author: Ostrander, J.

text:
    KERR v. RUPP.
    1. Appeal and Error — Appealable Orders — Overruling Special Demurrer.
    Chancery Rule 9, requiring that the causes of demurrer be in all cases specified, did not change the classification of demurrers as general and special, nor enlarge the statute (§ 549, 1 Comp. Laws) giving the right of appeal from an order overruling a general demurrer.
    2. Same — Demurrer^-General or Special.
    A demurrer to a bill for multifariousness is special and no appeal lies from an order overruling such a demurrer (§ 549, 1 Comp Laws).
    Appeal from Genesee; Wisner, J.
    Submitted February 27, 1906.
    (Docket No. 198.)
    Decided May 24, 1906.
    Bill by William Kerr and others against John J. Rupp and Fred P. Brewer, executors of the last will and testament of Moore Kerr, deceased, to cancel and annul certain assignments of complainants’ shares of deceased’s estate as obtained by fraud, to restrain payment of the shares to defendant Rupp under the assignments, and to compel payment of their respective shares to complainants. From an order overruling a demurrer to the bill, defendants appeal.
    Appeal dismissed.
    Complainants are 7 of 15 nephews and nieces and residuary legatee? of Moore Kerr, deceased. Defendants are executors of the last will of said Móore Kerr. Each of the complainants assigned and transferred to defendant Rupp, for the sum of $6,000, all interest in said estate. Rupp and decedent Kerr were partners, the assets of the firm consisted largely of pine and pine lands, and, it is charged, complainants were fraudulently induced by defendants to sell their respective interests for a sum very much less than the true value of such interests respectively. The bill is filed to restrain the executors from paying to Rupp any interest in the estate acquired by said assignments, to cancel and annul said assignments and transfers, to compel payment to complainants of their respective shares of said estate according to the true value thereof and as though no transfers had been made. Defendants demurred to the bill, and for ground of demurrer set out:
    “ That it appears by the bill of complaint that each of the complainants, equally with others not parties hereto, had a several and distinct interest in the estate of Moore Kerr, deceased, mentioned in said bill, and that neither of the complainants had any interest whatever in the separate share or interest of any of his co-complainants; that each of the complainants sold and transferred to the defendant John J. Rupp his distinct and separate interest in the estate of Moore Kerr, deceased, and that each of the complainants was paid therefor, separately and apart from the rest of the complainants, six thousand dollars by the said Rupp for his separate and distinct interest; and that the purchase by the said Rupp of the several said separate and distinct interests of each of the complainants, and the transfer of such interest by such complainant to said Rupp, was a separate, several and distinct transaction; and it therefore appears by the said bill that the same is exhibited by the complainant William Kerr and the several other persons therein named as complainants thereto, for distinct matters and causes in several whereof as appears by the said bill, the said complainants are ‘not in any manner in common or jointly interested or concerned, and that the bill is multifarious, and that the said complainants have not in and by their said bill made or stated such a case as entitles them in a court of equity to any relief from or against these defendants, or either of them, touching the matters contained in said bill, or any of such matters.”
    The demurrer was overruled, and defendants were required to answer. From this order they have appealed.

      A. A. Ellis, for complainants.

      Humphrey, Grant & Smith, for defendants.
   Ostrander, J.

(after stating the facts). The first question presented is whether or not an appeal lies from the order of the circuit court. This question is answered when it is determined whether the demurrer is general or special. Previous to September 8, 1883, appeals from orders overruling demurrers were not permitted. Bennett v. Nichols, 12 Mich. 22; Kirchner v. Wood, 48 Mich. 199. The amendment of 1883 (1 Comp. Laws, § 549) gives the right to appeal from an order overruling a general demurrer. Chancery Rule 9 requires that the causes of demurrer be, in all cases, plainly specified. The rule does not enlarge the statute, nor in any manner change the classification of demurrers as general and special. Daschke v. Schellenberg, 124 Mich. 16. The demurrer in the instant case is a special demurrer. I refer for authority to elementary treatises and to definitions found in them. Story on Equity Pleadings, § 527, having first divided demurrers into two classes of general and ¡special, says:

“Secondly. We come, in the next place, to objections fo the frame and form of the bill, which may be taken by demurrer. These are: (1) Defects of form; (2) multifariousness; and (3) want of proper parties, or misjoinder •of parties. * * *

“§ 530. (2) In the next place, as to multifariousness. '* * * The only way of reconciling the authorities upon the subject is by adverting to the fact that, although the books speak generally of demurrers for multifariousness, yet, in truth, such demurrers may be divided into two kinds: (l) Frequently the objection raised to a bill, though termed multifarious, is, in fact, properly speaking, a misjoinder of causes of suit; that is to say, the cases or claims, asserted in the bill, are of so different a character that the court will not permit them to be litigated in one record. It may be that the plaintiffs and the defendants are parties to the whole transactions, which form the subject of the suit; but, nevertheless, those transactions may be so dissimilar that the court will not allow them to be joined together, but will require distinct records. (2) But what is more familiarly understood by multifariousness, as applied to a bill, is where a party is brought as a defendant upon a record, with a large portion of which, and of the case made by which, he has no connection whatsoever. In such a case,.he has a right to demur and to state the evil of thus uniting distinct matters in one record to be (and so the old form of demurrer was), that it put the parties to great and useless expense. Such an objection could have no application to the case of a mere misjoinder of different causes of action between the same parties, plaintiffs and defendants, and none others.”

Clearly, under the classification made by Judge Story, a demurrer for multifariousness was required to set out the special ground of demurrer. Since the adoption of Chancery Rule 9, the character of the demurrer is determined by the special reasons therein assigned and this demurrer cannot be considered as- both a general and a special demurrer. See Ideal Clothing Co. v. Hazle, 126 Mich. 262. That it concludes with the form used for a general demurrer does not aid it. It is said, by counsel for appellants, that it has been the practice of this court to review by appeal cases in which demurrers assigning multifariousness have been overruled by the lower court, beginning with Hunton v. Platt, 11 Mich. 264, and continuing to Douglass v. Boardman, 113 Mich. 618. This statement is, to some extent, supported by the facts. In Douglass v. Boardman the appeal was from an order overruling a demurrer, and this court determined the demurrer well grounded, reversed the order, and dismissed the bill. An examination of the briefs in that case shows that counsel for complainants were contending that a general demurrer to the bill was bad for various reasons stated, and the following, constituting all that is said upon either side upon the subject:

“But defendants may urge that their demurrers are not general. In that case we answer that this appeal should be forthwith dismissed, as under the statute * * * and under the decisions of this court, no appeal can be taken from an order overruling a special demurrer.”

In each of the cases cited in the opinion in that case the appeal was from a final decree. Again, in Stone v. Rail road Co., 139 Mich. 265, the appeal was from an order overruling demurrers, and one ground of demurrer was that the bill was multifarious. The opinion, to some extent, discusses the objection that the bill was multifarious, concluding by affirming the order appealed from. The briefs do not raise the question here presented. In no other cases which have come to our attention has this court assumed to review the determination of the court below in overruling special demurrers, and in Douglass v. Boardman, only,.has it sustained a special demurrer on such an appeal.

The opinion in Schaub v. Welded Barrel Co., 130 Mich. 606, is clearly not a precedent for reviewing an order overruling a special demurrer. But, whether or not there are other cáses, we are all agreed upon the propositions (1) that the demurrer of the defendants is special, and not general; (2) that no appeal lies or will be entertained from an order overruling such a demurrer. There is no occasion to adopt, for the purpose of permitting appeals, a new classification of demurrers. The power to dismiss bills for multifariousness has always been sparingly exercised. It is proper practice to raise the objection, in the court of original jurisdiction, by demurrer.' The matter of proper relief is so completely within the control of the court on final hearing that no hardship is likely to arise from answering over and proceeding to the merits of the controversy, or in standing upon the demurrer and appealing from the final decree.

The appeal is dismissed. Costs are awarded to appellees for the expenses of printing, with a solicitor’s fee of $10. Defendants will be allowed 20 days in which to answer the bill of complaint.

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


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    BROTHERTON v. GILCHRIST.
    1. Partnership — What Constitutes.
    Where three persons enter into a joint venture, in reference to which it is agreed that one of them shall furnish the capital, his liability to be limited to his advances, that his connection with the enterprise is not to be disclosed, that the business shall be conducted in the name of the others, and that neither shall he have authority to mate contracts which shall bind the others nor they to bind him, the adventurer furnishing the capital is not a partner with the others, though he is to participate in the profits if any there be.
    2. Same — Evidence.
    Reference in a letter by the furnishing adventurer to himself as “the silent partner ” is not conclusive, under the circumstances, of the existence of the partnership relation, but is merely an instance of the use of inexact words to describe a relation which is not that of a partner.
    3. Same — Admissions.
    Announcement by the furnishing adventurer, after the business is ended, of his purpose to pay all outstanding accounts, accompanied by no admission of liability, does not enlarge his obligation so that he must be treated as a partner.
    4. Same — Community op Property.
    On a bill for a partnership accounting, evidence examined, and held, insufficient to show a community of property between the parties necessary to constitute a partnership.
    Appeal from Sanilac; Beach, J.
    Submitted February 28, 1906.
    (Docket No. 205.)
    Decided May 24, 1906.
    Bill by Wilbur Brotherton against William A. Gilchrist, Perry F. Trowbridge and the Sanilac Sugar Refining Company for a partnership accounting. From a decree dismissing the bill as to defendant Gilchrist, the other defendants appeal.
    Affirmed.

