text:
    FINLEY v. WIDNER.

    Appeal — Denial oe New Trial — Review.
    To present a case for review under Act No. 134, empowering the Supreme Court to review orders overruling motions for new trial, a statement of the reasons given by the circuit judge for his ruling must be incorporated in the bill of exceptions. Pub. Acts 1893,
    Error to Alpena; Kelley, J.
    Submitted April 5, 1898.
    Decided May 6, 1898.
    Case by William Finley against John A. Widner for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dafoe & Gust in, for appellant.

      J. D. Turnbull, for appellee.

      Rehearing denied June 28, 1898.

   Long, J.

This case was in this court at the January term, 1897, and the judgment reversed, and cause remanded for another trial. 112 Mich. 230. The cause has again been tried, resulting in verdict arid judgment in favor of plaintiff for $450. Defendant brings error. It is an action of slander, brought upon certain words spoken by'defendant of and concerning the plaintiff. The facts are stated in the former opinion, and the cause has been tried in accordance with the rules laid down in that opinion.

After the trial and entry of judgment, the defendant moved for a new trial. This was refused, and we think there is nothing in the record calling for discussion except this motion. We have carefully examined the other questions, and find no error. It is unnecessary to set out the grounds for a new trial, or what the affidavits upon which the motion is based purport to show, as we find, upon an examination of the record, that the court below gave no reasons for the denial of the motion. Act No. 134, Pub. Acts 1893, gives this, court power to review orders overruling motions for new trial. Under the act these proceedings are to be incorporated into the bill of exceptions, “including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.” Here no reasons were given by the circuit judge, and consequently no exceptions could be taken. There is, therefore, nothing in the record relating to the motion for new trial for this court to review. This construction was given to this statute in McRae v. Garth Lumber Co., 103 Mich. 488, and has since been followed.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    MERO v. BUTTON.
    Justices of the Peace — Certiorari:—Affidavit of Account-Partnership — Evidence.
    Where an affidavit of account, which stated that between specified days plaintiff worked for defendants in their mine under an agreement with them through their foreman, was received in justice’s court without objection, and was treated by the justice as evidence upon which to base a finding that defendants were copartners, the finding was properly sustained on certiorari.

    Error to Gogebic; Haire, J.
    Submitted April 5, 1898.
    Decided May 6, 1898.

      Assumpsit by Clarence Mero against Charles F. Button and Otto Olson, impleaded with James George, upon an account for work and labor. Plaintiff had judgment in justice’s court, which was affirmed in the circuit on certiorari. Defendants bring error.
    Affirmed.

      Button & Norris, for appellants.

      Buck & Waples, for appellee.
   Long, J.

Plaintiff brought suit in justice’s court against defendants by summons, with verified copy of the account upon which suit was brought attached. Upon the trial in justice’s court, the affidavit to the account was admitted in evidence without objection. The justice rendered judgment in favor of plaintiff, and the two defendants removed the cause to the circuit court by certiorari, where the judgment of the justice was affirmed. The only question now raised upon this record is whether the affidavit sufficiently sets forth the partnership of the defendants.

The defendants Button and Olson were both personally served with copy of summons and affidavit stating the account. Defendant George was not served. He has not appealed. The affidavit to the account states that “on and between the 1st day of February, 1895, and the 21st day of March, 1895, he [affiant] worked for Otto Olson, Charles F. Button, and James George, of Bessemer, Michigan, in their mine at Dodgeville, Wisconsin, * * * under an agreement with them through their foreman; * * * that he rendered a statement to them showing the number of days’ work,” etc. This was some evidence of a partnership; and, the justice having taken it as such, the finding on certiorari cannot be reversed. No question of jurisdiction is involved. The case is governed by Locke v. Farley, 41 Mich. 405; Forbes Lithograph Manfg. Co. v. Winter, 107 Mich. 116.

The judgment below is affirmed.

The other Justices concurred.


text:
    LORIMER v. WAYNE CIRCUIT JUDGE.
    Probate Courts — Non-appealable Orders — Statutes.
    An order of the probate court under 3 How. Stat. § 5992a ef seq., determining who are the heirs, minor heirs, or legal representatives of a decedent, which order, under section. 5992c, is only prima facie evidence of the facts found therein, is not appealable under the general statute (2 How. Stat. § 6779) providing for appeals from probate court “in all cases not otherwise provided for.”

      Mandamus by Emily Lorimer to compel William L. Carpenter, circuit judge of Wayne county, to allow relator a jury trial of issues sought to be raised by an appeal from an order of the probate court.
    Submitted April 5, 1898.
    Writ denied May 6, 1898.

      Flowers, May & Moloney, for relator.

      Edwin F. Oonely and Orla B. Taylor, for respondent.
   Long, J.

Relator filed a petition in the probate court, stating that she was the widow of Thomas Lorimer, deceased ; that said Lorimer died intestate and without issue; that at the time of his death he was the owner of certain lands in Wayne county. The petition set up the names of the claimed heirs, and asked an order under 3 How. Stat. § 5992a et seq., determining who were the legal heirs. On the hearing the probate court found that the petitioner was not the widow or heir at law of the deceased, and had no interest in the lands, etc. He thereupon denied the petition. An appeal was taken by the relator to the Wayne circuit court. The cause was there noticed for a jury trial before Judge Carpenter. Upon the calling of the cause, counsel for the administrator of the estate objected to the impaneling of a jury. This objection was sustained. Relator now asks a mandamus to compel the circuit court to set aside that order, and proceed to the trial before a jury. A return has been made to the order to show cause. Two contentions are made by counsel for the administrator: (1) That the order made by the probate court, adjudging that the relator was not the widow of Thomas Lorimer, deceased, is not appealable; (2) that the case is not one for the determination of a jury.

Section 3 of the act under which the proceedings were brought (3 How. Stat. § 5992c) provides that the probate court may, upon such application,—

“Hear proofs, taken by commission or by witnesses produced in open court, of the facts set forth in said petition, and shall thereupon, if the evidence be sufficient, find and adjudge who are, or were, the heirs, minor heirs, or legal representatives of the deceased, and entitled by the laws of this State to inherit the real estate of the deceased; * * * which finding and adjudication shall be entered on the journal of said court, and which entry, or a duly-certified copy thereof, shall be prima facie evidence of the facts therein found.”

