.:

“If such land or interest in land, money, personal property, valuable thing, larger amount obtained, or less amount disposed of, shall be of the value of twenty-five dollars or less, shall be punished by a fine not exceeding one hundred dollars or imprisonment in the county jail not exceeding three months; and if such land or interest in land, money, personal property, valuable thing, larger amount obtained, or less amount disposed of, shall be of the value of more than twenty-five dollars, such person shall be punished by imprisonment in the state prison not more than ten years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not more than one year.” Act No. 234; Pub. Acts 1895.

This act was approved May 31, 1895.

The offense of which the, defendant stands convicted is alleged to have been committed in January, 1895, and therefore was previous to the amendment. Section 9213, 2 How. Stat., provides that the false making of a promissory note shall be forgery. It is urged upon behalf of the respondent that sections 9161 and 9353 cover the same ground, and that the amendment of 1895 repealed both sections, and, as it contained no saving clause,'the charge against the defendant cannot be prosecuted.

The amended statute (section 9161) was passed four days earlier than section 9353. Section 9353 is broader and more comprehensive than section 9161 as to writings, in that, while the latter covers only such writings as may be made the subject of the offense of forgery, and applies only to cases of procurement by false token, writing, or other false pretense, the former covers all paper writings, and extends to any and all kinds of fraudulent procurement. On the other hand, section 9353 shows no evidence of a design to cover the fraudulent procurement of other kinds of property. It is evident that the legislature did not intend to repeal section 9161 as to the other classes of property mentioned, and, to sustain the defendant’s contention, we must hold that the enactment of section 9353 did not repeal that portion of section 9161 applying to written instruments, because, if it had that effect, the subsequent amendment — i. e., that of 1895 — would not affect this case, inasmuch as it does not purport to amend anything but section 9161, and manifestly could not regenerate that part of the section that was dead through a previous repeal. If, however, section 9353 did not in any way affect section 9161, the question arises whether the amendment of 1895, which in terms deals only with section 9161, and only in relation to the penalty, should be held to apply to section 9353. To our minds, a sufficient reason why it should not he held to apply to section 9353 is that the amendment seems not to have been intended to apply to cases involving the procurement of signatures to writings, which, while mentioned in the body of the statute, are conspicuously absent in that portion of the act prescrib- , ing the penalty.

Counsel contend that the information filed in the case was insufficient, for the reason that it does not allege that the defendant obtained the note in question; in other words, it does not state that it was delivered to him, but only that he obtained the complainant’s signature thereto. It is said that obtaining the property is essential to the offense commonly known- as “false pretense,” and we are cited to the case of State v. McGinnis, 71 Iowa, 685, in support of the doctrine. The Iowa statute (Code, § 4073) provided that-—

“ If any person, * * * by false pretense, * * * with intent to defraud, obtain from another money, goods, or other property, or so obtain the signature of any person to any written instrument the false making of which would be punishable as forgery, he shall be punished,” etc.

The prosecuting officer contended there, as here, that the offense was complete when the signature was obtained; but the court said that—

“It will be observed that the statute provides, ‘or so obtain the signature of any person.’ This refers to what precedes such sentence, and that is in relation to obtaining property. If delivery or possession in one case is essential, it would seem to follow that it must be in the other. ‘To obtain’ means ‘to get hold of, to get possession of, to acquire.’ Now, the statute provides that the signature must be ‘ so obtained ’ — that is, it must be acquired or come into the possession of some person— by means of the false pretense, to the same extent as is necessary in order to constitute the offense when money or property is obtained.”

If, as stated in the case last cited, “to obtain” means “to get hold of, to get possession of, to acquire,” we see no necessity for an allegation of delivery of the note after-.the information has already stated that the offender has obtained {%. e., got possession of or acquired) the signature to the note. The lawmakers evidently supposed the language used sufficient to imply possession acquired, and we think it sufficient to so allege it in the information.

In this connection we may discuss a further point upon the information, viz., whether it sufficiently connects the alleged fraudulent representations with the signature of the note. At this point it becomes necessary to detail some of the facts. The defendant is alleged to have called upon the complainant, claiming to be the physician and examiner of the Indianapolis Medical & Surgical Institute, ■— a concern which prescribed and furnished medicine for invalids at their homes, — and made a pretended examination of complainant, and professed to know that he had consumption, kidney and liver disease, and that he could live but a few months without medical help, and that, if complainant would sign the note in question, he would cause said institute to send medicines that would cure him; that complainant believed this, and was induced by these representations to sign the note, payable to said institute. The alleged infirmity is that the information omits to state that this note was signed in consideration of the promise of such treatment and medicines to be furnished. This information is much fuller in its allegations than the cases cited in support of the point. In Jones v. State, 50 Ind. 474, the indictment alleged pretenses to the effect that the respondent was agent of a firm with power to contract, and exhibited a card, and that by means thereof he obtained from the complainant (who relied upon the representations) a note, etc. The same may be said substantially of Cooke v. State, 83 Ind. 402. Enders v. People, 20 Mich. 233, is open to a similar criticism. That case, however, mentions the subject of the false pretenses as “land that he was about to sell to the complainant.” In the case before us, however, we find that a contract was tendered by the defendant, involving the note; that by means of this the complainant was induced to yield, and comply with the offer, whereby the defendant obtained the signature, and, as already said, the note. Here is a statement of fact that, if proved, would establish the contract in a court of justice, and “where an unequivocal statement leads immediately and of necessity to a single and inevitable conclusion, the omission to draw that conclusion expressly will not vitiate the pleading.” Evans v. People, 12 Mich. 27.

The points discussed involve the more important legal questions presented by the case. We are, however, asked to pass upon innumerable assignments of error, and, in justice to the defendant, have felt constrained to examine them. Such examination reveals nothing of interest to the profession, or of which the defendant can legally complain. Were we to discuss separately the 120 assignments of error, we should be obliged to reiterate many things that we have said in other cases, and express conclusions so patent that we are surprised that it should be deemed advisable to raise the questions.

The conviction is affirmed.

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


text:
    PEOPLE v. SILBERWOOD.
    1. Riparian Rights — Great Lakes.
    The fee of the soil lying beneath the waters of the Great Lakes is in the State, and the right of the riparian owner is limited to the enjoyment of such easements as were at common law incident to the ownership of land bordering upon navigable streams.

    2. Same — Constitutional Law.
    Therefore, Act No. 112, Pub. Acts 1895, setting aside certain submerged lands in Lake Erie for public shooting grounds, and making it unlawful to destroy the rushes and other submarine vegetation on such lands, is not unconstitutional in that it deprives the riparian owner of property rights without due notice and compensation.
    Exceptions before judgment from Monroe; Kinne, J.
    Submitted May 1, 1896.
    Decided July 8, 1896.
    Obed Silberwood was convicted of destroying rushes upon public shooting grounds.
    Affirmed.

      George M. Landon, for appellant.

      Fred A. Maynard, Attorney General, and Willis Baldwin, pro Prosecuting Attorney, for the people.

       The ownership of the bed of lakes and ponds is the subject of a note in which the authorities on the question are collected in Gouverneur v. National Ice Co., (N. Y.) 18 L. R. A. 695.