      William H. Aitken, for defendant Sanilac Sugar Refining Co.

      O. F. Gates, for defendant Trowbridge.

      George P. Oodd (Thomas A. F. Weadock, of counsel), for defendant Gilchrist.
   Carpenter, C. J.

This is a suit in equity for a partnership accounting. The business of the partnership was that of raising sugar beets in the county of Huron in the year 1902. Complainant, defendant Trowbridge, and defendant Gilchrist each was interested in this business. Complainant and Trowbridge were partners in said business, and the important question in the case is whether Gilchrist was also a partner. The trial court decided that he was not, and entered a decree in accordance with that decision. From that decree defendants Trowbridge and the Sanilac Sugar Refining Company (a creditor of the partnership) appeal.

They maintain that the trial court erred in deciding that Gilchrist was not a partner* The circumstance that the Sugar Refining Company stands in the relation of a creditor to the partnership is unimportant. For it is not claimed that the credit owned by that company was so expended as to make Gilchrist liable therefor unless he was in fact a partner. We have then to consider only this •question, viz.: Was Gilchrist actually a partner? .The ■only witnesses sworn in the case were defendant Trow-bridge and one Andrew Wilson. In determining the case we have to consider only their testimony and certain letters; some of which were written by Trowbridge and some by Gilchrist. This testimony clearly proves that Brotherton, Trowbridge, and Gilchrist entered into a joint •venture to raise sugar beets; that Trowbridge was to manage the enterprise and receive therefor the sum of $150 per month; that Brotherton was to contribute his counsel and advice; that Gilchrist was to advance capital to the amount of $10,000; that the enterprise was to be carried on under the name of Brotherton and Trowbridge; that Gilchrist’s connection with the venture should not be disclosed; and that the profits should be divided equally among the three interested parties. It also appears from a letter written by defendant Trowbridge to his codefendant the Sugar Refining Company that Gilchrist should “receive no return of his advances until all other obligations are met. In case there is not enough left to meet these advances by the silent partner, Mr. Brotherton and I each agree to be responsible for one-third of the deficit.” Gilchrist did in fact advance $22,650. The venture-proved unsuccessful and he has lost this entire amount,, unless he can collect a part of it from his associates.. Though he made various suggestions .to Trowbridge, Gilchrist took no active part in the business management of the venture. He did, however, on one occasion give directions or suggestions “about plowing where Brother-ton and Trowbridge were raising beets,” and on another occasion directed or suggested that certain employés be discharged.

The law governing this case is stated in the leading case of Beecher v. Bush, 45 Mich. 188, as follows:

“ Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he has formed a relation in which the elements of partnership are to be found. And what are these ? At 'the very least the following: Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers within the scope of the business, which powers, however, by agreement between the parties themselves, may be restricted at option, to the extent even of making one the sole agent of the others and of the business.”

See, also, Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 613; Dutcher v. Buck, 96 Mich. 160 (20 L. R. A. 776). Under this rule parties interested in a joint venture are not partners unless one of them has (to quote other language from the opinion in Beecher v. Bush) “clothed the other with an agency to act on his behalf in this business.” Tested by this rule there was no partnership. For it is clearly established by the correspondence in this record that neither Brotherton nor Trowbridge had authority to make contracts which would bind Gilchrist. It was clearly understood that the liability of Gilchrist should be limited to his advances. Neither had Gilchrist authority to make contracts which would bind Brotherton and Trowbridge. It is true Trowbridge testifies that Gilchrist referred to himself as “a silent partner,” and Wilson gives similar testimony. This, if we had no other testimony, might be convincing, but, under the circumstances, we think that it is merely an instance of the use of inexact words to describe a relation which was not that of a partner. It is also true that after the partnership business was ended Gilchrist at one time announced to Trowbridge his purpose of paying all outstanding accounts. This announcement was accompanied by no admission of liability and did not enlarge his obligation.

Nor is this case within the principles of Butcher v. Buck, supra. The most that can be claimed for that case is that it decides that a partnership exists if there is “community of property, community of interest and community of profits.” That decision is not applicable if a single one of these elements is lacking. It does not apply if there is not community of property. See Canton Bridge Co. v. City of Eaton Rapids, supra. In the case at bar all the evidence in the record bearing on the question of community of property in the beet crop is this statement (in a letter written by defendant Trowbridge to his codefendant, the Sugar Refining Company) “the silent partner (meaning defendant Gilchrist) has no claim whatsoever upon the crop.” We are bound to say, therefore, that there was no community of propex’ty, and that the decision of Dutcher v. Buck, supra, is inapplicable.

In my judgment, the trial court correctly decided that defendant Gilchrist was not a partner of complainant and of defendant Trowbridge, and the decree appealed from should be affirmed.

Mo Alva y and Ostrander, JJ., concurred. Blair and Moore, JJ., concurred in the result.


text:
    FROHLICH v. INDEPENDENT GLASS CO.
    1. Sales — Goods—Failure to Deliver — Damages.
    Where, after entering into a contract for the sale of glass, and before time for delivery, the sellers write the buyer that no specifications have been issued on account of the contract and will not be until a full settlement of the buyer’s unpaid account is received at their office, referring to an account for glass sold during the preceding year, the statement is not a. distinct, unequivocal, and absolute refusal to perform, within the rule that a renunciation of a contract by a party imposes on the other the obligation to take immediate steps to' lessen his damage, and the measure of damages, on failure of the sellers to perform their contract, is the difference between the contract price of the glass and its market value at the time the sellers are bound to deliver, and not at the time of making the statement.
    3. Same.
    Nor is the damage lessened by the failure of the buyer to buy-glass from the seller for cash during the period in which delivery may be made under the contract.
    3. Same — Performance of Contract — Excuse for Default in Delivery.
    Where, after entering into a contract for the purchase of glass, and before the time for its delivery, the buyer writes the sellers that he cannot use at any price any more of a particular brand of glass, describing only a small part of the glass made by the sellers, and “trust you will make the assignments with standard tank factories whose produce is up to the usual standard of quality,” his act in so doing is not a distinct, absolute, and unequivocal refusal to receive performance, justifying the seller’s refusal to perform.
    4. Same.
    A contention by the sellers, in an action for breach of the contract, that the refusal of the buyer to pay to them an indebtedness antedating the contract destroyed his credit and absolved them from the obligation to perform the contract sued on, is untenable, since' nothing short of breach of contract or actual insolvency on the part of the buyer will excuse the seller from fulfilling the contract on his part.
    5. Abatement and Revival — Grounds of Abatement — Want of Jurisdiction.
    Want of the trial court’s jurisdiction because of the fraudulent use of its process is properly raised by-plea in abatement.
    6. Same — Waiver of Objection — Ruling.
    By pleading the general issue, 'after the overruling of his plea in abatement, defendant waives the objection to the jurisdiction of his person raised by the plea.
    Error to Wayne; Mandell, J.
    Submitted March 1, 1906.
    (Docket No. 29.)
    Decided May 24, 1906.
    Assumpsit by Simon Frohlich against the Independent Glass Company for breach of a contract of sale. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Reversed.

      Geer, Williams, Martin & Butler, for appellant.

      Julian G. Dickinson (George P. Kirby, of counsel), for appellee.
   Carpenter, C. J.

Early in 1902 Edward Frohlich (plaintiff’s son), doing business as the Edward Frohlich Glass Company, and defendant entered into, a written contract whereby the latter agreed to sell, and the former to buy, upon 60 days’ credit, 15,000 boxes of glass at a stated price; the'same to be, delivered at the convenience of defendant during the following months of May and June. On the 21st of April, 1902, defendant wrote said Edward Frohlich Glass Company “that no specifications have been issued on account of your May and June contract, nor will they be until a full settlement of your unpaid account (for glass sold during the preceding year) * * * is received in this office.” This indebtedness was not paid, and no glass was delivered. The cause of action was assigned to plaintiff, and he brought this suit to recover damages for the breach of said contract. He did recover in the court below a verdict and judgment for the amount of $3,450. He asks this court to reverse that judgment upon the ground that the jury, by the? direction of the trial judge, applied an improper rule in measuring his damages.

The trial judge charged the jury that the measure of damages was the difference between the contract price of the glass and its market value on the 21st of April, 1902. (This was the day defendant notified the Frohlich Glass Company that it would not deliver the glass unless an old indebtedness was paid.) Plaintiff insists that the proper measure of damages was the difference between the contract price and the market value of the glass at the time when defendant was bound to perform its contract. ( Defendant was bound to perform its contract June 30, 1902, and plaintiff’s testimony tended to prove that the market price of glass was higher that day than it was on the 21st of April.) The plaintiff’s contention is correct, unless it may be held that defendant’s letter of April 21st changed the time for the performance of the contract. That letter did not change the time of performance unless it amounted to a renunciation of the contract on the part of defendant, and thereby imposed upon plaintiff’s assignor the obligation to take immediate steps to lessen his damages by purchasing glass elsewhere. It is well settled that a statement made by a party to a contract before the time arrives for its performance cannot be considered a renunciation unless it is a “distinct, unequivocal, and absolute refusal to receive performance or to perform on his own part.” 2 Mechem on Sales, § 1087; Wigent v. Marrs, 130 Mich. 609; Dingley v. Oler, 117 U. S. 490. The statement in defendant’s letter of April 21st that it would not perform its contract unless paid an old indebtedness then due was at most. a conditional refusal. It was not a “distinct, unequivocal, and absolute refusal,” «and it had therefore no effect upon the contractual obligations of the parties to this suit. We are therefore of the •opinion that the measure of damages was the difference between the contract price of the glass and its market price at the time the defendant was bound to deliver the .same (viz., June 30, 1902) and that the charge given was •erroneous.