The statute does not authorize an appeal from this finding. The general rule is that where a special and extraordinary jurisdiction, not following the common law, is created by statute, no appeal can be taken therefrom, unless expressly provided for in the statute. Cross v. People, 8 Mich. 113; Smith v. Superintendents of Poor, 34 Mich. 58; Auditor General v. Pullman Palace-Car Co., Id. 59. But counsel for relator contend that the appeal is authorized by-2 How. Stat. § 6779, which provides that, ‘ ‘ in all cases not otherwise provided for, any person aggrieved by any order, sentence, decree, or denial of a judge of probate may appeal therefrom to the circuit court,” etc. The act under which the proceedings were instituted does not purport to make the proceedings of the probate court conclusive upon anybody. They are • not binding even upon the relator. The petitioner, or other person interested, if not satisfied with the findings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action of the probate court. The proceeding simply makes evidence, and any common-law jury could overturn it in any other proceeding. In Miller v. Davis, 106 Mich. 302, this statute was before this court, and it was said:

“ It is remedial in its character, takes away no vested rights, and is, like a statute establishing a rule of evidence, or one designed to perpetuate testimony, unobjectionable because in a sense retroactive.”

The legislature evidently intended that the proceedings under this statute should be summary, and hence provided no appeal.

The order not being appealable, the other question need not be discussed.

The writ must be denied.

The other Justices concurred.


author: Montgomery, J.

text:
    HAMILTON v. ARNOLD.
    1. Trial — Requests to Charg-e — Disputed Facts.
    A party who, by his requests to charge, has treated certain questions of fact as disputed, cannot complain because the court treats them in the same way in its general instructions.
    2. Assault and Battery — Instructions.
    An instruction, in an action for assault and battery, that, if plaintiff was removing defendant’s property “with no manifestation of force, then defendant would not be excusable in using force, or legally allowed to do so,” is harmless error» where it was elsewhere clearly charged that he might use sufficient force to reclaim the property, or to prevent its removal, and where the evidence tends to show the use of excessive force.
    Error to Calhoun; Smith, J.
    Submitted April 6, 1898.
    Decided May 6, 1898.

      Case by Paulina Hamilton against Adam C. Arnold for assault and battery. There was a judgment against defendant, from which M. V. Barker, his administrator) brings error.
    Affirmed.

      Herbert E. Winsor, for appellant.

      Williams & Lockton, for appellee.
   Montgomery, J.

This action was for-an assault and battery alleged to have been committed on the plaintiff, and was prosecuted to judgment against Adam C. Arnold in his lifetime. His administrator has procured a bill of exceptions to be settled, and brings error.

A preliminary question arises over a challenge made to the array of jurors. We need not discuss this question at length, as the ruling of the circuit judge is fully sustained by previous rulings of this court. People v. Coffman, 59 Mich. 7; People v. Coughlin, 67 Mich. 470.

The facts of the case developed at the trial were these: Plaintiff and her husband resided on lot 88, block 4, Battle Creek. The defendant was the owner of the adjoining lot 87. The exact location of the line was disputed. On the disputed land there were three plum trees. The plaintiff and her son were, on the day of the alleged assault, gathering plums from one of these trees. The defendant, accompanied by a deputy sheriff, came on the scene, and, as plaintiff’s testimony tends to show, found plaintiff with a pan partially filled with plums, standing on a portion of the lot occupied by herself and husband, and outside the disputed territory, and seized hold of her. Plaintiff also claimed that the defendant had given her permission to gather the plums.

The defendant’s counsel assigns numerous errors on the charge. It is first contended that the court was in error in submitting to the jury the question whether the plum tree stood on the lot occupied by the Hamiltons, and also in submitting to the jury the question whether deceased gave plaintiff permission to pick plums from the tree. Without reciting the testimony at length, it will suffice to say that there was some testimony to support each of the claims made by the plaintiff in that regard. Furthermore, the requests preferred by the defendant at the trial treated both of these questions as disputed questions of fact. One of these requests was as follows:

“If the fruit which the plaintiff was attempting to gather and remove was upon lands owned or controlled by tire defendant, then she had no lawful right upon the lands, or to the possession of the fruit, without permission of defendant; and without such permission she was a trespasser.”

This instruction was given in substance, and the circuit judge very properly stated the converse of the proposition, leaving to the jury the determination of the facts which the defendant’s counsel assumed to be in dispute.

Complaint is made of a portion of the instruction reading as follows:

“If you should find that Mrs. Hamilton had no right to the plums whatever, yet in picking and taking them away she was doing so by no manifestation of force, then the defendant would not be excusable in using force, or allowed legally to do so.”

It is said that this instruction was erroneous for the reason that, even though the plaintiff was inactive, the defendant had the right to use force sufficient to reclaim his property. This is, in the abstract, correct, and, if we were satisfied that the jury could have been misled by this instruction, we should feel constrained to reverse the case, as we cannot affirm its technical accuracy; but a review of the full charge, when taken in connection with the proofs in the case, convinces us that the jury could not have been misled. The plaintiff’s testimony tended to show that the defendant came up to her, and seized hold of her with considerable force, and that this was the first attempt to reclaim the property. The court, in view of this testimony, doubtless intended to convey the idea to the jury that the defendant was not justified in using unnecessary force, and, in view of the very full instructions given in other portions of the charge, we think the jury must have so understood it. These instructions were as follows:

‘ ‘ If the plaintiff was removing the plums belonging to the defendant without lawful right, then the defendant would be justified in attempting to take them from her, and could use sufficient force to .compel the plaintiff to give them up.
“If the plums, which are the property in question in this case, belonged to the defendant, and the plaintiff was attempting to remove them without consent or lawful authority from the defendant, and they belonged or were under the control of defendant, he had a right to prevent her from so doing. * * * But in the case suggested — that is, should you find that the plaintiff had no legal right to the plums, and that the defendant was seeking to retake only what belonged to him — he would only have had a right to use sufficient force to overcome the force-used by Mrs. Hamilton in taking away the plums. Defendant would have no right to use more force than was reasonably necessary, under all the circumstances, to retake them; and, should you find that he did use more force than was reasonably necessary, he would be liable for such damages as were occasioned by such excessive use of force.”

A criticism is also made of a portion of the charge reading:

“If Mrs. Hamilton had no right to the plums, Mr. Arnold would have no right to use more force than was reasonably necessary to retake his property; in other words, he would have no right to commit an assault and battery upon her. ”

This criticism is answered by supplying the succeeding sentence omitted in the criticism of counsel, viz. :

“That is, to go beyond the necessary force of retaking his property.”

A criticism is made of the charge of the court on the question of damages, and it is said the court erred in permitting the jury to award added damages for injury to the feelings in case malice should be found, for the reason that there was no evidence of malice. It is evident that defendant’s counsel considered this a proper question for the jury, as he preferred the following request: “ The defendant cannot be charged with malice unless it has been shown by evidence that he was intending to injure plaintiff at the time he took hold of her arm and tried to recover his property.” We may add that there was evidence from which we think the jury might' have been justified in inferring malice, and that the charge of the court upon this subject was carefully guarded.