   Moore, J.

This is an action to test the validity of Act No. 112, Pub. Acts 1895, -which was intended to set aside certain submerged lands in Lake Erie and Detroit river, lying east of and adjacent to the surveyed lands in Monroe and Wayne counties, for a distance extending one mile into Lake Erie, for public shooting grounds, to make it unlawful to cut and destroy the rushes and other submarine vegetation on such submerged lands, and to provide a penalty therefor, which act provided that such reservation or dedication should not interfere with or detract from any right or privilege of any person or the public to fishing, and that such waters should be free for purposes of navigation, provided, also, that said lands were owned by the State. Respondent was arrested in September, 1895,_ for cutting rushes on submerged lands adjacent to the- property of the Monroe Marsh Company. He admitted these rushes were cut, not for the purposes of navigation, or of fishing, or in the enjoyment of fishing privileges. Respondent was working by direction of one Sterling, trustee of the marsh company.

The case of the people is based upon the following contentions: That the State is the owner of the fee of the land beneath the waters of the Great Lakes; that the vested right of the riparian owner on the Great Lakes is that of ingress and egress, by navigation, to and from his premises, with the right of wharfage, etc.; that a dedication of a portion of the Great Lakes as a public hunting ground (subject, always, to the rights of navigation) is a valid dedication. The respondent contends that Mr. Sterling, as trustee of the marsh company, has valuable rights of property in the water, and the lands thereunder, in front of his lands; that, as riparian owner, he is entitled to any and every use he can make of the land under the water, and next to his surveyed lands, not inconsistent with the public right of navigation; that the right of fishing is a right of property, and not a privilege, and that this right of property cannot be summarily taken from him; that he had the right to cut the rushes to protect his shore or his fishing interests, or to prevent the flight of wild ducks being diverted from his marsh lands, or for any reason satisfactory to himself in the lawful enjoyment of his property; that the State owned none of these surveyed lands, and that the marsh company is the owner of the portion of the land under the water to the center of Lake Erie; that the act in question, arbitrarily, without notice or compensation, seeks to deprive him of the enjoyment of his property rights, and is therefore unconstitutional and void. The case comes here on exceptions before judgment.

The respondent insists that the owners of land lying adjacent to Lake Erie, in the county- of Monroe, as such riparian proprietors, own the land to the center of that Great Lake, subject to the rights .of navigation. If he is right in this contention, he was improperly convicted; otherwise, his conviction should stand. In support of his view of the law he cites a great- many Michigan cases, and especially Richardson v. Prentiss, 48 Mich. 88; Harrington v. City of Port Huron, 86 Mich. 46; Blodgett & Davis Lumber Co. v. Peters, 87 Mich. 498 (24 Am. St. Rep. 175). At the- common law, all tide waters were navigable, and nontidal waters were nonnavigable. The right to fish in navigable waters was public, but in nonnavigable waters it,was private; the rigid depending, not upon the ownership of the shore, but upon the ownership of the soil under the water. Lincoln v. Davis, 53 Mich. 375 (51 Am. Rep. 116). The English common law made the ebb and flow of the tide the legal test' of its navigability, for it was in fact the practical test. The conditions in this country, however, are very different. We have hundreds of miles of great rivers, and vast inland seas, wholly uninfluenced by the tides, upon which float vast fleets of vessels; so that the common-law doctrine in relation to tide waters is not accepted in this country, because not applicable to our circumstances. One of the earliest decisions in this State in which the principles involved in this case are discussed is La Plaisance Bay Harbor Co. v. Council of City of Monroe, Walk. Ch. 155. In that case the court held:

“The bed of the stream is public property, and belongs to the State. This is the case with all meandered streams, no part of them being included in the original survey; and the common-law doctrine of usque ad filum aqtice, is not applicable to them. The public owns the bed of this class of rivers, and is not limited in its right to an easement or right of way only. So, with regard to our Great Lakes, or such parts of them as lie within the limits of the State; the proprietor of the adjacent shore has no propei’ty whatever in the land covered by the water of the lake.”

It is claimed by counsel for respondent that this decision has been overruled by later decisions of this court. It is conceded that, so far as the decision relates to the rights of shore owners on rivers and inland lakes, it is not now the law in Michigan (Lorman v. Benson, 8 Mich. 18 [77 Am. Dec. 435]; Clute v. Fisher, 65 Mich. 48; Butler v. Railroad Co., 85 Mich. 246 [24 Am. St. Rep. 84 ]); but it is insisted that it is still the law so far as the Great Lakes are concerned. An examination of all the cases decided by this court which have been called to our attention fails to disclose that the question of the title to the bed of the Great Lakes was directly at issue in any of them. There is language used in some of the cases that would tend to support the claim of the respondent that the shore owner upon the Great Lakes has the same right to the land (subject to the right of fishing and navigation) which is possessed by the shore owner on rivers. Lincoln v. Davis, and Blodgett & Davis Lumber Co. v. Peters, supra. On the other hand, there are expressions used in other cases tending to show that, so far as the Great Lakes are concerned, the law is as stated in the La Plaisance Case. Sterling v. Jackson, 69 Mich. 488 (13 Am. St. Rep. 405).

Other States having like interests to our own State in the waters of these great inland seas have had the precise question involved here before them, and have passed upon it. In Diedrich v. Railway Co., 42 Wis. 248 (24 Am. Rep. 399), it was held that the vested right of the riparian owner on the Great Lakes is that of navigation to and from his premises, with the right of wharfage. The decisions in New JYork (Champlain, etc., R. Co. v. Valentine, 19 Barb. 484), in Pennsylvania (Fulmer v. Williams, 122 Pa. St. 191), and in Ohio (Sloan v. Biemiller, 34 Ohio St. 492), all hold that the fee of the riparian owner ceases at the low-water mark.

In the case of Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, Judge Field, in delivering a very learned and exhaustive opinion, stated the law to be—

“It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters within the limits of the several States belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States. * * * The same doctrine is in this country held to be applicable to lands covered by fresh water in the Great Lakes, over which is conducted an extended commerce with different States and foreign nations. These lakes possess all the general characteristics of open seas, except in the freshness of their waters, and in the absence of the ebb. and flow of the tide. In other respects they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes. * * * The Great Lakes are not in any appreciable respect affected by the tide, and yet on their waters a large commerce is carried on, exceeding in many instances the entire commerce of the States on the borders of the sea. When the reason of the limitation of admiralty jurisdiction in England was found inapplicable to the condition of navigable waters in this country, the limitation and all its incidents were discarded. So, also, by the common law, the doctrine of the dominion over and ownership by the crown of lands within the realm under tide waters is not founded upon the existence of the tide over the lands, but upon the fact that the waters are navigable, ‘tide waters’ and ‘navigable waters’ being used as synonymous terms in England. The public being interested in the use of such waters, the possession by private individuals of lands under them could not be permitted except by license of the crown, which could alone exercise such dominion over these waters as would insure freedom in their use so far as consistent with the public interest. The doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment, — a reason as applicable to navigable fresh waters as to waters moved by the tide. We hold, therefore, that the same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other, and subject to the same trusts and limitations.”