To prevent any misapprehension we think it proper to say that it follows from our reasoning that another portion of the charge not heretofore referred to was also erroneous, viz., that part of the charge which permitted the jury to lessen plaintiff’s damages because his assignor did not buy from defendant glass for cash during the months of May and June, 1902. Defendant contends that these errors were not prejudicial for several reasons:

First. That defendant accepted the proposition of plaintiff’s assignor to purchase the glass in question “ subject to strikes, fires and delays beyond our control,” that plaintiff’s assignor never assented to this condition, and that, therefore, there was no valid contract upon which this action can be maintained. We are persuaded.that this contention is based upon an erroneous understanding of the testimony. We are unable, after diligent search, to find any testimony which supports it. Even the testimony introduced by defendant tends to prove that plaintiff’s assignor did assent to this acceptance.

Second. Defendant contends that the following statement, viz.: “We also beg to advise you that we cannot use any more Barnesville glass (this describes only a small part of the glass made by defendant) at any price, and -trust you will make the assignments with standard tank factories whose produce is up to the usual standard of quality,” contained in a letter written March 28, 1902, by plaintiff’s assignor to defendant justified the latter’s refusal to perform its, contract. This statement did not justify defendant’s refusal to .perform its contract. It was clearly not a “distinct, absolute and unequivocal refusal to receive performance,” and, under the reasoning of this opinion, had no effect upon the contractual obligations of the parties.

Third. It is insisted that the refusal of plaintiff’s assignor to pay his old indebtedness destroyed his credit and absolved defendant from its obligation to perform the contract sued upon. We may answer this as we answered a similar contention in F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich. 44:

“ Nothing short of a breach of contract or actual insolvency would excuse (the defendant) from fulfilling the contract on its part.”

Fourth. It is insisted that plaintiff’s' assignor “ having-supplied himself with the glass called for by his contract without showing any actual loss, suffered no damages.”' This contention may be answered by saying that the testimony warrants the inference, if it does not conclusively prove, that plaintiff’s assignor did not supply himself with the glass called for by his contract.

Fifth. It is contended that the lower court never acquired jurisdiction because of a fraudulent use of its process. This question was properly raised by a plea of' abatement. This plea was overruled, and defendant pleaded the general issue. By doing this, it waived the. objection made in the plea of abatement. See Griffin v. Wattles, 119 Mich. 346.

The error heretofore pointed out was, in our opinion,, prejudicial, and the judgment must therefore be reversed,, and a new trial ordered.

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


author: Blair, J.

text:
    CHAPOTON v. PRENTIS.

    1. Fraudulent Conveyances — Consideration — Evidence—Sufficiency.
    On a bill by an executor to set aside the deed of a trustee to a creditor of the testator made in obedience to an order signed while testator was in extremis, evidence examined, and held, to warrant a finding that the indebtedness which the trust was executed to secure had been paid, and that the deed by the trustee was therefore without consideration and a fraud on testator’s creditors.
    2. Witnesses — Competency—Transactions With Persons Since Deceased.
    On a bill by an executor to set aside a deed made by testator’s trustee to a creditor as in fraud of other creditors of the testator, the claim being that the debt owing to the grantee had been paid, an attorney who acted as the testator’s confidential adviser in the matter, and also represented the grantee, is incompetent to testify as’to the transaction.
    3. Executors and-Administrators — Deficiency of Assets — Fraudulent Conveyance — Setting Aside — Statutes.
    Where there is a deficiency of assets in the hands of an execu- ' tor, through the allowance of claims which become a charge on the estate, the executor -is empowered to institute proceedings under sections 9363 et seq., 3 Comp. Laws, without an order of the probate court or an application by creditors.
    4. Same — Allowance of Claims.
    On a bill by an executor to set aside a conveyance by his testator as in fraud of creditors, the allowance by the commissioners of claims which do not show on their face that they accrued after testator’s death constitutes prima facie evidence of their existence before that period.
    5. Same — Conolusiveness.'
    The allowance of claims against an estate by commissioners having jurisdiction, is, in the absence of fraud, conclusive against the estate and all persons having an opportunity to be heard.
    6. Same — Actions—Pleading—Defenses.
    Where, on a bill by an executor to set aside an alleged fraudulent conveyance of testator’s property, on the ground that there was a deficiency of assets, defendant’s answer admits that the commissioners on claims gave notice of their meetings “ according to the statute in such case made and provided,” defendants are not entitled to avail themselves of the fact that notice of such meetings was not given to the executor.
    7, Same — Parties.
    One who has parted with his interest in property alleged by an executor to have been conveyed in fraud of creditors, of the estate is not a necessary or proper party to a suit by the executor to set aside such conveyance.
    8.. Same — Decree.
    On a bill by an executor to set aside an alleged fraudulent conveyance of testator’s property because of the deficiency of assets to pay claims allowed against the estate, as authorized by section 9363, 3 Comp. Laws, a decree requiring a reconveyance of such property to the executor and a sale thereof in the ordinary manner to pay debts is too broad, and will be modified, so as to require the grantee to pay claims allowed against the estate and costs of the proceedings in the probate and circuit courts within a reasonable time from the entry of the decree, and that the lands be sold only on his failure to do so.
    Appeal from Wayne; Brooke, J.
    Submitted March 1, 1906.
    (Docket No. 73.)
    Decided May 24, 1906.
    Bill by Edmund A. Chapoton, executor of the last will and testament of Thomas L. State, deceased, against John E. Prentis and James T. Keena, trustee, to reach assets disposed of in fraud of creditors. Erom a decree for complainant, defendant Prentis appeals.
    Modified and affirmed.

      Clarence A. Lightner, for complainant.

      James Swan, for appellant.

       Rehearing denied November 7, 1906.

   Blair, J.

Thomas L. State died at St. Mary’s Hospital, in Detroit, on November 17,1900. On November 14, 1900, State signed an order upon defendant Keena, as trustee, to convey the real estate which is the subject of controversy in this suit to defendant John P. Prentis. In pursuance of this order, on the same day, defendant Keena executed a deed to defendant Prentis of the property.

Thofnas L. State had been a resident of Detroit for many years. His wife’s name was Mary Josephine State. State’s wife died several years before his death. They had no children and State was her sole next of kin. At the time of her death, she was the owner, in fee, of the house and lot in question in this suit. At the time of her death, there was outstanding upon this property a mortgage for $700, given by Mrs. State to the Detroit Savings Bank, bearing date October 1, 1890. Thomas F. Sullivan was at this time discount clerk of the People’s Savings Bank, of which George E. Lawson was cashier, and defendant James T. Keena, attorney.

Previous to April 19, 1893, the Detroit Savings Bank had placed this mortgage, for collection, in the hands of its attorneys, and on that day the total amount due for principal and interest (being $810) was paid to the Detroit Savings Bank by a check of the People’s Savings, signed “ State per Sullivan.” The books of the Detroit Savings Bank show that upon receiving this amount the bank executed an assignment of the mortgage on April 19, 1893, and the note, to which it was collateral, to Thomas State. This assignment was never recorded, and apparently was never acted upon, because there appears of record an assignment from the Detroit Savings Bank to Thomas F, Sullivan, dated December 28,1894, and the explanation of Mr. Boss, the assistant cashier of the Detroit Savings Bank, is that after the execution of the assignment to State, that assignment was returned to the Detroit Savings Bank, who, at the request of State and Sullivan, executed the assignment to Thomas F. Sullivan. Thereupon, foreclosure by advertisement of this mortgage was had, Mr. Browse T. Prentis acting as Sullivan’s attorney in the matter, and upon this foreclosure a sheriff’s deed was subsequently, and on April 2, 1895, executed to Sullivan. Before the time of redemption had expired, and under date of October 25, 1895, Sullivan executed a trust deed of this property to defendant James T. Keena. This deed placed the legal title to the property in James T. Keena as trustee, with power to sell the property and pay two notes executed by State on the date of the trust deed, one payable to defendant John F. Prentis for $500, with interest, and the second payable to Thomas F. Sullivan for $600, with interest. Upon payment of these sums, the trust provided that the property was then to be conveyed to State. Mr. Keena testified:

“ That deed was made to me by Mr. Sullivan under an understanding that I was to hold the title for Mr. State and as security for an indebtedness due from Mr. State to Mr. Sullivan.”'

On November 14, 1900, Mr. Prentis brought to Mr. Keena the order, which contained the signatures of Thomas L. State, Thomas F. Sullivan, and John F. Prentis, and requested Keena to convey the property to defendant Prentis. Thereupon, Mr. Keena executed the deed to defendant Prentis, now in question. State died November 17,1900, and was on his deathbed when this order was signed by him. Browse T. Prentis testified:

Q. You don’t know whether the note is still outstanding as a claim of John Prentis, or whether it is a canceled note ? You don’t know that ?