We discover no prejudicial error. The judgment will be affirmed.

The other Justices concurred.


text:
    GRAND RAPIDS NATIONAL BANK v. KRITZER.
    1. Summary Proceedings — Jurisdiction of Justice.
    The fact that there is no circuit court commissioner residing in the township in which summary proceedings to recover the possession of land are instituted before a justice under 2 How. Stat. § 8296, conferring jurisdiction upon a justice under such circumstances, need not be set up in the complaint.
    2. Execution Sale — Return of Sheriff — Posting of Notices.
    A sheriff’s deed on execution sale is not invalid because his return fails to show that notices of sale were duly posted.
    8. Same — Validity—Summary Proceedings.
    The validity of a sale of land on execution is properly triable in summary proceedings by the purchaser to recover the possession of the premises sold.
    Error to Newaygo; Edwards, J.
    Submitted April 6, 1898.
    Decided May 6, 1898.

      Summary proceedings before a justice of the peace by the Grand Rapids National Bank against Magdalena Kritzer and others to recover the possession of land. Complainant prevailed before the justice, and defendants appealed to the circuit court. From a judgment there for defendants on verdict directed by the court, complainant brings error.
    Reversed.
    L. G. Rutherford, and Joseph Renihan, for appellant.

      George Luton and A. G. Day, for appellees.
   Montgomery, J.

The complainant instituted before a justice of the peace summary proceedings to recover possession of land claimed by the complainant under a sheriff’s deed made on sale of the same on execution in a suit by complainant against the Kritzer Milling Company. Complainant recovered judgment before the justice, and defendants appealed to the circuit. At the trial the circuit judge directed a verdict for the defendants on the ground that the title to land came in question, and complainant brings error. Three questions are argued in this court. It is insisted by the defense — ■

(1) That the justice acquired no jurisdiction, for the reason that the complaint failed to allege that there was no commissioner residing in the township in which suit was instituted. .
(2) That the sheriff’s deed is invalid for the reason that no evidence appears in the clerk’s office that notice of sale was duly posted.
(3) That, in any event, the title to land came in question, and the court had no power to try the issue.

1. The statute (2 How. Stat. § 8296) does not require the complaint to set up the fact that no commissioner resides in the township. If the fact be so, the justice is given jurisdiction. The question is analogous to that arising on a short summons, which is authorized only in case of nonresidence of one of the parties. In such case it is held that the summons need not recite the fact, and that if tbe defendant contends that the summons is not proper, because of the fact that both parties are resident, he should make the fact appear. Allen v. Mills, 26 Mich. 123; Stoll v. Padley, 98 Mich. 14.

2. The counsel for defendants rely upon Perrien v. Fetters, 35 Mich. 233, and New York Baptist Union v. Atwell, 95 Mich. 240, to sustain the contention that the proof of publication of notice of sale should be made a matter of record. The sales under consideration in these cases were chancery sales, which are required to be confirmed by the court; and the question involved in Perrien v. Fetters was what should be made to appear to the court to j ustify a confirmation. I confess to grave doubts as to whether the sufficiency of the officer’s return can be questioned collaterally after confirmation, as seems to be implied in New York Baptist Union v. Atioell; but, however that may be, it is settled that under our statute it is not the sheriff’s return of an execution sale that settles the question of the purchaser’s title, but the sheriff’s certificate and deed. Spafford v. Beach, 2 Doug. (Mich.) 150; Cook v. Knowles, 38 Mich. 322. The statute governing sales of land on execution provides:

: “The omission of any officer to give the notice of sale required in this chapter, or the taking down or defacing of any such notice when put up, shall not affect the validity of any sale made to a purchaser in good faith, without notice of such omission, taking down, or defacing.” 2 How. Stat. § 6114.

By section 6112, provision is made for recovery, by any person injured by the default of the officer in posting notice, of any damages sustained, together with a penalty of $500. There is no provision in chapter 232, 2 How. Stat., which governs in sales of real estate on execution, requiring a return of the officer to the court of proof of publishing or posting notices. In this case the only evidence of any dereliction of the sheriff is the absence of a record, which no law requires. The presumption from the certificate and deed cannot be thus overcome. Wood v. Morehouse, 45 N. Y. 368; and see the case of President, etc., of Natchez v. Minor, 10 Smedes & M. 246, where the distinction between such a statute as ours and that of Massachusetts, which requires a record of proof of service, is noted.

3. Did the title to land come in question, so as to oust the court of jurisdiction? The statute expressly gives the remedy sought in this case against one holding over after a sale of real estate on execution after the time limited by law. • In this case it appears that the defendants deeded these lands to the Kritzer Milling Company, and continued thereafter to occupy them, and that there was no contract between the grantee and themselves relating to the occupancy. This transaction constituted them, at most, tenants by sufferance, and thus established privity between the parties. Stevens v. Hulin, 53 Mich. 93. No other title whatever was shown, or attempted to be shown, in defendants. It is true, one of the defendants testified that another defendant claimed title. It does not cost much effort to do this, and it certainly amounts to no more than a plea of title, which in Butler v. Bertrand, 97 Mich. 59, was held not to oust the court of jurisdiction. The only attempt to try title was that made to impeach the proceedings by which complainant acquired title under the sheriff’s deed. The question of the validity of this title was properly triable in this proceeding. As was pertinently said by my Brother Hooker in Gage v. Sanborn, 106 Mich., at page 279, “If these questions cannot be tried by the commissioner, the statute is farcical, as jurisdiction would always be lost as soon as a plausible claim of invalidity of the sale was made.”