It seems to me the reasoning of this case is without flaw, and that the law enunciated therein ought to stand as the law of this State. It commends itself to one’s reason and judgment, and avoids many difficulties incident to a different construction of the law. It is in harmony with the doctrine laid down in the early case of La Plaisance Bay Harbor Co. v. Council of City of Monroe, which I do not think has ever been overruled in this State so far as it affects the rights of shore owners on the borders of the Great Lakes. This doctrine, too, is in harmony with the decisions in all of the States bordering’ on these great seas. It logically follows that, if this view is to be regarded as the law, the legislature possessed authority to pass Act No.’ 112 of the Public Acts of 1895.

The conviction is affirmed.

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


author: Long, C. J.

text:
    DUNLAP v. BYERS

    1. Appear anoe — W aiver — J urisdiotion.
    A defendant who appears, and files his answer to a petition, thereby submits himself to the jurisdiction of the court.
    2. Foreign Courts — Accounting—Partnership Lands.
    Where a court of one State has acquired jurisdiction of a proceeding for the dissolution of a partnership and for a settlement of its affairs, it has authority to determine all of the equities of the case, and may, therefore, adjudicate the rights of the parties as to real estate located in another State.

    3. Same — Effect of Decree.
    While the decree itself, in such case, will not directly effect the transfer of title, it will bind the consciences of the parties, and can be enforced in the courts of the State where the property is located.
    4. Partnership — Dissolution—Pleading,
    A petition for the dissolution of a partnership, which clearly sets up the fact that certain lands in another State were purchased with partnership funds and for partnership purposes, is sufficient to confer jurisdiction upon the court to enter a decree as -to such lands, notwithstanding they are not specifi-, cally described.

      ■6. Foreign Judgment — Conclusiveness—Fraud.
    A judgment of a court of competent jurisdiction in one State is conclusive upon the parties to the action, and their privies, in the courts of another State, and cannot be attacked, even upon the ground of fraud, except by a direct proceeding in the court in which it was rendered.
    •6. Judgment — Description of Lands — Definiteness.
    A description of lands in a decree is sufficiently definite if they can be located from the data given.
    7. Partnership — Foreign Decree — Jurisdiction.
    A-finding of a court of another State, in a proceeding for an accounting between partners, that certain lands in this State were partnership lands, which had been sold with the consent» of the iiarties, and the proceeds credited to the partnership, is sufficient to authorize a decree as to such lands in an action to enforce in this State the decree of the foreign court.
    Appeal from Huron; Beach, J.
    Submitted May 5, 1896.
    Decided July 8, 1896.
    Bill by Jeptha D. Dunlap and others to enjoin William J. Byers and others from prosecuting certain suits in ejectment. From a decree for complainants, defendants appeal.
    Affirmed.

      Hanchett & Handlett, for complainants.

      FIbridge F. Bacon, for defendants.

       Rehearing denied December 9, 1896.

       Rights in partnership real estate on dissolution, and the rights of the partners in general in respect to such property, are considered in a note to Yorks v. Tozer, (Minn.) 28 L. R. A. 86.

   Long, C. J.

In 1873 James Dunlap, through whom 'the complainants claim, and William J. Byers, through whom defendants claim, were engaged in the business of buying and selling lumber in Cincinnati as partners, -under the firm name of James Dunlap & Co. In addition to the property they held as partners, they acquired title to an undivided two-thirds of certain lands in Huron county, this State; some of the lands being held in the name of Dunlap alone, and some of them being held in the names of Dunlap and Byers. Afterwards complainant Lucius P. Mason, who owned ■an undivided one-third oj the lands, conveyed such interest to James Dunlap by two deeds, but as security for advances made by Dunlap & Co. to said Mason, and for moneys owing by him to said firm. It appeared then that the title stood as follows: An undivided two-thirds in James Dunlap and William J. Byers, or, as complainants claim, James Dunlap & Co.; an undivided one-third iñ James Dunlap, in trust, as security from said Mason; and the legal title in an undivided one-sixth of the lands described in Schedules 1 and % of the bill in the name of William J. Byers. While the lands were in this condition, certain parcels were sold, and contracts and deeds made therefor, by James Dunlap, in his own name; and complainants claim that the lands were sold for the firm, with the knowledge and consent of William J. Byers, and the proceeds of such sales credited on the books of the firm.

On December 19, 1885, James Dunlap filed a petition in the superior court of Cincinnati, Ohio, for dissolution ■of the firm of James Dunlap & Có., praying for an accounting' and settlement of the affairs of the partnership, and a settlement of the accounts of the individual partners as between themselves. That petition alleged that James Dunlap and William J. Byers had been engaged as partners, under the firm name of James Dunlap & Co., in buying and selling lumber, their place ■of business being in Cincinnati, and that in connection with the business of the firm they had acquired a large quantity of lands in the State of Michigan. The petition further alleged that the assets and property of the firm consisted of lumber on hand, and, among other property, the lands in the State of Michigan, and which lands were purchased with the partnership funds for partnership purposes. The plaintiff in the petition further alleged that’ the amounts to his credit for advances made to the firm, and undrawn profits, were more than equal to the excess of assets over the liabilities of the firm, and claimed that the defendant was indebted to the firm. A receiver was also prayed for. The defendant William J. Byers filed an answer February 4, 1886, sworn to by him personally. He denied that the credits of the plaintiff in the firm were more than equal to the excess of assets over and above the liabilities, and denied that the Michigan lands were assets of the partnership of James Dunlap & Co.

On December 21, 1885, an order was made by the Cincinnati court, appointing Andrew Jackson receiver of the property of the firm. As appears Jby that order, it was made with the consent and in the presence of the defendant. December 20, 1886, judgment was rendered by that court, in which/it was specifically found that, as a firm, James Dunlap & Co. had purchased for the business of the firm an undivided one-third of certain lands in PPuron county, Mich., and that afterwards other undivided interests in similar lands in Huron county, Mich., were purchased bjr said firm with the funds of the partnership, and for the purposes of its business, and that the conveyances, while in the names of Dunlap and Byers, were taken in trust for the firm. It was also found by that judgment that William J. Byers was indebted to the :fii’HlM3..''the sum of $5,815.23, that the firm was indebted to James Dunlap in the sum of $36,683.18, and that the interest of the firm in the lands in Huron county, Mich., was an' undivided two-.thirds held absolutely, and an undivided one-third held ;as security for whatever balance might be due from /Lucius P. Mason. The judgment further provided that, for the purpose of paying the debts of the firm, an undivided j two-thirds of said lands were partnership assets. The dissolution of the partnership was decreed, and the receiver was ordered to sell the interest of Dunlap & Co. in these lands, as well as all the remaining assets of the firm. The sale was made by the receiver on the 6th day of January, 1887, and the lands were bid in by James Dunlap for the sum of $6,500. The sale was duly confirmed by the court, and it was ordered that the receiver set over and convey, by bill of sale and instruments of conveyance, the purchase made by the purchaser at said sale; and William J. Byers was ordered to quitclaim to James Dunlap, by his deed, the legal title to an undivided one-sixth of the lands in Michigan. It appears by the receiver’s report that a part of the lands had been sold by Dunlap, or had been contracted to be sold, prior to the appointment of the receiver; and _the decree of the Cincinnati court also ordered James Dunlap and William J. Byers, severally, to quitclaim to such purchasers as soon as the- contracts were completed.