‘A. As a matter of law, I should think that note was paid.

“ Q. If that note was paid, why didn’t you hand that note to Tom State when this transaction took place ?

“A. Mr. State was dying.”

Upon the death of Thomas State, complainant was duly appointed executor by the probate court for the county of Wayne on February 11, 1901, and he duly qualified in said trust. Commissioners on claims were appointed by the probate court on July 22, 1901, and the report of the commissioners was filed on January 24,1902, wherein was allowed a total of $736.50, aside from the commissioners’ fees, aggregating $50. The claims thus allowed were partly for funeral expenses, etc., paid out by Miss Catherine State, sister of deceased, and there was a claim of $600 allowed to Joseph E. State, a brother.

The executor did not obtain property with which to pay the expenses of administration, or the debts thus allowed, and in March, 1902, he filed the bill in this case. It is based upon the provisions of 3 Comp. Laws, § 9363 et seq., which authorize an executor or administrator to reach assets which have been disposed of by a decedent in fraud of creditors. John E. Prentis is a brother of Browse T. Prentis and of George H. Prentis, attorney in Detroit, and Mary Prentis is the wife of Browse T. Prentis. Browse T. Prentis, in his negotiations with State, represented himself, his wife, and his brother John.

Complainant concedes that defendant Keena acted in perfect good faith throughout this transaction, and it appears that Mr. Keena had no knowledge of the principal facts in question. Complainant does not contend that there was actual fraud upon the part of the other defendant, but claims that the deed sought to be set aside was purely voluntary and without consideration, and, therefore, void as to creditors. Defendant Prentis insists that the deed to him was supported by an adequate consideration, and is valid against creditors. This contention presents the ■principal question of fact in the case. The learned trial judge who heard the case found for the complainant upon this question, and we think his conclusion was correct. Mr. Sullivan and Mr. State both being dead, there were no witnesses who had knowledge of the facts in dispute ■except the Prentis family, John E., defendant herein and grantee in the deed attacked, Browse T. Prentis, his brother, and also a claimant against State’s estate, and Mary, his wife.' Browse T. Prentis had been the attorney •and confidential adviser of State during the period of these ■transactions, and drew the trust deed to Keena. He testified that:

“ The main purpose of that deed was to secure his indebtedness to my brother and my wife, which had been, contracted through me.”

Complainant showed By indisputable evidence that on April 24, 1899, State received $1,500 in settlement of certain suits against insurance companies; that on the same day State purchased with this money two certificates of deposit, one for $700 payable to Sullivan and credited to-his account; the other for $688, payable to the order of B. T. Prentis. This last certificate is indorsed by B. T. Prentis and the Union National Bank of Detroit. Mr. B. T. Prentis, who was the only witness sworn for defendant, admitted that he received the money from the Union National Bank. He testified with reference to the $500 loan:

“ Mr. State had no negotiations with my brother in regard to that loan. I got the money from my brother and handed it over to State and took the note.

Q. The note has never been paid ?

“A. Not a cent of it.”

It is clear that the certificate of deposit payable to Sullivan was in discharge of the indebtedness to him secured'by the trust deed and I have no doubt that the certificate for $688 payable to the order of B. T. Prentis was in full settlement of the note of $500 to defendant John F. Prentis. Mr. B. T. Prentis was unable to give any satisfactory explanation of the making out of the certificate to him. He testified that of this insurance money:

“Tom State didn’t get it. He got what I paid him from that draft, and that is all that he ever handled the money, I guess.

“Q. Of course, the discontinuance of those insurance cases was done through you ?

“A. Yes; undoubtedly, it was done through me. That is my signature to that stipulation and discontinuance. I have no recollection of the thing.

“Q. Do I understand you to say that Tom State got that $688 at all ?

“A. I do say that he got every dollar on that except what I retained by an agreement with him for my services in these cases.

“Q, You can’t say the amount ?

“A. I don’t remember. * * *

"Q. Exhibits 1 and 2, being two certificates of deposit, seem to aggregate $1,388. Can you tell us where the balance of the amount received from the insurance companies went ?

"A. No, I cannot.

“Q. $122. Did you get it?

“A. I can’t tell you anything about it. * * * I don’t remember anything about it. Excepting by seeing these two drafts I wouldn’t remember anything about that transaction.

“Q. Do you tell us that of that $688 apart of it went to you and a part of it to State ?

“A. That is my recollection.

"Q. You can’t tell us how much went to you ?

“A. No, sir, I cannot. I know I got my pay at that time for the suits, which was about half of what I ought to have had.

Q. What was that amount that was your charge against State for attending to the insurance matter ? ■

“A. I don’t remember.

“ Q. You didn’t charge him $688 for it ?

“A. No, sir. |

Q. It was more likely $100 ?

“A. More like $100. I think it was more than $100, hut it was nearer $100 than $688. * * *

“ Q. Can you give any reason so far, why. the certificate of deposit you have made out so carefully, B. T. Prentis on the face of it for a large amount like that, with a balance of $122 in there, if you were not to keep that fund, just as Tom Sullivan got his $700 ?

“A. I know I didn’t get that money, Mr. Lightner.

“ Question by the Gourt: You must have got it.

“A. I got it, of course, I didn’t get it to keep. I turned it over to State.

“ Q. You can’t give any explanation why that was made out in that way ?

“A. I suppose that was the balance; I don’t know. I couldn’t give you any explanation. I have forgotten the transaction entirely.”

This transaction, on its face, indicates clearly a satisfaction of the trust deed, and in view of the confidential relations existing between B. T. Prentis and State, his utter failure to explain the transaction, and the fact that State and Sullivan were dead, I think the transaction should be held to be a payment of the note and interest and probably Prentis’ fees in the insurance cases. This conclusion is further strengthened by the fact that on June 10, 1899, State collected $1,500 of the city of Detroit of which he paid $500 to Browse T. Prentis; $500 to George H. Prentis, his attorney in such suit, and retained $500 himself. It would extend this opinion too much to discuss the other clainis of defendant in support of said absolute deed to himself. The best supported of them all is that upon this $500 note, and, having determined that this was paid, I do not think it necessary to set forth in detail the reasons for holding that the deed in question was without consideration and void as to creditors. .1 am also of the opinion that the testimony of Browse T. Prentis was incompetent, the facts being equally within the knowledge of Thomas State, deceased, and without his testimony the weight of the evidence is clearly with complainant. ,

But, whether the deed was without consideration or not, defendant insists that the bill must be dismissed because :

(1) There has been no order that complainant should pay the claims as required by 3 Comp. Laws, § 9404.

(2) There is neither an allegation in the bill nor proof that the creditors applied to the executor to file this bill or made provision for the costs as required by section 9364, 3 Comp. Laws.

(3) The statute authorizing this proceeding relates to property conveyed only and the bill and proofs show that State did not nor could convey, but that he caused the land to be conveyed.

(4) Neither the bill nor the proofs show that the claims existed at the time the alleged fraudulent deed was made, nor that it was made to defraud the then existing creditors of State, nor that the claim existed when the title was in State as required by 3 Comp. Laws, §§ 9363-9365.

(5) Sullivan was a necessary party.

(6) The commissioners did not give notice of their meeting as required by statute, their report of the allowance of claims was a nullity and the claims allowed are not lawful claims against the estate. Even if regularly allowed, the claims would not be binding upon defendant who was not a party to the proceedings, but must be proved to be lawful.

(7) If complainant is entitled to recover, he is not entitled to the relief granted.

The first, second, third, and fourth points may be considered together. The bill in this case is founded upon sections 9363 et seq., 3 Comp. Laws, which clearly authorize the administrator or executor to institute such proceedings when there is a deficiency of assets in his hands, through the allowance of claims which become a charge upon the estate. Beith v. Porter, 119 Mich. 365. Paragraph 4 of the bill of complaint sufficiently alleges a deficiency of assets, the proofs satisfactorily show such deficiency, and neither an order of the probate court nor an application by creditors was required by the section of the statute above quoted. It was held in Beith v. Porter, supra, ^that this statute should be liberally construed to cover a case where the deceased paid the consideration for property and had title made to his wife in fraud of •creditors. ' By parity of reasoning I think the statute covers the present case. The bill as amended averred:

That all of the indebtedness set forth in paragraph 2 herein (except expenses of the funeral and of the last sickness of said Thomas L. State, which formed a small portion of said indebtedness) arose, accrued, and matured prior to the signing of said order, to wit: to November 14, 1900.”'

When the report of the commissioners on claims was offered in evidence, defendant’s counsel made the following objections:

Mr. Swan: To so much of that as is embodied in the report of the commissioners showing the amounts of the claims allowed I object, as not binding upon the defendant Prentis in this case, he not having been a party to it and knowing nothing about it, no opportunity to be represented.

The Court: It will go in any way.

“Mr, Lightner: I think this is the essential part. I will just read the report, the items of claims. The report of the commissioners is in the usual form, allowing to Miss Catherine State, account of Charles N. Flattery, funeral director, $119.15; Father F. L. Wieman, funeral masg, $12; Stanton Clark, attorney’s fees, $5, being a total of $136.50. Also, Joseph E. State, amount claimed, $600, amount of final balance in favor of creditor, $600; commissioners’ fees, $25 each.