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, C. J.

text:
    SCHMOLTZ v. SCHMOLTZ.
    1. Written Contracts — Ratification—Estoppel.
    One cannot ratify a written agreement, and at the same time assert a different parol one.
    3. Husband and Wife — Contract of Separation — Fraud—Contingent Interests — Jurisdiction of Law Court.
    Since a wife has not a present subsistent, but only a contingent, interest in personal property owned by her husband, misrepresentation by-him as to the value of such personalty, whereby she is induced to execute a contract of separation upon terms which, but for the misrepresentation, she would not have agreed to, will not entitle her to sue at law to recover' her damages.
    3. Fraud — Sufficiency of Allegations.
    An allegation that one defendant told plaintiff that the other defendant deemed certain land to be worth a specified amount, which was in fact worth more than that, is insufficient to support a charge of fraudulent misrepresentation as to the value of the land.
    Error to Ionia; Davis, J.
    Submitted April 7, 1898..
    Decided May 6, 1898.
    Case by Jennie B. Schmoltz against Frank E. Schmoltz and Jacob Schmoltz for deceit and conspiracy to defraud. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.
    Affirmed.
    Plaintiff and defendant Frank E. Schmoltz are husband and wife. They were married in 1888. They have one child, about eight years old. They lived together as husband and wife until January 2, 1897, when they separated. Two days after, they made an agreement of settlement. The agreement recited that unhappy differences had arisen between them; that they had determined to live separate- and apart; that they had ceased to cohabit as husband and wife, but had lived in the same house until January
      2, 1897; that in consideration of $800 paid to her by her husband, and certain personal property to be retained and owned by her as if she were a single woman, she agreed to join him in the deed of a house and lot in the city of Ionia to defendant Jacob, the father of defendant Frank. She further agreed to release him from any claim for her support and maintenance during her life, and all right of dower, and all claim or interest in any personal property that he might then own or might thereafter accumulate. He further agreed to pay $52 a year towards the support and maintenance of their child until she should be 14 years old. This agreement was carried out. This suit is based upon fraud and deceit on the part of defendant Frank in securing this settlement. The alleged deceit consists in misrepresentations as to the amount of property owned by him, and as to the value of the lot conveyed to defendant Jacob. The declaration also alleges conspiracy between the defendants to cheat and defraud the plaintiff out of her just rights. The declaration contains three long counts. They are substantially the same, and it is unnecessary to further state the cause of action. The case is before us on a judgment sustaining a demurrer to the declaration.

      A. A. Ellis, for appellant.

      McQarry & Nichols, for appellees.
   Grant, C. J.

{after stating the facts). Counsel for the plaintiff states his position as follows:

‘ ‘ The action in this case is not brought upon the contract, but is upon the theory that the contract is valid, and the action is for the fraud committed in making the contract, and inducing the plaintiff to release without receiving the compensation, and in causing her to execute a written release that did not express the true consideration between the parties.”

In other words, she affirms the contract, retains all the benefits which she has obtained from it, and asserts that she would not have made it had she not been misinformed by her husband as to the amount of his property, and now seeks to have a jury or court give her an additional amount. Her declaration asserts that the parol agreement was that she should have one-half of his property, but such is not the written agreement. She ratifies that, and cannot be hfiard to assert a different one. If it did not contain the actual agreement of the parties, her appropriate remedy is in equity, to set it aside or to reform it. The only theory, therefore, before us, is that he misrepresented to her the amount of his personal property; that she would not have made the contract had she been fully informed, and is therefore entitled to damages for such misrepresentation.

What interest has she in the personal property ? Only that which comes from the marital relation. The title was in him, not in her. She has no salable interest. He could sell and convey it without her consent. The household goods were divided between them, he taking certain specified articles, and she taking the rest. There is no way to determine what her interest in the property is. She had no present subsistent interest to be damaged. A court of law cannot determine whether the separation was due to his or her fault, with a view to determining how much she ought to have. That subject belongs exclusively to a court of chancery. They have concluded to separate, and, by the agreement of separation, have fixed their rights. She relinquished her right to support, and he to her services and society. Both recognized the duty to support the child, and agreed how much he should contribute towards it, and that she should contribute the rest. Under like circumstances, this court said:

‘ ‘ The consideration for the conveyance embraced matters incapable of any accurate estimate in money, and the consideration named' by the parties must therefore be taken and deemed to be the valuation placed upon it by themselves.” Randall v. Randall, 37 Mich. 563, 574.

What shall be the measure of damages if she be entitled to recover? Shall it be such alimony as the jury may think she is entitled to have if they find she is not at fault ? Shall it be one-third or one-half of his property, or what she would be entitled to upon his death ? Alimony rests entirely in the judgment of a court of equity, and depends upon the condition and situation of the parties, — the necessities and property of the wife, and the conduct and abilities of the husband. It thus appears that plaintiff had no valid subsisten! rights or interests in her husband’s property, but only contingent ones, and such cannot be made the subject of a suit at law for damages. The court correctly held that the declaration set forth no damages which she was entitled to recover in a suit at law. Hutchins v. Hutchins, 7 Hill, 104; Adler v. Fenton, 24 How. 407.

There is no allegation in the declaration that defendant Jacob made any representation whatever to, her, either as to the value of the lot or as to the amount of the personal property, or that he said anything to her to induce her to make the agreement. . The sole allegation in regard to Jacob is that Frank said to plaintiff that defendant Jacob deemed the lot to be worth $1,600, while she alleges it to be worth $2,000. This is not a sufficient allegation upon which to base a charge of fraud or conspiracy or misrepresentation of the value of the land.

The judgment is affirmed.

The other Justices concurred.


text:
    SWEENEY v. LUSTFIELD.
    1. Pleading — Objections to Declaration — Demurrer.
    An objection that the declaration, in an action against a surety upon an undertaking for a stay of execution on a justice’s judgment, counts upon a common-law, instead of a statutory, obligation, must be taken by demurr'er.
    2. Stay Bond — Rights oe Surety — Subrogation.
    A surety upon an undertaking given under 2 How. Stat. § 6968, to stay execution, is not entitled to the protection of sections 6977, 6978, relating to the right of a surety to have the property of the principal first resorted to to satisfy an execution, as section 6958 provides that execution may issue against both principal and surety upon such an undertaking, with the same effect as if the judgment had been rendered against both upon a joint liability, and section 6971 amply protects the surety by subrogating him, after satisfaction of the judgment, to all the rights which the judgment creditor had.
    Error to Iron; Stone, J.
    Submitted April 7, 1898.
    Decided May 6, 1898.

      Assumpsit by Edward Sweeney against Adolph Lust-field upon a bond to stay execution on a justice’s judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings, error.
    Affirmed.

      Julius J. Patek (Button & Norris and P. C. Flan-' nigan, of counsel), for appellant.
    ■ Cook & Pelham, for appellee.
   Montgomery, J.

Plaintiff, on the 21st of March, 1893, recovered a judgment against the Deer River Lumber Company (composed of Benjamin F. Davenport and Fred Esau, copartners) for $188.71 and costs. The defendant, on the 27th of March, 1893, entered into an undertaking, as surety, for the stay of execution on said judgment, which is set out at length in Lustfield v. Ball, 103 Mich. 17. The present action is brought on that undertaking. In Lustfield v. Ball, supra,, we held that the undertaking was in compliance with section 6963, 2 How. Stat. It is now contended that the declaration counts on this undertaking as a common-law obligation, and not as a statutory stay. The declaration, however, sets out all the facts leading up to the giving of the undertaking, and sets that instrument out in full. The declaration was not demurred to, and was not subject to this objection on the trial. Grand Rapids, etc., R. Co. v. Southwick, 30 Mich. 444; Fuller v. City of Jackson, 82 Mich. 480; Hayes v. City of West Bay City, 91 Mich. 418.