William J. Byers died February 31, 1890, without having obeyed the order of the court to quitclaim to James Dunlap the undivided one-sixth of the lands in Huron county, Mich. Since the death of William J. Byers, his heirs, the defendants in the present suit, have 'Commenced suits in ejectment against certain purchasers of certain of these lands, said heirs claiming to be the owners of an undivided one-sixth thereof. The complainants also claim that the heirs "of William J. Byers, in 1893, executed to Elbridge F. Bacon a mortgage covering a large number of the lands described in said bill, to 'secure him for his sew' as attorney for such heirs, but that .said Bacon was fully informed of the title to the lands, and was therefore not a bona fide purchaser. The bill was filed in -this cause to restrain the defendants ..from prosecuting these suits in ejectment, or commencing any further suits for the purpose of asserting claiir to the title to any part of said lands, and prays thai the defendants may be decreed to have no title or interest in or to any part of the premises described in the bill, and that they be decreed to release and convey to the complainants the undivided one-sixth of such lands, and that the mortgage to said Bacon be decreed to be void.v A decree was entered in the court below in accordance' with the prayer of the bill.

The contention of the defendants is that the decree of the superior court of Cincinnati, directing the lands to be sold, and the sale of such lands by the receiver in pursuance of the decree, were null and void, for want of power in the court to make such decree, and also that such sale did not of itself divest, or in any manner affect, the title of William J. Byers to the lands in question. It is also contended that these lands, being situate in the State of Michigan, could be sold by the court, or the receiver appointed by the court, only, if at all, in accordance with the laws of this State, and not under the laws of Ohio relating to the sale of lands. While it is not strenuously contended that the court at Cincinnati was not a court of general jurisdiction, yet it is claimed that it never acquired jurisdiction over the person or the subject-matter; while the complainants Contend that the superior court of Cincinnati was a court of general jurisdiction, with a limitation upon its territorial jurisdiction within the limits of the city of Cincinnati, and that the record shows that that court had jurisdiction of the parties to that action, as well as of the subject-matter of the suit.

William J. Byers appeared in that suit, and filed an answer to the petition; and the order appointing the receiver expressly states that the order was made with the consent of the defendant, and that the defendant, in open court, expressed his satisfaction and consent to the bond furnished by the receiver. It is well settled that, by appearing and pleading, the defendant submits himself to the jurisdiction of the court. Hayes v. Shattuck, 21 Cal. 51; Insurance Co. of North America v. Swineford, 28 Wis. 257; Evans v. Iles, 7 Ohio St. 233; Abernathy v. Latimore, 19 Ohio, 286; Gunn Hardware Co. v. Denison, 83 Mich. 40; Austin v. Burroughs, 62 Mich. 181. It is also well settled that, when an attorney appears in the case, the presumption is that he has proper authority to appear. Corbitt v. Timmerman, 95 Mich. 581 (35 Am. St. Rep. 586). The court, therefore, had jurisdiction of the person of William J. Byers in the proceeding for the dissolution of the partnership, and the appointment of a receiver, and the sale of the lands.

The court being one of general jurisdiction, and having acquired jurisdiction over the parties, the-only remaining question upon this branch of the case is whether it had jurisdiction of the subject-matter of the suit. While the distinction between law and equity is, to a great extent, abolished by the Ohio Code, the action brought in that court was, in effect, a bill for an accounting and dissolution of the partnership, including a prayer for a general settlement of the affairs of the firm, and the appointment of a receiver to take charge of the property for that purpose ; and by the statute of that State the court is given jurisdiction to try and determine such causes of action, and, in effect, is regarded as having such jurisdiction as an ordinary chancery court of general jurisdiction would have. The jurisdiction of courts of equity extends to all matters necessary to wind up the affairs of a partnership, including the sale of real estate; and the jurisdiction is not local, even though a part of the assets consists of real property, and although that property may be situate in another county or State. Godfrey v. White, 43 Mich. 171; Graydon v. Church, 7 Mich. 36; Lindsay v. Race, 103 Mich. 28; Lyman v. Lyman, 2 Paine, 11; Griggs v. Clark, 23 Cal. 427; Jones v. Fletcher, 42 Ark. 422; Wright v. Ward, 65 Cal. 525; 2 Story, Eq. Jur. §§ 743, 744, 1295-1297; 2 Bates, Partn. § 907.

In Godfrey v. White, supra, the bill was filed for a partnership accounting. The partnership owned plaster lands in Kent county, and the suit was brought'in the superior court of Grand Rapids, which had no territorial jurisdiction over the plaster lands. This court held that the lands were to be treated as assets of the firm, and that, for the proper settlement of the affairs of the partnership, the lands should be sold, and the proceeds divided. It was said by the court in that case:

“Proceedings between partners for an accounting are always for the principal purpose of reaching a statement "' '"oney balances, and a division of assets as personalty. It may, no doubt, in some cases, turn out that there is enough pure personalty to settle all balances, without reference to such lands as are owned by the firm, so that, if parties choose, they may keep the lands separate; but this cannot usually be known until the accounts are taken, and unless the lands are kept out of the accounting altogether, originally, by general consent, there must be some difficulty in treating them as distinct at any time. It would be contrary to all principle to hold a court capable of maintaining jurisdiction up to the last stage of a cause, and then incapable of completing its work over any part of the property in controversy. Partnership settlements cannot very well be made piecemeal. The courts that deals with them must determine all of the equities. The proceeding is, in its essence, a personal, and not a real, controversy. * * * The decree, when it reaches lands, does it incidentally, and its chief purpose is different.”

In effect, the rule is that, for the nurnoses of settlement. partnership-lands cannot be distinguished from other" assets. It therefore seems to us to appear concluSÍvé]y"""that the superior court of Cincinnati acquired jurisdiction, not only over the parties, but over the subject-matter, and had the power to adjudicate the rights of the parties in all the property belonging to the partnership, although a portion of the same was real estate in the Sthte of Michigan. This appears to be the general rule, and is supported by a large number of authorities cited in the brief of counsel for the complainants. Burnley v. Stevenson, 24 Ohio. St. 474 (15 Am. Rep. 621), is the leading Ohio case on thesubject; and the court there held that, although the deed made by the commissioner under the decree of the Kentucky court did not have tlie effect to transfer the legal title to the lands, nevertheless, the decree bound the consciences of those against whom it was rendered, and that such decree was record evidence of the fact that it became the defendants’ duty to convey the legal title to the plaintiffs. A similar rule was laid down in Wood v. Warner, 15 N. J. Eq. 81, and the court said:

“The strict primary decree of a court of equity is in personam, and not m rem, and the authority of this court to deal with contracts in relation to land not within the jurisdiction of the court is fully established.”