Mr. Swan: I have a special objection to so much of-the report as shows money allowed to Catherine State, on the ground that it accrued after the death of Mr. State, and should not have 'been allowed by the commissioners. They are not a proper charge against his estate, so far as this bill is concerned.”

These were the only objections presented, so far as the point now .under consideration is concerned, and are, therefore, the only objections which we consider upon this appeal. Mr. State signed the order for the deed on November 14th, when he was dying, and he actually died on the 17th of the same month. Under such circumstances, I think the allowance of claims by the commissioners not shown upon their face to have accrued after that time is prima facie evidence at least of their existence before that period. The allowance of the claims by the commissioners on claims, who had jurisdiction to pass upon them, in the absence of fraud, was conclusive against the estate and all persons who had an opportunity to be heard. The allowance of the claims created a deficiency of assets and, thereupon, the statute authorized the executor to institute proceedings. I think it was not the intention of the statute to require the executor, in the first instance, to prove these claims in proceedings like the present other than by the report of the commissioners or the judgment of the circuit court on appeal. While the allowance by the commissioners was not conclusive upon defendant (Seymour v. Wallace, 121 Mich. 402), the burden was upon him to show its invalidity, and having made no attempt to impeach their validity hy evidence, the claims must be considered valid.

The bill of complaint avers:

“ (2) That, as appears from the files and records of said probate court for Wayne county, on the 22d day of July, 1901, Amadeus T. Moran and Harry Rickel, both of Detroit, Wayne county, Michigan, were appointed commissioners on claims in the said estate of Thomas L. State, deceased, by the aforesaid probate court of Wayne county, and having duly qualified and given notice of their meetings, according to the statute in such case made and provided, did allow lawful and liquidated debts as claims against the said estate to the amount of $786.50, as appears from the report of said commissioners filed in said probate court on the 24th day of January, 1902.”

Paragraph 2 of the answer is as follows:

“Upon information and belief, he admits the matters set forth in the first, second and third paragraphs of said bill, except that he says that the claims allowed by said commissioners are not just and fair, and should not have been allowed against said estate.

“ The report of the commissioners on claims referred to in said bill now on file in the probate court for said county, .shows that the only claimants or creditors are Joseph E. State and Catherine State, a brother and sister of said deceased, and defendant says, upon information and belief, ■that said deceased, at the time of his death, was not indebted to either of said persons in the amount allowed, or in any amount whatever.

“The sum of $131.50 is allowed to Catherine State for funeral expenses of said deceased, and $5 for ‘ attorney fees,’ total $136.50, supposed to have been paid by said Catherine; and this defendant shows upon information and belief, that no part of said amount was a charge against her, said Catherine, and that if she paid the same, it was a voluntary payment, and should not have been so allowed to her. Further, that the same was not a claim .against said deceased before or at the time of his death, and furnishes no ground for the action of said executor in filing this bill.

“This defendant is further informed, and believes that ibis complainant, as executor as aforesaid, did not contest the allowance of said claims, and made no investigation or examination of the same, but suffered them to be allowed by the commissioners, if he did not consent to or procure their allowance, and he believes that said claims ought not to have been allowed, and would not have been if the said executor had properly contested them in the probate court.”

The answer having admitted that the commissioners, gave notice of their meetings, “according to the statute in such case made and provided,” it was unnecessary to prove such fact. It is true that it appeared by the testimony of the executor that he had never been served with notice of the meetings, but, as the qrder of the probate' court is not set forth in the record, we cannot say that it contained any such requirement, and the defense is not available under the answer. Reed v. Jourdan, 109 Mich. 128. Mr. Sullivan, having been paid in full and having parted with his interest, was not a necessary or proper party.

The decree provides that the deed—

“Be and the same is hereby set aside and vacated and declared null and void and of no effect whatever, as against the complainant.

“2. That the defendant, John F. Prentis, deliver up the said deed to the register of this court, to be canceled and that the defendant, John F. Prentis, execute and deliver to the complainant herein, as executor of the estate' of Thomas L. State, deceased, a good and sufficient deed of the said above described real estate, within twenty (20) days from the date hereof, and that in default of such conveyance, a certified copy of this decree may be recorded with the register of deeds for the county of Wayne, and shall stand for and have the same effect as if such conveyance were made.

“3. That the defendant, James T. Eeena, trustee, execute and deliver to the complainant, as executor of the last will and testament of Thomas L. State, deceased, a good and sufficient deed of the premises hereinbefore described, and that upon recording said deed, or a certified copy of this decree, the title to said premises is hereby decreed to be vested in said complainant as executor, as aforesaid.

“4. That the complainant, as executor, as aforesaid, shall proceed to reduce said land to money by the sale thereof, in the same manner as if the deceased had died seised thereof, upon obtaining a license therefor from the probate court, in accordance with the statute in such case made and provided; and that the complainant, as executor, as aforesaid, account to the probate court for the receipts from such sale.”

This decree was too broad, and will be modified, so as to provide for payment by defendant Prentis of the claims allowed and the costs of the proceedings in the probate and circuit courts within 90 days from the entry of decree herein. See Reed .v. Jourdan, supra. Upon failure to so pay such claims and costs, the land in question may be sold, as provided by the statute. Neither party will recover costs in this court.

Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred. .


author: Montgomery, J.

text:
    REICHERT v. REICHERT.
    Wills — Capacity of Testator — Undue Influence — Evidence.
    Evidence in a will contest examined, and held, to show that testator had no insane delusions as to the attitude of disinherited heirs toward him and that no undue influence was used to induce the mailing of the will.
    Error to Washteúaw; Kinne, J.
    Submitted April 5, 1906.
    (Docket No. 16.)
    Decided May 24, 1906.
    Jacob J. Reichert presented for probate the last will and testament of John George Reichert, deceased. The will was allowed in the probate court, and Julius H. Reichert and another appealed to the circuit. There was judgment for proponent, and contestants bring error.
    Affirmed.

      Frank E. Jones and Murray & Storm, for appellants.

      Cavanaugh & Wedemeyer, for appellee.
   Montgomery, J.

This is a contest oyer the probate of the last will and testament of John George Reichert, deceased. The contestants are the son and daughter of decedent. The will was executed January 4, 1904, and, after providing for the payment of funeral expenses and the erection of a monument at a cost of $500, contains the following clause:

“ Fourth. My son, Julius H. Reichert, and my daughter, Hermina B. Reichert, having chosen the wrong instead of the right, and having refused to visit or associate with me, I give and bequeath to each of them the sum of one dollar only.”

All the balance of the estate is bequeathed to the nieces and nephews of the testator, share and share alike. The contest is made on the two grounds of mental incompetency and undue influence. It is claimed that the assertion in the fourth clause in the will is so contrary to the fact as to indicate that the iestator was laboring under an insane delusion. The circuit judge was of the opinion that there was no testimony in the case tending to show the existence of an insane delusion, and so instructed the jury.^

It is an admitted fact that since 1899 the decedent and his wife had lived apart, and that during all this time the two children, who are now the contestants, had lived with their mother. The mother in 1899 filed a bill for divorce. The case found its way into this court, and in October, 1900, the decree denying a divorce was affirmed. 184 Mich. 694. The p&rties, however, continued to live apart. The decedent desired- to reunite his family and made repeated efforts to do so, but his wife persistently refused to return to him. The children remained with her. When all efforts at reconciliation failed, decedent finally, in November, 1902, filed a bill for divorce on the ground of desertion, and a decree was granted January 28, 1903. In this decree Mrs. Reichert was given $2,000 alimony in lieu of dower and homestead rights, and in payment for the care, support, and education of the minor child, Hermina. It was provided that Mr. Reichert should be permitted to visit Hermina, and that Mrs. Reichert should afford friendly opportunity therefor. The evidence shows that the decedent in April, 1902, made a will in which he bequeathed a substantial share of his estate to Hermina; but in this will the larger portion of the bequest was made dependent upon Hermina visiting and attending upon him in his last sickness; This was followed by the divorce. From that time on decedent saw his daughter but once or twice, and these interviews were brought about by effort of his. Her own testimony shows that she did not feel right toward her father. At one time the father called at the school Hermina was attending to see her, and she declined to see him. The evidence as to the feeling of Julius toward his father is quite as conclusive.

The question is, not whether the motives of testator were such as to be in all respects approved, but rather whether they were the motives of a sane man. There is not the slightest ground for saying that the testator was under any delusion as to the attitude of his children toward him. The question of whether that attitude justified him in cutting them off with a nominal legacy was a question which he, within his rights as owner of the estate, had the power and legal right to determine. Spencer v. Terry’s Estate, 133 Mich. 39. Without reciting at length, the testimony, which is claimed to show that undue influence is exerted, it will suffice to say that, giving the broadest construction to such testimony, it fails to ■show any such coercion or fraud as to amount to undue influence in the legal sense of that term. The circuit judge was quite right in directing a verdict in favor of the probate of the will.

Judgment affirmed.