The only other question raised relates to a ruling on the trial which was made the basis for a motion for a new trial after verdict. The opinion of the learned circuit judge given on this motion states the question and- conclusions in accordance with our views, and we adopt it as our own. It is as follows:

“The single question presented by this motion for a new trial is whether or not the circuit judge erred upon the trial in refusing the offer by defendant of proof by witness Benjamin F. Davenport that at the time the execution was issued upon the judgment in the case of Edward Sweeney against the Deer River Lumber Company, and while the same was in the hands of the sheriff, and before a levy thereof was made upon the goods of the defendant in this suit, he, the said Davenport, was possessed of sufficient property, free from incumbrance and subject to execution, from which the entire amount of the said execution could have been made, and that he offered to turn the same out to the sheriff and to said Sweeney, for the purpose of levy and sale on said execution. It is contended by defendant’s counsel that this offer of proof by Davenport on behalf of the Deer River Lumber Company discharged and satisfied the execution, in so far as Lustfield was concerned; and he cites and relies upon sections 6977, 6978, 2 How. Stat. Do these sections apply to a case of stay of execution? Section 6953, Id., provides that ‘in all cases where security shall have been given for the stay of execution, as hereinafter provided, if the debt or damages, with interest and costs, shall not be paid within the time limited by law therefor, execution shall be issued by the justice, on application of the judgment creditor, his agent or attorney, against both principal and surety, with the same effect as if the judgment had been rendered against both such principal and surety upon a joint liability, after the return of process personally served,’ etc. The statute contains numerous provisions for the benefit and protection of sureties for stay of execution. See sections 6969-6971. This last section subrogates the surety who has satisfied the judgment to all the rights which the judgment creditor had. In other words, it is competent and proper for the person who has become surety for the stay of execution to satisfy the judgment, and then proceed to sue out execution on such judgment, and proceed to collect of defendant. But will any offer or action by the defendant, short of a tender of the amount due, in lawful money of the United States, release the liability of the person who has become surety for the stay of execution? It seems to me not. Under section 6953, the liability of the surety is the same, as though judgment had been rendered against both principal and surety on a joint liability, after the return of process personally served. In my judgment, sections 6977 and 6978 do not apply to the person who has become surety for the stay of execution. Such person is amply protected by section 6971.”

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    RUSSELL v. NORTH AMERICAN BENEFIT ASSOCIATION.
    1. Benefit Insurance — By-laws — Arbitration — Validity of Award.
    Where the by-laws of a benefit association, which, by reference, are made a part of its policy, contain a provision that an award by arbitrators, who, under the terms of the policy, are to decide all disputed claims, shall be legal only if signed by all three of the arbitrators, an award signed by two of the arbitrators, but not signed by the one appointed by the association, cannot be enforced against it, although it is shown that the assured had never been furnished with a copy of the by-laws, and that the association refused to produce a copy before the arbitrators when requested to do so.
    2. Same.
    By-laws of a benefit association, referred to in its policy and made a part thereof, providing for arbitration of disputed claims, and that the award shall be final, but that no award shall be valid if not signed by all of the arbitrators, in which case either party shall have the right to a new arbitration, and providing that no suit in law or equity shall be commenced or maintained by any member against the association, will not be declared inoperative on the ground that they are unreasonable and oppressive.
    3. Appeal — Costs.
    The Supreme Court will, in its discretion, disallow costs on appeal, where the conduct of the prevailing party in relation to the suit is not such as to commend itself to a sense of justice.
    Error to Wayne; Grove, J., presiding.
    Submitted April 7, 1898.
    Decided May 6, 1898

      Assumpsit by Wilber Russell against the North American Benefit Association upon an award made under a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error,
    Affirmed.

      R. C. Barnes, for appellant.

      George W. Bates, for appellee.
   Moore, J.

This suit is on an award made on a claim for a funeral benefit of $50 upon a policy of insurance. The court below directed a verdict in favor of defendant. The certificate of insurance contained a reference to the constitution and by-laws of the company, and made them a part of the policy. On the back of the policy, among other statements, was this one:

.“In case any question shall arise as to the validity of any claim for sickness, injury, or death, the same shall be arbitrated by a board of three physicians in good standing; said board to consist of one physician to be appointed by the medical director, and to be paid for by the association, and one physician to be selected by the member, and to be paid for by the said member; the third physician to be selected by the medical director’s appointee and the member’s appointee; said third physician to be paid for equally by the association and the member; and the decision of said board of arbitrators shall be final.”

On the presentation of the claim to the defendant it did not pay the claim, but demanded an arbitration, and arbitrators were selected. It is the claim of the attorney for the plaintiff that he heard, shortly before the arbitration, that defendant meant to defeat the claim through the provisions of the by-laws, and that he demanded from its manager that a copy of them be produced before the arbitrators, and that this demand was refused; that he requested the arbitrators to require a copy of the by-laws to be produced, but they declined to do so upon the ground of want of authority. It is also claimed by plaintiff that a copy of the by-laws was never furnished the assured, and that it was supposed by the plaintiff that the condition indorsed on the back of the policy, in relation to arbitration, was the only provision made between the parties in relation thereto. The claim is also made that all the arbitrators agreed upon awarding $50 to plaintiff, but that, for want of time to draw the finding, it was not signed on the evening of said agreement, but an adjournment was had until next morning to draw and sign it; that at this adjourned meeting the arbitrator selected by the defendant absented himself, and sent a note in effect declining to sign the award. It was signed by the other two arbitrators. The defendant refused to pay the award, and suit was brought upon it. The defense was that it was not a valid award, because not signed by the three arbitrators, as required by the by-laws. The by-laws were produced for the first time on the trial, and introduced in evidence, and, so far as material, are as follows :

“In case any question shall arise as to the validity of any claim for sickness, accident, or death, the same shall be arbitrated by a board of three registered physicians in good standing; said board to consist of one physician to be appointed by the medical director, and to be paid for by the association, and one physician to be appointed by the member, and to be paid for by the member; the third physician to be selected by the medical director’s appointee and the member’s appointee, to be paid for equally by the association and the member. The award of said board of arbitrators must be signed by all the arbitrators, and in all such cases, when so signed, shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary against the North American Benefit Association. If the award is not signed by the full board of arbitrators, then, in that case, either party shall apply for a new arbitration, and the said board of arbitrators shall be appointed as stated heretofore; and all awards made by any board of arbitrators must be signed by all the arbitrators, and, if not so signed, then there is no legal award, and either party shall apply for a new arbitration; and no suit in law or equity shall be commenced or maintained by any member or beneficiary against the North American Benefit Association.”