In Mitchell v. Bunch, 2 Paige, 606 (22 Am. Dec. 669), the court said:

“Although the property of a defendant is beyond the reach of the court, so that it can neither be sequestered nor taken in execution, the court does not lose) its jurisdiction in relation to that property, provided/ the person of the defendant is within the jurisdiction. * * * It is well settled both in England and in America that courts of equity have jurisdiction to enforce the performance of contracts, where the party proceeded against is within the jurisdiction of the court, regardless of the location of the property.”

y^So the rule seems to be well settled that while the« decree itself, in such cases, would not directly effect the transfer of title, the decree of the court would bind the consciences of the parties, and could be enforced by a court within the territory where the property was located^ In all jurisdictions it is settled that, nartnership lands must be regarded by a court of equity as personal property for the purpose of settling the affairs of the partnership affairs such court is given jurisdiction over real estate that is outside of the jurisdiction of the court. Thayer v. Lane, Walk. Ch. 200; Moran v. Palmer, 13 Mich. 367; Way v. Stebbins, 47 Mich. 296; Merritt v. Dickey, 38 Mich. 41; Godfrey v. White, 43 Mich. 171; Rammelsberg v. Mitchell, 29 Ohio St. 22; Page v. Thomas, 43 Ohio St. 38 (54 Am. Rep. 788); Greene v. Greene, 1 Ohio, 535 (13 Am. Dec. 642); Shanks v. Klein, 104 U. S. 18.

It is contended, however, by the defendants, that the complaint and answer were not broad enough, or specific enough, to furnish a foundation for the finding the court made in the case, in that there was no description of any of the lands claimed to belong to the partnership, and that the general allegation in the complaint that the lands in Michigan were partnership lands, and the denial of that allegation by the defendant, were not sufficient to create an issue as to any particular description of land, and did not authorize the decree that the land in question, or any part of it, was partnership property; and, further, that the court wotild not have jurisdiction to make a decree as to lands not so described. The petition for dissolution was specific in the: statement that a partnership existed. It also set out facts entitling petitioner to a dissolution, and that the lands in Michigan were purchased with partnership funds and for partnership purposes. The answer denied that these lands were assets of the partnership of James Dunlap & Co. The true purpose of the bill was for dissolution of the partnership, and an accounting between the partners. The Cincinnati court found that these lands were partnership assets. In a bill filed for such purpose, it is not necessary to describe the property specifically in the bill or petition. 2 Bates, Partn. § 936; Little v. Snedecor, 52 Ala. 167; Groves v. Tallman, 8 Nev. 178; Copeland v. Crane, 9 Pick. 73.

No proceedings were taken, so far as shown by this record, to set aside the judgment of the Ohio court. The questions which were there adjudicated cannot be reopened here, and the findings of that court are res adjudícala. Wilcox v. Kassick, 2 Mich. 165; Burnley v. Stevenson, 24 Ohio St. 474 (15 Am. Rep. 621).

Defendants further contend that the decree of the Ohio court was obtained by fraud, and that the sale under it was fraudulently conducted. There is no allegation in defendants’ answer that points out what acts of fraud are complained of. Wilson v. Eggleston, 27 Mich. 257; Reed v. Jourdan, 109 Mich. 128. But, even if the answer were sufficient to admit such proof, the defendants \pre not in position, in this collateral proceeding, to attack the judgment of the Ohio court on that ground. While a third person, without notice (at the time he acquired interests in the property) of the fraudulent character of the judgment, maj" attack the judgment for fraud in a collateral proceeding, it is held that parties and their privies can obtain relief from a fraudulent decree only in a direct proceeding for that purpose, and in the courtf where the original proceeding was had, either by writ of error, or by some other means to set the judgment aside. Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 495; 2 Freem. Judgm. § 331.

It is also contended that the lands are insufficiently described in the decree, for the reason that no State or county, town or range, is designated. We think the descriptions definite enough to enable the lands to be located. The numbers of the section, town, and range are given. See Mee v. Benedict, 98 Mich. 260 (39 Am. St. Rep. 513).

It is also claimed that no decree was made by the Ohio court as to certain descriptions of the lands in controversy here. According to the finding of the Ohio court, these lands were partnership lands, but the title stood in James Dunlap; that he sold them, giving deeds of warranty, to the. knowledge of Mr. Byers, and the proceeds were credited to the partnership. The parties purchasing under suplí circumstances could maintain a bill in chancery to perfect their title. The court was not in error in including these lands in the decree, as well as the other lands referred to where contracts had been made and not completed.

The other points raised by the brief of defendants’ counsel must be overruled, as we think, upon this record, it would be inequitable and unjust to permit the heirs of William J. Byers to claim any interest in these lands, especially in view of the fact that William J. Byers, as well as the company itself, was indebted to James Dunlap, as found by the Cincinnati court, and which sum has not been canceled even by the. sale of the lands in controversy.

The decree of the court below must be affirmed.

The other Justices concurred.


text:
    SARMIENTO v. THE CATHERINE C.
    1. Maritime Liens — Enforcement—Recovery.
    In a proceeding to enforce a lien against a vessel for labor performed in its construction, a recovery cannot be had for an installment due when the work should be completed and accepted, where the work had not been completed at the time the lien was sought to be enforced.
    2. Same — Amendments—Construction of Statute.
    Section 8256,’ 2 How. Stat., providing that, in proceedings to enforce demands ag;ainst water-craft, the complainant may, within 10 days after filing and service of answer, file and serve an amended complaint, must be construed in connection with the general statute of amendments (chapter 264, 2 How. Stat.), and does not operate to preclude amendments upon the trial.
    8. Same.
    Hence, the complaint in such a proceeding may be amended upon the trial so as to show that the vessel was used, or intended to be used, in navigating the waters of this State.
    4. Same — Sufficiency of Complaint — Agency.
    An allegation that labor was performed at the request of the company having charge of the construction of the vessel is sufficient to show that the debt for which the lien is claimed was contracted by an agdnt of such craft.
    5. Same — Waiver of Lien — Promissory Note — Payment.
    A lien against water-craft is not waived by the act of the creditor in accepting a promissory note for the amount due, where the facts and circumstances fail to show an intention of the parties to treat the note as j>ayment of the demand, and where a surrender of the note, it being unpaid at maturity, is tendered by complainant before judgment is taken in the cahse.
    6. Parties — Limited Partnerships.
    Under the rule that, when a limited partnership expires, the partners become general partners if the business is continued (1 How. Stat. § 2352), a suit upon a contract entered into after the termination of a limited partnership is properly brought in the names of all of the partners.
    Appeal from Wayne; Carpenter, J.
    Submitted May 6, 1896.
    Decided July 8, 1896.
    Proceedings by Frank J. Sarmiento and Charles C. Bowen, copartners as F. J. Sarmiento & Company, to enforce a lien under the water-craft law against the steamer Catherine C. The Davis Boat'& Oar Company, as principal, and George S. Davis, as surety, gave the statutory bond for the release of the vessel. From the judgment rendered, all parties appeal.
    Affirmed.

      E. A. Gott (Alfred Bussell, of counsel), for complainants.

      Ed. E. Kane, for defendant Boat & Oar Company.