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


text:
    MILLER v. McLAUGHLIN. SAME v. WALKER. APPEAL OF HUBBARD.
    Mortgages — Foreclosure—Deficiency—Petition—Substitute» Service — Sufficiency.
    Substituted service of a petition for a deficiency decree on. foreclosure of a mortgage is sufficient as against a defendant personally served with a subpoena in the foreclosure suit.
    Appeal from Wayne; Donovan, J.
    Submitted April 6, 1906.
    (Docket No. 21.)
    Decided May 24, 1906.
    Bills by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard,, and others, to foreclose certain mortgage securities, and by the same complainant against Bryant Walker, trustee, Louise M. Jebb, and the Detroit Savings Bank to enforce a trust. The suits having been consolidated and a decree entered for complainant, defendant Hubbard appeals.
    Affirmed.
    These suits were brought to foreclose certain real estate mortgage and collateral securities, and resulted in a decree for foreclosure, by which this appellant, Collins B. Hubbard, with other defendants, was decreed to be personally liable to pay any deficiency that might accrue therein. A sale was had, resulting in a deficiency of nearly $50,000. Hubbard was personally served with subpoena in the foreclosure proceedings, and appeared therein by solicitor, and made a stubborn defense, including several appeals to this court.
    Petition for execution for deficiency was filed, and Hubbard having taken up his residence in New York, complainant filed a petition asking for an order for substituted service upon him of the petition for deficiency and notice of hearing of the same; thereupon it was ordered, “that service of the petition of said Sidney T. Miller, trustee, for an execution for deficiency against the said defendant Collins B. Hubbard, heretofore filed in this court in the above-entitled cause, consolidated, and notice of hearing and presentation thereof be had by serving a copy thereof upon Willis G. Clarke, Esq., who was solicitor for said defendant Collins B. Hubbard in the above-entitled cause, consolidated, and by depositing in the United States mail, with postage thereon fully prepaid, a copy of said petition and notice of hearing thereof addressed to said Collins B. Hubbard at 10 Wall Street, New York, New York, and thqt said service of a copy of the said petition upon said Willis G. Clarke, Esq., and the depositing of a copy of said petition in the United States mail addressed to Collins B. Hubbard, as above set forth, shall be made four days before the presentation and hearing of said petition for execution for deficiency, to this court.”
    Service was made in accordance with said order. Hubbard appeared specially and answered the petition for deficiency, claiming that the substituted service aforesaid was not correct chancery practice and was not due process of law within the meaning of the Constitutions of Michigan and the United States. Decree for deficiency was entered, whereupon this appeal was taken.

      Miller, Smith, Alexander & Paddock, for complainant.

      Willis 6r. Clark, for appellant.
   Montgomery, J.

In this case we are asking to overrule the well-considered case of Field v. Saginaw Circuit Judge, 124 Mich. 68. _ This we decline to do. The order appealed from is affirmed, with costs.

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


author: Moore, J.

text:
    BOARD OF SUPERVISORS OF GRAND TRAVERSE COUNTY v. ALLYN.
    Counties — Surveyors — Records — Depositories — Office of Register of Deeds.
    The board of supervisors of a county may properly designate the vault in the office of the register of deeds as the place where the records of county surveyor are to be kept when not in use by the surveyor, as provided by Act No. 79, Pub. Acts 1905, and are not required to provide such a vault for the surveyor’s exclusive use.
    Certiorari to Grand Traverse; Mayne, J.
    Submitted April 10, 1906.
    (Calendar No. 21,535.)
    Decided May 24, 1906.
    Mandamus by the board of supervisors of Grand Traverse county to compel Ernest H. Allyn, county surveyor, to keep the field notes and records of his office in a depository under Act No. 79, Pub. Acts 1905. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      George H. Cross, Prosecuting Attbrney, for relator.

      John W. Patehin, for respondent.
   Moore, J.

Act No. 79, Pub. Acts 1905, amended section 2622, 1 Comp. Laws, by adding thereto the following :

“ The county surveyor shall keep the field notes and other county surveyor’s records in a fireproof vault, in an,’ office at the county seat, to be designated by the board of supervisors as a depository for the same, excepting that this shall not apply to the fieldbooks which are required to be used in the field by the surveyor in making his surveys, during the time when such books are thus being used. The field notes and records required by this act shall be accessible to the public at any time, subject to such regulations as may be provided by the board of supervisors. The county surveyor and his deputies shall keep the records of their surveys required by this act written up in full for each month within seven days after the close of the month.”

Acting under its provisions the board of supervisors of Grand Traverse county, on the 13th of October, 1905, adopted the following resolutions:

“Whereas, by Act No. 79 of the Public Acts of 1905, which refers to the safekeeping of the books and records of the county surveyor, it becomes the duty of this board to designate a depository for the safekeeping of said books and records: It is therefore resolved that the register of deeds’vault is hereby designated as such depository.”

The respondent declined to keep the field notes and other records of his office in the depository designated in the resolutions so adopted. The relator sued Out a writ of mandamus in the circuit court to .compel the county sur-' veyor to keep the field notes and other records of his office in such depository. A hearing was had and the judge issued an order, the material parts of which read:

“ We, therefore, being willing that due and speedy justice should be done the said board of supervisors in the premises, do command and firmly enjoin you that immediately upon receipt of this, ourwrit, you do, without delay, deposit the field notes and other county surveyor’s records ■of the said county of Grand Traverse in the fireproof vault in the register of deeds’ office in said county of Grand Traverse, which has been so designated as a depository for the same as aforesaid, and that you keep such records in such depository, except during business hours when said records are by law required to be kept open to the inspection of the public, and also excepting the fieldbooks which are required to be used in the field by the county surveyor in making his surveys, during the time when such books are thus being used.”

The respondent seeks to review this order by certiorari.

It is the claim of the respondent (we quote from the brief of counsel):

“1. That the circuit court had no jurisdiction to render judgment against respondent because no provision was made for the access to or inspection of the books and records of the county surveyor’s office by the public as provided by law.

“2. That by the final order, the books and records of the surveyor’s office were removed out of his custody and control and required to be kept in the register of deeds’ office without giving any facilities to the surveyor for keeping his books open in his office for the inspection of the public as provided by the statute.

“3. That the county surveyor is under bonds for the custody and safekeeping of these books, and that by the final order they are taken out of his possession and custody without any security to the surveyor that the books shall be properly cared for.

“4. That there is no provision made by the board by which the surveyor himself can have access to the books at times adequate and necessary for the carrying on of his business.

“5. That it is shown by the undisputed testimony in the case that the facilities that could be given by the register of deeds’ office as the same is carried on for the use of said books are so limited that it will greatly cripple the said surveyor in carrying on' the business of his office, and thereby greatly inconvenience the public who do business through his office.

• “6. That the plain provisions of the statute that the board of supervisors should provide a fireproof vault for the use of the respondent and successors, to be under his care and control in an office at the 'county seat, was entirely ignored by the judgment of said court.”

We think the county surveyor and his counsel magnify the difficulties of the situation. The intention of the legislature in passing the amendment was to seek a place of safety for the field notes and records pertaining to the office of county surveyor, when they were not in use by him. There can be no doubt of the right of the legislature to enact legislation of this character, nor of the board of supervisors to make the provision required by the statute. The order of the circuit judge is so broad as not to interfere with the custody of the records and field notes during the hours when they are by law required to be kept open to the inspection of the public, nor when they are needed by the county surveyor in the pursuit of his official ■duties.

We decline to interfere with the action of the circuit judge.

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


text:
    LEAHY v. WAYNE CIRCUIT JUDGE.
    Judgment — By Default — What Constitutes.
    In its strict sense a judgment by default is rendered when the previous default of defendant has obviated the necessity of proof; and a judgment entered for plaintiff in ejectment, after an issue of fact is joined between the parties and the case regularly set and called for trial, necessitating proof of plaintiff’s title, which is made, is not a judgment by default, though no one appears for defendant at the trial.
    Mandamus by Charles Leahy and Susan Leahy to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order denying a motion to correct a journal entry.
    Submitted April 17, 1906.
    (Calendar No. 21,600.)
    Writ denied May 24, 1906.

      Nichols & Durfee (James G. McHenry, of counsel), for relators.

      James Swan, for respondent.
   Montgomery, J.

, The relators were defendants in an action of ejectment instituted in the Wayne circuit court. The plaintiff was Julia B. Warren. On the 5th day of February, 1905, the default of defendants in the action (relators) was entered. On the 25th of February, 1905, this default was, on motion of defendants, set aside on condition that a plea be entered forthwith, and the cause stand for trial at plaintiff’s election. The case was thereupon assigned to Judge Rohnert’s division for trial and. regularly reached on said 25th day of February. A jury was impaneled, and testimony taken on behalf of the plaintiff. A verdict was rendered for the plaintiff. No one appeared before Judge Rohnert on defendants’ behalf. Four days later judgment was entered on the verdict. The form of journal entry of the proceedings of the 25th of February was that employed in ordinary trials and shows that both parties were in court by their respective attorneys. On March 1, 1905, defendants entered a motion reading as follows:

“Now come said defendants pursuant’ to the statute, and having paid the clerk of said court all the costs and damages recovered by said plaintiff by the judgment rendered in said cause on the 25th day of February, A. D. 1905, make application for an order vacating said judgment and granting a new trial of said cause.”

The motion was promptly granted. Another trial was had resulting in verdict and judgment for the plaintiff. Thereupon the defendants (relators) moved the court to correct the journal entry of February 25, 1905, so as to make the same show that defendants did not appear on the trial. This motion was denied, and the- relators ask for mandamus directing the correction of the journal entry.