The trial judge felt it his duty, in view of the provisions of these by-laws, to direct a verdict in favor of defendant. It is now urged that, as defendant failed to produce the by-laws at the hearing before the arbitrators, it must be deemed to have waived the signing of the award by all the arbitrators as provided in the by-laws. If this was a case where suit might be brought upon the policy itself in case an effort to arbitrate had failed without the fault of the plaintiff,'— a question upon which we express no opinion, — there would be a good deal of force in this contention. This is not a suit of that character; it is a suit upon an award which is shown by the contract made by the parties to be invalid. It is urged by plaintiff that the by-laws are unreasonable and oppressive, and should not be allowed to control. By-laws of a similar character have been before the courts in this State so often that their status is settled. Canfield v. Knights of Maccabees, 87 Mich. 636 (34 Am. St. Rep. 186); Hembeau v. Knights of Maccabees, 101 Mich. 161 (45 Am. St. Rep. 400); Raymond v. Insurance Co., 114 Mich. 386. The decision of the court must be affirmed.

This suit originated in justice’s court. As the question of costs is discretionary, and the conduct of the defendant in relation to the by-laws is not such as to commend itself to our sense of justice, no costs will be allowed to either party.

The other Justices concurred.


text:
    KEELER v. DEO.
    1. Mandamus — Answer—Conclusiveness.
    In mandamus proceedings, where the hearing is upon the petition and answer, the answer must be taken as true.
    2. Same — Parties—De Pacto Officers.
    A proceeding by mandamus cannot be maintained to compel the payment of school funds by a township treasurer to one claiming to be the school-district assessor, where its effect would be to oust from office an assessor de faeto who is not a party to such proceeding.

      Certiorari to Lapeer; Smith, J.
    Submitted April 8, 1898.
    Decided May 6, 1898.

      Mandamus by Henry M. Keeler, director, James Simmons, moderator, and George A. Chase, claiming to be assessor, of school district No. 1 of North Branch township, to compel John N. Deo, township treasurer, to pay certain school funds to the relator Chase upon warrants drawn by the other relators. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Stickney & Reed, for relators.

      Geer, Williams & Halpin, for respondent.
   Moore, J.

November 12, 1897, the relators filed a petition in the circuit court for Lapeer county, in which they stated that Mr. Keeler was director, Mr. Simmons moderator, and Mr. Chase assessor, of school district No. 1 of North Branch, in the actual discharge of their duties, and had been for more than a year. It also stated that Mr. Deo was the treasurer of the township' of North Branch, and that the moneys belonging to said school district had come into his hands as treasurer. It also stated that in January, May, and'June, 1897, warrants were drawn on said treasurer, in favor of Mr. Chase, as assessor, by the director, countersigned by the moderator, aggregating the sum of $293.05; that Mr. Chase presented these warrants for payment, and that payment was refused by the treasurer. The petition also stated that, because of said refusal, the teachers’ wages and other school expenses could not be paid, and prayed for a writ of mandamus requiring the respondent to pay the warrants drawn upon him.

The respondent answered the petition, and admitted that Mr. Keeler was director, and Mr. Simmons moderator, as stated in said petition, but denied that Mr. Chase was the assessor, and averred, upon information and belief, that William Coffron was, and had been for four years, the assessor of said district, in the actual possession of the office, and discharging its duties, as would more fully appear by the affidavit of Mr. Coffron, which .affidavit the answer made a part thereof. He admitted the receipt of the school money, as treasurer, and the presentation of the warrants by Mr. Chase, and stated that payment was refused because Mr. Chase was not assessor ■of said school district, either de facto or cle jure. The answer denied that all the funds which came to him as treasurer, belonging to said school district, were in his hands, and stated that $250 had been paid by him to William Coffron, as assessor of said school district, and had been applied by Mr. Coffron, as assessor, in paying teachers’ wages, and other expenses for said school district.

The affidavit of Mr. Coffron is to the effect that he was elected to the office of assessor in September, 1893, and was re-elected in September, 1896, and that within 10 days he filed his acceptance and official bond. It also states that when re-elected he had $90.12 in his hands, belonging to said district; that Mr. Chase made a demand upon him for that amount, which demand he refused, for the reason that he (Mr. Coffron) claimed he was assessor, which reason was stated to Mr. Chase; that $250 of the money belonging to said district was paid to him by Mr. Deo, and that he commenced to pay out said money for the school district in September, 1896, and continued to pay orders drawn by Mr. Keeler, director, countersigned by Mr. Simmons, moderator, — the last of said orders bearing date June 11, 1897, which order was for $50, teachers’ wages; that he paid one order of $115, dated January 13, 1897, for teachers’ wages, and one of April 30, 1897, for teachers’ wages, and that he is informed that there is but one order issued by the said director and moderator outstanding and unpaid, which order is for $20, but has never been presented for payment; and that he now has about $63 in his hands, belonging to the district. The affidavit further states that Mr. Chase has never been in possession of the office of assessor of said school district, and has not received any of the books or papers belonging to the district, but that they have all been retained by affiant, as assessor of said district, and no action or proceeding has been commenced by Mr. Chase to recover possession, of them, and that they, as well as $63 of money belonging to the said district, are yet in the possession of affiant.

It was the opinion of the circuit judge that when the director and moderator recognized Mr. Chase as assessor, by delivering to him, as assessor, the warrants, upon their presentation, so far as the township treasurer is concerned, Mr. Chase must be regarded as the assessor de facto, —citing School District v. Root, 61 Mich. 377; McCormick v. Bay City, 23 Mich. 457; Burns v. Bender, 36 Mich. 195; Moiles v. Watson, 60 Mich. 415. He also held that whether Mr. Chase was assessor de jure or not could not be determined in this action; citing Mead v. Ingham County Treasurer, 36 Mich. 416; Moiles v. Watson, supra. He also held that as there had been delay in applying for the writ, and Mr. Coffron had paid out the district money, for its debts, upon orders issued by the director, • countersigned by the moderator, these amounts must be treated as paid, and directed the writ should issue for $63.22, which was just the amount shown by Mr. Coffron’s affidavit to be in his hands. No mention was made of the $43.05 remaining in the hands of the respondent.