      Biissel & Campbell, for defendant Davis.
   Long, C. J.

March'20, 1893, the Davis Boat & Oar Company, having a contract with Michael Cudahy, of Chicago, for the construction of a steam yacht, to be called the “Catherine C.,” entered into a contract with F. J. Sarmiento & Co. for the interior finish and deck houses of the vessel. The price was $3,550, payable, $1,183.33 when the wood was delivered, $1,183.33 when the same was in place and fastened, and balance, $1,183.-34, when the work was completed and accepted. The work of Sarmiento & Co. was considerably delayed, and the first payment was made upon the contract, as follows: The Davis Boat & Oar Company was building another yacht, known as the “Davis Yacht,” and Sarmiento & Co. had the contract for the interior work on that. A partial payment was due upon this latter contract as the first installment became due under the contract on the Catherine C. The president of the Davis Boat & Oar Company, on July 20, 1893, inclosed a note to Sarmiento & Co. for $2,449.99, in the letter stating it to be “first payment on Davis yacht interior and Catherine C. interior, with understanding that the Davis yacht delivery is made before it matures.” Sarmiento & Co., upon receipt of the note, credited it on the books on the general account of the Davis Boat & Oar Company. When this note matured, August 23d, it was renewed. Both these notes were discounted by Sarmiento & Co. The renewal note was never paid. September 13, 1893, a complaint was filed by Frank J. Sarmiento and Charles C. Bowen, as copartners, under the name of F. J. Sarmiento & Co., against the yacht Catherine C., under the provisions of the boat and vessel law of this State (2 How. Stat. § 8236). Upon the same day, the Davis Boat & Oar Company, with George S. Davis as surety, executed the bond required by the statute, in the sum of $7,200, and the vessel was released. Thereafter the Davis Boat & Oar Company filed its answer in the case. Upon the trial in the Wayne circuit court, before a jury, there was found to be due the complainants from the defendant the sum of $2,265.05, and that the same was a lien against the yacht Catherine C. at the time she was seized upon the claim of the complainants; and it was therefore ordered in the judgment record that the complainants recover against the Davis Boat & Oar Com.pany, as well as against the surety upon the bond, the sum stated, with costs. Both parties appeal.

The claim of the complainants is that the court was in error in directing the jury that the last installment due upon the contract could not be recovered, because the yacht had not been completed at the time the lien was sought to be enforced. We think the court was correct upon that point, and the question will not be further discussed.

The defendants’ contentions are that the complaint by which the proceedings were commenced does not allege that the vessel fell within the class of vessels named in the act, or that the contract was included in the class of contracts respecting which a lien may arise; that there is no allegation' that the boat was used, or intended to be used, in navigating the waters of this State, or that the debt for which .the lien is claimed was contracted by the owner or part owner, master, clerk, agent, or steward of such craft; and that the complaint gave the court no jurisdiction by reason of such omission.

Section 8236,'2 How. Stat., provides'for a lien in case of “water-craft of above five tons burthen, used, or intended to be used, in navigating the waters of this State, * * * for all debts contracted by the owner or part owner, master, clerk, agent, or steward of such craft, * * * on account of work done * * * in or about the building, repairing, fitting, furnishing, or equipping such craft.”

Thé complaint alleges:

“1. That said steam vessel is above five tons burthen, and is now lying at the port of Wyandotte, Wayne county, within the State of Michigan.
“2. That in or about the months of April, May, June, July, August, and September, 1893, the said vessel being in the course of construction at the said port of Wyandotte, your complainants, at the request of the Davis Boat & Oar Company, a Michigan corporation, then engaged m building said vessel, furnished labor and materials in and about the building, fitting, furnishing, and equipping of such craft. ”

- The complaint also charges that there was $3,600 due over and above all payments, and that complainants claim a lien upon the vessel for such materials and work, under chapter 285, 2 How. Stat.

It will be seen that the complaint states that the vessel was above five tons burthen, but omits to state that it was used, or intended to be used, in navigating the waters of this State, and, as defendants contend, omits to state that the debt for which the lien is claimed was contracted by the owner or part owner, master, clerk, agent, or steward of such craft. "On the trial, upon motion of complainants’ attorneys, the court permitted the complaint to.be amended by adding the words, “The vessel was used, or intended to he used, in navigating the waters of this State;” and the contention here upon the part of the defendants is that the court was in error in permitting such amendment, upon the ground that the general statute of amendments (chapter 264, 2 How. Stat.) has no application to proceedings under the boat and vessel law, and that by section 8256', 2 How. Stat. (being a part of the boat and vessel law), no amendment to the complaint could be made except within 10 days after filing and service of answer or demurrer; and counsel for defendant Davis contend that they did not appear generally in the case, but specially, so far as Mr. Davis is concerned, and no amendment could be allowed so as to affect his interests.

We think the court was not in error in allowing the amendment. While this is a special statutory proceeding, yet such proceedings are amendable the same as in common-law actions. Amendments have been permitted in attachment proceedings, which are purely statutory; and in Barber v. Smith, 41 Mich. 144, it was said:

“This power to cure errors and irregularities by amendment is a useful one if wisely exercised, and, when no provision to the contrary is made, it applies as fully to attachment suits as to others; and the statute favors the opinion that no discrimination in principle has been intended on the subject, and that the design has been that proceedings by attachment should, so far as consistent with the nature of the remedy and the particular provisions supplied by the legislature, be subject to the same practice as other personal actions.”

This rule was followed in Kidd v. Dougherty, 59 Mich. 244. We do not think it was the intent of the legislature, in adopting section 8256, 2 How. Stat. (being section 22 of the boat and vessel law), that an amendment could not be made to a complaint except within 10 days after the filing and service of the answer or demurrer, but that this statute must be construed in connection with the general statute of amendments. Such amendments are permitted in furtherance of-justice. So far as the amendment here affects the rights of Mr. Davis, we think, from the facts contained in thekecord, that, his attorneys having appeared and participated in the trial of the cause, such action must be construed as a general appearance, and the amendment, as against him, was therefore proper.

In answer to the claim that the complaint did not set forth that the debt for which the lien is claimed was cbntracted by the owner, part owner, master, clerk, agent, or steward of such craft, it appears that the Davis Boat & Oar Company was in charge of the building of this vessel. It collected the whole amount from the owner for the construction of the'boat, and $2,800 for extras. It was apparently the sole agent of the owner for its construction, and let the contract to the complainants to furnish certain labor and materials therein. The complaint set forth that the work was done by complainants, and the materials furnished by them, at the request of the Davis Boat & Oar Company. This is a sufficient allegation that the debt for which the lien is claimed was contracted by the agent of such craft.