As the first judgment is no longer in force it is obvious that it would be an idle proceeding to change its form unless the defendants’ rights would appear to be greater if the fact of their nonappearance was shown. This was evidently the view of the circuit judge, and he was also of the opinion that the recital in the journal entry did no harm to defendants. It is not claimed by defendants that the judgment was not properly taken. That is to say, there is no showing that plaintiff proceeded irregularly ; but the contention is that if the record were made .to show that defendants did not appear the judgment would in legal effect be a judgment by default. It is further insisted that as a result of this the defendants would be entitled to treat the judgment entered on the trial of the case after the vacation of the judgment of March 1st as the first judgment in the case and subject to vacation on motion on terms under section 10981, 3 Comp. Laws. At least we gather that this is the ultimate end aimed at, although in relators’ brief their position is stated as follows:

“The verdict rendered in said cause on February 25, 1905, and the judgment rendered thereon having been taken by default, relators are entitled to have the record therein corrected to correspond with the facts so as to enable them to make, application to have said judgment set aside under the section of the statute providing for the vacating of default judgments.” [3 Comp. Laws, § 10982.]

This section provides that a judgment in ejectment rendered by default shall be conclusive after three years; but that within five years after the rendering of such judgment on application of defendant, his heirs, executors, administrators or assigns the court may vacate such judgment and grant a new trial if such court is satisfied that justice will be thereby promoted and the rights of the parties more satisfactorily ascertained and established.

It is manifest that defendants did not, by their motion of March 1, 1905, proceed under this section, as no showing was made or attempted that justice' would be promoted by a new trial of the cause. On the contrary, with full knowledge of the facts, defendants saw fit to apply for a new trial, assuming that they were entitled to it as a matter of right which they only were if section 10981 controlled. Having elected to so treat this judgment, it would be an extraordinary proceeding to vacate the order vacating the judgment to enable defendants to attribute to the judgment a different character, and move to set it aside on a new and different showing, and this after the order vacating the judgment had been acted upon, and a new trial had. It is probably not deemed essential by defendants’ counsel tha,t a new order of vacation should be made. It'is doubtless conceived that if the judgment of February 25th is made to take the form of a judgment by default it would result that the motion for a new trial would be treated as made under section 10982, and not tinder section 10981. We do not think this would follow. The defendants have, by their action, in making their motion and taking a new trial thereunder, elected as definitely as it were possible to do to treat this judgment as a judgment on trial. We are of the opinion that in so treating this judgment, they made no mistake. An issue of fact was joined between the parties, the case was regularly set •and called for trial. We do not understand that a judgment by default properly speaking is entered in such circumstances. It is incumbent upon the plaintiff, in such a case to make proof of his title. Such was the practice pursued in this case. Judgment was not pronounced upon defendants’ default, but upon the case made by •plaintiff’s proofs. The term “default” has been often loosely used. In its strict sense, however, a judgment, by default is rendered when the previous default of defendant has obviated the necessity of proof. A construction *of section 10982 which would admit of a defendant absenting himself from the trial and by so doing extend his time for moving for a new trial two years beyond the limit' fixed by section 10981, on the plea that a judgment in such case is a judgment by default, should not be adopted unless demanded by the language employed. We do not think it is required. In Anderson’s Law Dictionary, tit. “ Default,” it is said:

“When a defendant omits to plead within the time allowed for that purpose or fails to appear at the trial he ‘ makes default ’ and the judgment entered in the former case is a judgment by default.”

The same statement is found in Burrill.

It is true as contended by relators’ counsel that a default may occur after appearance. The default may consist in failing to plead. But judgment by default cannot be taken after issue joined.

In Strine v. Kaufman, 12 Neb. 423, a statute which gave the right to a defendant to have a judgment rendered against him in his absence set aside on certain terms was construed. It was held first that absence meant the same thing as default, and, second, that a defendant who had appeared and answered was not in default within the meaning of the statute. It will be seen that the case goes much further than we do in holding that judgment by default means a judgment on default for want of appearance or plea.

The supreme court of Kansas, in Covart v. Haskins, 39 Kan. 574, decline to accept the reasoning by which the Nebraska court reaches the conclusion that absence means the same thing as a failure to appear at any time, but also holds that default signifies that there has not been an appearance (answer) at any stage. See, also, Page v. Sutton, 29 Ark. 304; Carlon’s Adm’r v. Ruffner, 12 W. Va., at page 309. Cases which rest upon the peculiar phraseology of statutes differing essentially from ours cannot control. The relators have lost no substantial right by the action of the circuit judge.

The writ is denied.

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


author: Grant, J.

text:
    TIEDEMANN v. KROLL.
    Execution — Bill in Aid — Quieting Title — Limitation—Statutes —Application.
    Where an execution creditor knows at the time of the sale that the legal title to the land levied upon is not in the defendant, it is his duty, under section 9167, 3 Oomp. Laws, to institute proceedings in aid of his execution within one year; failing in which he is barred of his remedy.
    Appeal from Wayne; Hosmer, J.
    Submitted April 4, 1906.
    (Docket No. 4.)
    Decided May 24, 1906.
    Bill by Charles Tiedemann against Charles Kroll, John Kroll, and the Stanton Farm Company, Limited, in aid of an execution, and for the specific performance of a land contract. Defendant John Kroll filed an answer in the nature of a cross-bill to set aside a sheriff’s deed. From a decree dismissing the bill and granting the prayer of the cross-bill, complainant appeals. Affirmed.
    Complainant recovered a verdict and judgment before a justice of the peace on April 2, 1896, against defendant, Charles Kroll, for $227.25. Charles was then the owner of lot 532 in fee simple, which was occupied as a homestead. June 4, 1883, he made a contract for the purchase of lot 533 from the then owner who subsequently sold to the defendant, Stanton Farm Company, Limited. On August 1, 1896, complainant took a transcript of said judgment to the Wayne circuit court, and on August 4th of the same year levied on lots 532 and 533. Said lots were sold July 2, 1898, and bid in by the complainant. No redemption was made, and the sheriff issued a deed to the complainant February 18, 1901. On this deed complainant claims that he is the legal assignee of Charles Kroll and is entitled to pay the balance due upon the contract and receiv^ therefor a deed. On March 23, 1896, defendant Charles assigned and transferred this contract for the expressed consideration of $900 to the defendant John. The bill alleges that such transfer was in fraud of the creditors of defendant Charles, and prays that the said Charles may be decreed to assign, transfer, and deliver up to complainant said land contract, and that the defendant, the Stanton Farm Company, Limited, may be decreed to carry out the terms of said contract with the complainant, he being willing to pay what is due upon said contract. The court found that the complainant would be entitled to relief, were it not for the statute (3 ■Comp. Laws, § 9167) which provides:
    “ That in case, of a levy upon the equitable interest of a judgment debtor, the judgment creditor, may before sale, institute proceedings in aid of said execution, to ascertain and determihe the rights and equities of said judgment debtor, in the premises so levied upon, and that in case of a sale of said premises, without having ascertained and determined the interest of said judgment debtor in the premises so levied upon and sold, he shall within one year institute proceedings to ascertain and determine the same, and to settle the rights of the parties in interest therein.”'
    Decree was entered dismissing the complainant’s bill.

      William Look (Charles T. Wilkins, of counsel), for complainant.

      Charles JR. JRobertson, for defendants Kroll.
   Grant, J.

(after stating the facts). It appears conceded that as to lot 532 the title to which was in Charlea Kroll, the decree is correct, as it was his homestead. Complainant knew at the time of the sale that the title to lot 533 was not in defendant Charles Kroll. The record title at that time was in the defendant Stanton Farm Company, Limited. It was clearly the duty of complainant to proceed within a year after the sale. Daniel v. Palmer, 124 Mich. 335; Kunze v. Solomon, 126 Mich. 290, and authorities there cited.

Decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ.„ concurred.


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    SANFORD v. MILLIKIN.
    1. Replevin — Evidence—Title oe Parties.
    Where, in an action of replevin, it appears that the property was taken by defendant from the actual, exclusive, and undisputed possession of plaintiff’s agent, evidence that the plaintiff is not the owner is not admissible, in the absence of evidence of a superior title in the defendant.
    2. Evidence — Presumption—Continuance of Condition.
    Evidence that property was placed in the possession of plaintiff’s agent for sale is sufficient to show that the possession continued at the time it was taken by defendant; the condition, once shown to exist, being presumed to continue until the contrary is proved.
    3. Trial — Reception of Evidence — Offer of Proof.
    Where defendant in replevin offers proof that the plaintiff is not the owner of the property in question, the trial court has a right to assume that he is stating all he intends to prove* and that he does not intend to prove a title in himself.
    Error to Tuscola; Beach, J.
    Submitted April 13, 1906.
    (Docket No. 78.)
    Decided May 24, 1906.
    Replevin by Emma Sanford against Andrew Millikin. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Pulver & Smith, for appellant.

      Brooker & Gorkins, for appellee.
   Carpenter, C. J.