We think the court erred in its conclusion as to who is shown by the record to be the officer de facto. It is well settled in mandamus proceedings, where the hearing is upon the petition and answer, that the answer must be taken as true. Mead v. Ingham County Treasurer, 36 Mich. 416; Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360; Coffron v. Board of Canvassers, McGrath, Mand. Cas. No. 1157; Noble v. Township of Paris, 56 Mich. 219; Murphy v. Reeder Township Treasurer, Id. 505; Merrill v. Gladwin County Treasurer, 61 Mich. 95; Tyler v. Oceana County Supervisors, 93 Mich. 449; City of Benton Harbor v. St. Joseph, etc., R. Co., 102 Mich. 386 (47 Am. St. Rep. 553). The answer denies that Mr. Chase is assessor de facto, and avers that Mr. Coffron is assessor de facto, in •the possession of the office, claiming to be duly elected .and qualified. The affidavit of Mr. Coffron, which is made a part of the answer, shows that he has been in possession of the office from September, 1893, and is still in possession; that at the school meeting in September, 1893, he was elected, and afterwards duly qualified, as assessor; that in September, 1896, he was re-elected, and qualified; that at the time of his re-election he had upwards of $90 in his hands, belonging to the district; that afterwards $250 was paid him, as assessor, by the township treasurer, which has been paid out by him, as assessor, to pay teachers’ wages and other school expenses, upon orders drawn by the director and countersigned by the moderator. Mr. Coffron had refused to deliver up his office to Mr. Chase, and, though nearly 14 months had elapsed, Mr. Chase instituted no legal proceedings to obtain possession of the office until this one was instituted. The effect of the order made by the learned judge is to oust Mr. Coffron from the office of assessor by a proceeding in mandamus to which he was not a party. We do not think the title to the office can be determined in that way. Mead v. Ingham County Treasurer, 36 Mich. 416; Moiles v. Watson, 60 Mich. 415; Pariseau v. Board of Education, 96 Mich. 302. See, also, Hallgren v. Campbell, 82 Mich. 255 (9 L. R. A. 408, 21 Am. St. Rep. 557); Tower v. Welker, 93 Mich. 332.

The order of the court below, granting a writ of mandamus, will be reversed, with costs of both courts.

The other Justices concurred.


text:
    RAWLINSON v. SHAW.
    1. Pleading — Joinder op Counts.
    Plaintiff may in one count declare upon a contract, and seek to reoover for a breach thereof, and in another count set up an arbitration and award for the same matter.
    2. Arbitration and Award — Agreement to Re-submit — Waiver.
    An award of arbitrators is waived by a voluntary agreement of the parties to submit to a new arbitration.
    Error to Kent; Adsit, J.
    Submitted April 7, 1898.
    Decided May 6, 1898.

      Assumpsit by John'W. Rawlinson against Solomon B. Shaw to recover damages growing out of the breach of a contract to publish a book. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Cutcheon & Swarthout, for appellant.

      Rodgers, McDonald & Corwin, for appellee.
   Long, J.

Plaintiff is a superannuated Methodist minister. Defendant is also a Methodist minister, but prior to 1895 had engaged in the publishing business, and had put two books of his own upon the market, one of them entitled ‘ ‘ Touching Incidents. ” In November, 1895, plaintiff called upon defendant, and explained to him his plan to produce a book containing about 40 or 50 condensed sketches of men and women who have lived useful, Christian lives. These sketches were mostly to be abridgments of biographies, giving credit to the authors, only a few of them to be original matter written by plaintiff. He desired the defendant to publish this boob, and the defendant, shortly after that time, made two offers, the last of which is the following:

“I will buy the manuscript of you sufficient to make about two hundred pages. The balance we could prepare ourselves. And I will get the book out on my own responsibility, and will give you for the same one thousand copies of the children’s edition of Touching Incidents, etc., board covers, which, at sixty per cent, off, would be $140; one hundred of the large edition, at sixty per cent, off, would be $40; making a total of $180. If you accept the second offer, would want you to read the proofs from the type. Now, in order to help you along, you could have part of the books soon, or as you find sale for them, and would want you to commence to prepare copy at once.”

This proposition was accepted in writing on January 20, 1896. It was agreed that the plaintiff’s book should be of the same size, style of binding, and make-up as Touching Incidents. It was to sell for $1 per copy, and, if illustrated, at $1.25. On February 21, 1896, plaintiff had completed 29 sketches, which he estimated to be sufficient for 200 pages, and took them to defendant for his inspection. The defendant was about to go out of the city, and, having no place to keep them with safety in his office, plaintiff left only 8 of the sketches with him, taking the rest home. Previous to March 5th, defendant had paid plaintiff $95.52 in books, and on that day wrote plaintiff, asking what he would take to release him from the contract. They were unable to agree, and arbitrators were thereafter agreed upon, and certain proceedings were had, which will be treated of later. The book has never been published. Plaintiff brought this action to recover damages which he claims to have sustained.

The first count avers the contract, the offer of plaintiff to perform his part, the breach by defendant, and claim •of damages, which, it is alleged, consist of the labor and services of plaintiff as a writer for months, at $150 per month, and the price and value of the books and material bought by plaintiff, and other incidental expenses incurred by him in fulfilling the contract, to the sum of $100. Damages are also claimed under this count for the difference between the cost of 1,000 books plaintiff agreed to take and buy under the contract and the price at which the plaintiff could obtain the publication of his book by other publishers, and also “for money laid out and expended in the conduct of two arbitrations in plaintiff’s attempt to recover his damages resulting from defendant’s breach of said contract.” The second count avers:

‘ ‘ And for that whereas, the said defendant, on November 21, 1896, at the city of Grand Rapids, said county, was indebted to the plaintiff in the sum of $300 upon and by virtue of an award there made by G. A. Buell, O. R. Wilmarth, J. S. Valentine, C. A. Shackleton, and W. G. Beckwith, arbitrators chosen by and between the parties, on a submission in writing theretofore made on, to wit, 'April 13, 1896, by the plaintiff and the defendant, to the award and determination of the said arbitrators, concerning certain matters in difference then and there depending between the plaintiff and the defendant, upon which said reference the said arbitrators then and there awarded that the defendant should pay the plaintiff the said sum of money, to wit, $300.”

To these are added the common counts in assumpsit. The defendant pleaded the general issue, with the following notice:

“Sir: Take notice that, on the trial of the above-entitled cause, the defendant will give in evidence in his defense that on, to wit, the 20th day of March, A. D. 1896, the plaintiff and defendant, in writing, mutually submitted the demands set forth in the plaintiff’s declara tion to the arbitration of George B. Kulp, O. E. Wight-man, James N. Dayton, John M. Richens, and J. J. Kinsey, which submission was never revoked; that on the 20th day of March, 1896, at the city of Grand Rapids, county of Kent, and State of Michigan, said George B. Kulp, O. E. Wightman, James N. Dayton, John M. Richens, and J. J. Kinsey made and published their award, by which they declare that the said plaintiff should retain the value of all books received by him from said defendant at that date, and that he be given possession of the manuscript then in the hands of said defendant; that, when the award of said arbitration was announced, said plaintiff then and there demanded of said defendant that he comply with the declaration in said award, and deliver to him the manuscript in question, with which demand said defendant did then and there comply, and gave and delivered to said plaintiff the said manuscript, and settled with him in accordance with the award of said arbitration; that the said plaintiff received the said manuscript in full satisfaction and discharge of the said sevex’al premises mentioned in plaintiff’s declaration, and of all the damages by the said plaintiff sustained by reason of the non-performance thereof.”