The contention made that by the taking of the note the lien was waived, we think, has no force. A note cannot be regarded as payment unless specially agreed to be so taken. Here was an amount due for labor and materials upon the Catherine C., as well as upon the Davis boat. The amount due upon each contract was certain and specific, and the mere fact that it was all included in one note cannot be regarded as payment, as there is no fact or circumstance which shows that it was the intent of the parties to treat this note as payment. The authorities are agreed that a note is not payment unless such was the intention of the" parties. Gardner v. Gorham, 1 Doug. (Mich.) 507; Jennison v. Parker, 7 Mich. 365; Dudgeon v. Haggart, 17 Mich. 273. Neither would the taking of the note be a waiver under the circumstances here shown. Moore v. The Fashion, Newb. Adm. 49; Phœnix Iron Co. v. The Hopatcong, 127 N. Y. 206; McNeil v. The Pioneer, 53 Fed. 279. It is also held that a renewal of the note would not be a waiver of the claimed lien. Mott v. Lansing, 57 N. Y. 112. The renewal note was not paid at its maturity, and the complainants took it up, and tendered a surrender of it to the defendant, as, undoubtedly, they were bound to do before judgment and the fixing of the lien upon the vessel. 1 Pars. Mar. Law, 502, and note.

It is objected by defendants’ counsel that Sarmiento & !Co. was a special partnership, and that by reason thereof the suit, not being in the name of the general partner alone, must fail. It appears that the partnership articles were adopted between Mr. Sarmiento and Mr. Bowen on March 23, 1887. This was a limited partnership, and Mr. Bowen was a special partner thereunder. This partnership, by its terms, was to terminate on March 1, 1892; ■and upon the trial it appeared that it had terminated before this contract was made. The rule is that, when a limited partnership expires, the partners become general partners if the business is continued by the partners. 1 How. Stat. § 2352. We think, therefore, that the court was not in error in permitting the action to be sustained in the name of both complainants.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


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    WALKER v. BOTTOMLEY.
    Estoppel — Title to Lands.
    One who forecloses a mortgage as attorney for another, and who permits title to pass to his client under a sheriff’s deed, is estopped, as to an innocent purchaser from the latter, to assert his own title to the land under a claim which, if established, would demonstrate his knowledge, at the time of foreclosure, of the invalidity of the mortgage
    Appeal from St. Clair; Vance, J.
    Submitted May 6, 1896.
    Decided July 8, 1896.
    Bill by Dewitt C. Walker against Thomas H. Bottomley to quiet title. From a decree for defendant, complainant appeals.
    Affirmed.

      Mitchell & Wellman, for complainant.

      Henry P. Jenney (Frank Whipple, of counsel), for defendant.
   Long, C. J.

This bill is filed to quiet title to lot 1, block 1, of Walker’s plat of the village of Capac.'

Complainant claims that he became the owner of the lot prior to. 1857; that in that year he made a contract in writing to sell the same to one Alexander Campbell, by the terms of which contract Campbell agreed to erect a blacksmith shop thereon; that Campbell thereafter erected the shop, and about a year afterwards sold and assigned his contract to Reuben-Banfill; that in the spring of 1858 Banfill called upon him for a deed of the lot under the contract, whereupon he executed a deed ready for delivery, but before delivery he arranged with Banfill to cancel the contract by the payment of certain promissory notes which he had signed with Banfill, and by the sale of certain property to him, and that the arrangement was completed by which no deed.was to be delivered, but the contract destroyed; that at that time he supposed he took the deed with him from Banfill’s house; that, missing the deed, the next morning he called upon Banfill, and was informed by him that, through some mistake, the deed had been burned by Banfill’s wife; that thereafter he removed the blacksmith shop from the premises, but had occupied them continuously, except as hereafter stated; that in 1868 he for the first time learned that the deed to Banfill had not been destroyed, but had been placed upon record in the office of the register of deeds, and that Banfill had conveyed the premises by deed to Amanda Funston, and that she, together with her husband, had executed a mortgage upon the premises to John Phelps; that this mortgage was executed January 22, 1868, and about a month after the date of the deed' to Funston, and covered other parcels of land sufficient to pay the amount claimed in the mortgage; that in 1874 Phelps called upon him as an attorney to foreclose the mortgage; that at first he refused to act as an attorney in the foreclosure proceedings, whereupon Phelps promised him that, if he would so act, he (Phelps) would bid in the premises, and, after his deed became operative, he would deed to the complainant the lot in question; that he did so act as attorney in the foreclosure, and the lot was sold and bid in by Phelps; that a short time after the redemption had expired he applied to Phelps for a quitclaim deed, and on or about May 11, 1876, Phelps did make and deliver to him a quitclaim deed, which he (complainant) supposed was of the lot in controversy; that he recorded it in the office of the register of deeds; that shortly afterwards he learned that Phelps had conveyed the premises to his wife, and she thereupon conveyed to. defendant, Bottomley; that, hearing Bottomley claimed some title to the land, he showed defendant the recorded deed, who assented that he (complainant) had the controlling title; that he soon after discovered that in some way the deed had disappeared from among his papers, — and he charges upon information and belief that the recorded deed was in some way-changed to cover a lot different from the one he supposed he was obtaining from Phelps. Complainant claims to have continued in possession thereafter until April 24, 1892, when defendant unlawfully broke into and upon the premises, and plowed the same, when complainant thereafter again took possession, and defendant undertook by force to regain possession, when complainant commenced a suit in trespass against the defendant before a justice of the peace; that thereafter defendant commenced suit against him in trespass before the same justice; and that thereupon he filed this bill to quiet his title and restrain the prosecution of the trespass suit.

The defendant answers the bill, and neither admits nor denies the claim made by complainant as to his dealings with Banfill, but avers that he is a bona fide purchaser of the premises, and holds title under mesne conveyances from Banfill and wife. The defendant also sets up in his answer the foreclosure of the mortgage by complainant as attorney for Phelps, the purchase of the land by Phelps, and the deed from Phelps to his wife, and her conveyance to himself. The defendant denies that complainant showed him any deed of the premises from Phelps to himself, but admits that complainant told him he had such a deed, but, upon being asked to exhibit it, he invented some excuse for >his failure to do so, and that, upon examining the records in the register’s office, defendant found a deed from Phelps to complainant, but it conveyed other premises. Defendant also sets up in his answer that he and his grantors have been in actual possession of the premises from the time Banfill procured his deed from complainant, and that complainant committed trespasses thereon, and by force attempted to get possession thereof.

The court below found that, as early as 1869, the complainant knew that the deed from himself to Reuben Banfill was not lost, but was of record, and that Banfill conveyed the premises, through his wife, to Amanda Funston, who executed the mortgage to Phelps, and that complainant, as attorney for Phelps, foreclosed the mortgage, and permitted Phelps to bid the same in, and that defendant had purchased the premises in 1880 from Eliza Phelps, and in good faith, without any knowledge whatever of complainant’s claim. The court therefore directed in the decree that complainant execute to the defendant a conveyance of the premises, and that, in default thereof, a copy of the decree should be filed in the office of the register of deeds as a conveyance' to the defendant from the complainant. Complainant appeals.

1. We think the evidence of complainant falls far short of showing any such continued, adverse, hostile, open, and notorious possession of the premises as would establish his claim of title.

2. We think the court was not in error in finding that the defendant was. a good-faith purchaser. There was no evidence upon the record that complainant had any title whatever, and his action in foreclosing the mortgage for Phelps, and permitting title to pass to Phelps under the sheriff’s deed, estops him, under the circumstances here shown, from setting up title in himself as against the defendant.