Plaintiff brought this action of replevin to recover from defendant the possession of a buggy. Her testimony tended to prove her ownership of the buggy; that by her direction the buggy was left with one Wes. Baker with instructions to sell the same; that defendant took the buggy (but under what claim the record does not show) and refused to deliver it to plaintiff when she demanded its possession. The trial court refused to permit defendant to prove that “Mrs. Sanford (plaintiff) is not the owner of this buggy, was not originally the owner of it, did not purchase it in the first instance and never was the owner of the buggy, and that her husband was the owner of the buggy,” and directed a verdict in plaintiff’s favor.

Defendant contends that the judgment entered upon said verdict should be reversed' because the court erred in ex-eluding the testimony tending to prove that the buggy was owned by plaintiff’s husband. Tb- entitle a plaintiff to recover in an action of replevin, he must establish his right to the possession of the property replevined. This he may do by proving that he was in actual and undisputed possession when defendant took the property. If he had no such possession, he must prove title. ..If he bases his right to recover upon proof of title; defendant may defeat his recovery by proving title in a third person. Nicholson v. Dyer, 45 Mich. 610; Upham v. Caldwell, 100 Mich. 264. If, however, the property was taken from the actual and undisputed possession of plaintiff, defendant cannot defeat recovery by proving title in a third person. He must in that case prove that he himself has a title superior "to that of the plaintiff. Rose v. Eaton, 77 Mich. 255; Conely v. Dudley, 111 Mich. 122; Van Baalen v. Dean, 27 Mich. 106.

Since the possession of her agent may be treated as her possession, the buggy while it was in the custody of Baker was in the possession of plaintiff. It may be inferred, too, that that possession was actual, exclusive, and undisputed. Defendant contends that there is no testimony tending to prove that this possession continued at the time he took the buggy. This testimony is supplied by the presumption that a condition once shown to exist is presumed to continue until the contrary is proved.

Defendant also contends that it may not be assumed that he would not have proved a title in himself superior to that of plaintiff had he been permitted to introduce the excluded testimony. The trial court had a right to assume that defendant in stating what he intended to prove, stated all he intended to prove. It was therefore proper to assume that he did not intend to prove a title in himself superior to that of plaintiff.

We think the trial court did not err in excluding the proffered testimony, and that the judgment should be affirmed.

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


text:
    J. E. GREILICK CO. v. ROGERS.
    1. Appeal and Error — Briefs — Failure of Appellee to Answer Claim of E!rror.
    It is the duty of this court to answer a claim of error though the answer is not suggested by counsel for the appellee.
    3. Equity — Rules—Pleading—Failure to Answer Allegations of Bill.
    Under Chancery Rule 10<2, failure of defendant, in a suit to enforce a mechanics’ lien, to answer an allegation of the bill that personal service of the lien statement was not made upon him because of his absence from the county, admits the truth of such allegation and obviates the necessity of proving it.
    3. Mechanics’ Liens — Statement of Lien — Service—Agent of Owner.
    Service of a mechanics’ lien statement on the wife of the owner residing on the premises, he being absent, and she apparently having the authority usually exercised by wives over homestead premises in the absence of their husbands, is service on the owner’s “agent having in charge such premises ” within the meaning of section 10715, 3 Comp. Laws.
    4. Husband and Wife — Agency of Wife — Evidence.
    On the issue whether the wife of defendant was his agent in charge of the homestead during his absence, evidence examined, and held, to support a finding that she was, notwithstanding an affliction that prevented her speaking in words, and the testimony of the husband that a certain employe “generally supervises everything for me when I am not there.”
    5. Mechanics’ Liens —Lien of Subcontractor — Payments to-Contractor — Allowance. "
    Payments to the principal contractor, made without requiring of him the sworn statement required by section 10713, 3 Comp. Laws, which are not distributed pro rata among the subcontractors, laborers, and materialmen, cannot be allowed in his favor as against the lien of a materialman.
    6. Same — Failure of Contractor to Perform — Recoupment of Damages.
    The owner cannot complain that he is not allowed to recoup his damages for the contractor’s failure to perform, where, disallowing unauthorized payments to the contractor, more than enough remains to pay his damages and the claim, allowed the lien claimant.-
    Appeal from Grand Traverse; Mayne, J.
    Submitted. April 18, 1906.
    (Docket No. 85.)
    Decided May 24, 1906.
    ■ Bill by the J. E. Greilick Company against George Mills Rogers and Charles Schumacher to enforce a mechanic’s lien. From a decree for complainant, defendant. Rogers appeals.
    Affirmed.

      Coveil & Cross, for complainant.

      Parm C. Gilbert, for appellant.
   Carpenter, C. J.

This is a proceeding in chancery under the mechanic’s lien law of this State brought by complainant to enforce a lien against the premises of defendant Rogers for material furnished and used in the erection of buildings thereon. Defendant Schumacher was the principal contractor. Complainant obtained a decree in the lower court. Defendant Rogers appeals, and asks us to reverse that decree for several reasons.

1. The statement of lien was not served on appellant personally, but was served on his wife — whom complainant claims was his agent in charge of the premises — the ninth day after the same was filed, and no effort was thereafter made to serve the same upon appellant. Appellant contends that this service was insufficient for two reasons:

(a) He contends that the statute (section 10715, 3 Comp. Laws), properly construed, authorizes service on the agent when, and only when, the owner cannot be found within the county at any time during the 10 days next after the filing of the statement of lien, and that the service in question is insufficient because complainant did not prove that the owner could not be so found. Complainant answers that he did not prove appellant’s absence because it understood at the hearing that that fact was conceded. We do not think that fact was conceded at the hearing. We do think, however, a complete answer to defendant’s contention is to be found in the condition of the pleadings. We have felt reluctant to make this answer, because it may be claimed that it is not suggested in the brief of complainant’s counsel. Their failure to suggest it does not, however, relieve us from the duty of making it. It is our duty to make the proper answer to a claim of error, even though that answer is not suggested by counsel. If we do not perform that duty, we would decide that to be erroneous which is not erroneous. We think it our duty, therefore, to answer the contention under consideration by saying that the pleadings relieved complainant from all obligation to prove that personal service could not be made upon appellant during the 10 days next after the filing of the statement of lien. Complainant’s bill avers “that the said George Mills Rogers could not be found within said county * * * at any time within the 10 days next after the filing of said statement of lien * * * and that personal service of a copy of said lien could not be made on said George Mills Rogers within 10 days after the filing thereof because of the absence of said George Mills Rogers from said county.” Appellant, though he answered complainant’s bill, failed to answer this averment. By this failure to answer, appellant admitted the averment to be true. Chancery Rule 10, subd. d, reads:

“And every material allegation in the bill to which the defendant shall not make answer shall be taken as admitted.”

(&) Appellant also contends that his wife was not “his agent having in charge such premises,” within the meaning of said section 10715, 3 Comp. Laws. At the time said service was made, appellant was absent from, and his wife present in, his residence situated upon said premises. She was afflicted with aphasia, which deprived her of all ability to communicate her thoughts by words, but she was an unusually strong woman, and her mind was perfectly clear. Appellant never expressly authorized her to act as his agent. As a matter of fact, she, owing to her affliction, did not attempt to control the premises, and asserted little authority in the management of household affairs. Appellant had in his employ a Mr. Veit, who, as he testifies, “generally supervises everything for me when I am not here.” Mr. Veit testifies that in appellant’s absence nobody gave him directions, .but that “ whatever she [Mrs. Rogers] tells me to do about the' place when Mr. Rogers is not there goes, [but] she does not have anything to say about the general conduct of matters there outside of her own personal comfort.” It may be inferred from this testimony that appellant never expressly delegated to his wife any authority to act as his agent; that he never expressly committed to his wife authority to control the homestead premises in his absence; and that she never exercised such authority. The intention of a husband to commit the charge of the homestead premises •to his wife when he leaves her at home and goes away for a temporary absence, though not expressed, may generally, if not always, be inferred. I think that intention ■ should be inferred in this case. I think that appellant intended that the authority of his wife to control the homestead premises should, if asserted, be recognized, and that he intended that his employés should understand, as they did understand, that, in his absence, whatever orders she gave should be obeyed. It is to be inferred, then, that appellant intended to give his wife full authority to control the premises in his absence. Though she never exercised this authority, she nevertheless had it. This made appellant’s wife his agent during his absence. It follows that the statement of lien was properly served.

2. Appellant insists that the materials for which complainant claims a lien were not used for the erection of the buildings upon his premises. We answer this by saying, that the testimony convinces us that they were so used.

3. Appellant contends that the decree appealed from denies his right to recoup damages by reason of the failure of the principal contractor to perform his contract. Defendant assumes that he has been denied this right because if he is credited with these damages and with his payments to the principal contractor, his indebtedness is less than the amount decreed against him. In other words, appellant’s claim that his right to recoupment was denied rests upon the assumption that he is entitled to credit for the payments made to the principal contractor. This assumption is unwarranted. It is to be inferred "from the record that before he made these payments appellant did not require the principal contractor to furnish the sworn statement specified in section 10713, 3 Comp. Laws, and that the payments themselves were not distributed pro rata among the subcontractors, laborers, and material-men. Under these circumstances, appellant was not entitled to credit for these payments. See Fairbairn v. Moody, 116 Mich. 61; Smalley v. Gearing, 121 Mich. 190; Hannah & Lay Mercantile Co. v. Hartzell, 125 Mich. 177. If we deny appellant credit for such payments, as we must, it cannot be said that he has been denied the right to recoup damages.

Decree affirmed, with costs.

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