3. Upon the whole record, we think the complainant has made no such showing, by his proofs, as entitles him to make claim to the premises, and that the court below was correct in directing that title be confirmed in the defendant.

The decree will be affirmed, with costs.

The other Justices concurred.


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    CURTISS v. WITT
    Taxes — Seizure op Chattels — Liability op Oppioer.
    ■ The authority of a tax collector to seize personal property and sell the same for delinquent taxes does not proceed from the tax roll, hut from the warrant, and, where the latter is fair upon its face, the officer is protected, even though a demand is made for a return of the chattels prior to the sale.
    . Error to Lenawee; Lane, J.
    Submitted June 11, 1896.
    Decided July 8, 1896.
    Trover by William H. Curtiss against George Witt.Erom a judgment for defendant, plaintiff brings error.
    Affirmed.

      Mains & Mains, for appellant.

      Westerman & Westerman, for appellee.
   Hooker, J.

The plaintiff brought trover for the alleged conversion of a road cart, which the defendant seized for taxes of the plaintiff, and refused to return to the plaintiff upon demand. We think that the warrant was fair upon its face, and a full protection to the defendant in his seizure of the cart; but it is claimed that it was not a protection to him after - demand, as, it is said, that the right of property, -and not a mere trespass, is involved.

It is a novel proposition that an officer may safely take property under a tax warrant, for the purpose •of sale, but, if demand is made before sale, the warrant ceases to protect him-, and he' sells, or even has the custody of, the property at his peril. The plaintiff contends that by such demand he imposes upon the ■defendant the burden of ascertaining the validity of the proceedings for the imposition of the tax. If this is so, counsel have made a discovery which will be far-reaching, and will malee the sale of personal property for taxes very dangerous business. The authority of the collector does not proceed from the roll, but from the warrant. That is a protection to him in seizing the property and selling the same, when it is fair upon its face. This is a rule that never has been departed from in this State, so far as we can discover. Tweed v. Metcalf, 4 Mich. 579; Byles v. Genung, 52 Mich. 504; Wood v. Thomas, 38 Mich. 686; Moss v. Cummings, 44 Mich. 359; Bird v. Perkins, 33 Mich. 28. Indeed, the importance of the collection of the public revenue was thought sufficient reason for denying to individuals the right of trying the question of the regularity of tax proceedings, anterior to the warrant, upon replevin, and a statute prohibits the replevin of property seized by virtue of any tax warrant in pursuance of any law of this State. This court has, however, sustained actions of replevin in two or three cases where the tax was levied upon property under circumstances showing that such levy was not in pursuance of any law of this State. Such cases are LeRoy v. East Saginaw City Railway, 18 Mich. 239 (100 Am. Dec. 162); McCoy v. Anderson, 47 Mich. 502; Hood v. Judkins, 61 Mich. 583; Lantis v. Reithmiller, 95 Mich. 47. But they cannot be applied to this case, as it is not within their rule.

The judgment is affirmed.

The other Jhstices concurred.


author: Hookeb, J.

text:
    HOFFMAN v. SIMPSON.
    Marriage — Legitimacy op Child — Evidence.
    The marriage of parties and the legitimacy and sole heirship of a child are prima facie established, so as to render a deed from the child admissible in evidence, by the testimony of witnesses that they knew the parties for many years, that they lived together, and held themselves out as husband and wife, and were so regarded in the community, that such child grew up in the family of the parties, and was always recognized as their daughter, and that the parties had no other children to the knowledge of the witnesses.
    Error to Crawford; Sbarpe, J.
    Submitted June 12, 1896.
    Decided July 8, 1896.
    Replevin by John M. Hoffman against William H. Simpson and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Phillips & Jenks, for appellant,
    cited Proctor v. Bigelow, 38 Mich. 282; Fulkerson v. Holmes, 117 U. S. 389; Jackson v. King, 5 Cow. 237 (15 Am. Dec. 468); Eaton v. Tallmadge, 24 Wis. 217; Jackson v. Cooley, 8 Johns. 128; Denoyer v. Ryan, 24 Fed. 77; McClaskey v. Barr, 47 Fed. 168; Elliott v. Peirsol, 1 Pet. 328; Mason v. Fuller, 45 Vt. 29; Backdahl v. Lodge, 46 Minn. 61.

      M. J. Connine, for appellees.
   Hookeb, J.

The plaintiff appeals from an adverse directed verdict in replevin of logs, depending on plaintiff’s title to land from which they were cut. His documentary evidence of title consisted of a certified copy of the patent of the State of Michigan to William Sanborn of the premises, dated in 1873, and a quitclaim deed dated in January, 1892, from Kate Sanborn Jenks to the plaintiff and Frank Hoffman, and a quitclaim deed dated in April, 1892, from Frank Hoffman to the plaintiff. The admission of-these deeds being objected'to, plaintiff’s counsel intróduced testimony which he claimed tended to prove that William Sanborn and Nancy Howard were married and lived in Port Huron, and that Kate Sanborn was their daughter and sole heir at law, and that William Sanborn died intestate. The court, however, thought this testimony insufficient to sustain the claim that Kate Sanborn had title, and refused to admit the deed from her in evidence. The case, therefore, is resolved into the question whether there was prima facie evidence that Kate was the legitimate daughter of William San-born.

The evidence may be summarized as follows: The plaintiff testified that he knew William Sanborn and Nancy Howard before their alleged marriage; that both resided in Port Huron, where he lived; and that after a time, and before the war, it was reported that they had married. They had lived together at Port Huron, and they had passed and been known as husband and wife since. William L. Jenks testified that he knew William and Nancy Sanborn for 28 or 30 years, and that they lived together in Port Huron, and held themselves out as husband and wife, and were so regarded in the community; that he knew the daughter, Kate, 26 or 28 years, which was about her age; and that she was always called “daughter” by William and Nancy Sanborn. Kate was the wife of the witness’ brother. On cross-examination, the witness emphasized the foregoing by saying that Kate grew up in the family, and that the parties had no other children to his knowledge, and he would have known it if they had.

The court thereupon struck out the deed, on the grounds: (1) Lack of proof of marriage; (2) that there was no proof that Kate was the legitimate daughter or heir of William Sanborn, and not an adopted daughter.

Counsel for defendants claims:

“In order to go to the jury, there should have been some legal proof upon these four points, viz.:
“1. The marriage of William Sanborn and Nancy Howard at a time prior to the birth of Kate Sanborn Jenks.
“2. That Kate Sanborn Jenks was their child, and the child of both of them, born in lawful wedlock.
“3. That Kate Sanborn Jenks was their only child.
“I. That Kate Sanborn Jenks solely took the land by will, or that William Sanborn died intestate, and she alone took by descent.”

We think the evidence of marriage and the presumption of legitimacy sufficient to make a prima facie case, and we are as well satisfied that there is no presumption that the Sanborns had other children, or that Sanborn died testate. See Proctor v. Bigelow, 38 Mich. 282, and other cases cited in appellant’s brief.

The judgment is reversed, and a new trial ordered.

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