The cause came on for tx’ial before a jury in the Kent circuit court. After the opening statement by plaintiff’s counsel, and before any testimony was taken, he was asked by counsel for defendant:

“You make reference to two arbitrations, which you say. these parties had taken steps to set aside. Do you claim anything under either of these arbitrations ?
“A. We do not care to announce ourselves on the thing until the proofs are in. We may or may not. It depends on the evidence in the case. * . * *
The Court: I think, if those two counts are allowed to stand, we are trying two cases in one.”

The motion was therefore granted compelling plaintiff’s counsel to elect upon which count they would proceed, and they elected to proceed upon the first count. This ruling raises the first question presented.

The court was in error in compelling the plaintiff to elect. Upon the face of the declaration two distinct rights of action were alleged, — one upon the contract, and the other upon the award. The second count upon its face purports to disclose a distinct right unconnected with that stated in the other. Assumpsit could have been brought to enforce the award, which is alleged in the second count. The two counts could have been joined. Even upon the supposition that the court was advised by the opening of counsel that the second count was for the same cause of action as stated in the first count, yet we think the court was in error in compelling counsel to elect. One of the objects of inserting two or more counts in one declaration, when in fact there is but one cause of action, is to accommodate the statement of the cause, as far as may be, to the possible state of the proofs to be exhibited -on the trial, or to guard, if possible, against the hazard of the proofs varying materially from the statement of the cause of action, so that, if one or more of the several counts should not be adapted to the evidence, some other of these may be so. The plaintiff has in every case a right to insert in his declaration as many counts (each one being in itself single) as he pleases. It appeared on the trial that the claimed award grew out of the same contract. If the proofs showed that the award was binding between the parties, then the plaintiff could not recover on the contract. If it turned out, however, on the trial, that the award for any reason could not be enforced by either parly, the plaintiff had the right to stand upon his first count. In Mather v. Day, 106 Mich. 371, the trial judge submitted the question of the validity of the award to the jury, with the instruction that, if they found the award binding, they had nothing to do with any matters involved in the controversy covered by the contract. On appeal to this court it was said:

“We think it was proper to submit to the jury, under the circumstances, the questions arising under the submission and award. It is evident from the finding of the jury that they were unable to compute the award from the statement furnished, and therefore disregarded the award entirely, and entered upon the consideration of the general account between the parties.”

A case nearly in point to the question here is Sadler v. Olmstead, 79 Iowa, 121. It appeared that plaintiff in his first count declared upon a contract for hay sold, and sought to recover the contract price. In another count he set up an arbitration and award for the same hay. It was held that the plaintiff had the right to state his cause of action in this way in different counts.

It will be noticed that the defendant, under his plea of thq general issue, gave notice of another submission and award. Upon the trial it was shown that the parties submitted their matters in difference in reference to this contract to arbitration, and that an award was made. Defendant contended that this award had been paid and satisfied; that is, that he had complied with the terms and conditions therein imposed. The award set up by the plaintiff in his declaration was what was called the “second award;” and on the trial the plaintiff offered proofs tending to show that the first award was set aside, and the second submission entered into between the parties, upon which the arbitrators found in his favor the sum of $300. Defendant then offered evidence which, it is claimed, shows that this second award was brought about by compulsion. At the conclusion of the evidence, the court directed the verdict in favor of defendant, saying:

“I am inclined to think that such submission [the second one] cannot be construed as voluntary upon the part of defendant, or as an intentional and binding waiver of the first award; and, if not, I am inclined to think that such award [the first one] would be a good defense to the cause of action sued upon by the plaintiff.”

We think the question whether the second award was obtained by duress was a question of fact for the determination of the jury. It cannot be said that the evidence was so clear upon that question that the court should direct the verdict. If the agreement for the second award was fairly entered into, and the defendant signed it voluntarily, the effect was to waive the first award, and no action would lie upon it, and it could not be set up here as a defense to the plaintiff’s claim under the contract. Rollins v. Townsend, 118 Mass. 224; Burnside v. Potts, 23 Ill. 411; Eastman v. Armstrong, 26 Ill. 216. If the second award was found to be valid, the plaintiff would be entitled to recover the amount of that award. If neither of the awards was valid and binding, the plaintiff would be entitled to recover under his contract whatever his legitimate damages might prove to be.

We think upon a second trial all the matters will be properly disposed of, and that no further discussion of the case is necessary. *

The judgment must be reversed, and a new trial awarded.

The other Justices concurred.


text:
    WHEELOCK v. LAKE.
    1. Administrator’s Sale — Infant Heir — Guardian.
    It is not essential to the validity of an administrator’s sale that a guardian ad litem he appointed for an infant heir already represented by general guardian.
    3. Same — Order of Confirmation — Good-Faith Purchaser.
    A good-faith purchaser may rely upon an order of confirmation of an administrator’s sale as showing that the facts necessary to be ascertained by the probate court before such an order may lawfully he entered were so ascertained.
    Error to Benzie; Aldrich, J.
    Submitted April 8, 1898.
    Decided May 6, 1898.

      Ejectment by Amy A. Wheelock against Emma J. Lake and Merrill L. Lake. Erom a judgment for defendants, plaintiff brings error.
    Affirmed.

      Tweddle & Cross (Dodge & Covell, of counsel), for appellant.

      Patchin & Loranger, for appellees.
   Long, J.

This is an action of ejectment. The cause was tried before the court without a jury, and findings of fact and law made. The claim of the plaintiff is that in March, 1885, the title to the land rested in Ann Wheel-. ock, who died intestate March 12, 1885, leaving surviving her seven children; that at that time the plaintiff was 9 years of age, and, as heir at law, entitled to one-seventh interest in the land. She is now 21 years old, and asserts her title to the seventh interest. On the part of the defendants it is claimed that the premises were sold in 1886, at administrator’s sale, to William Wheelock, and by him deeded to defendants in 1887. They have been in possession of the premises since that time. It appears from the findings of the court below that all the proceedings for the appointment of an administrator were regular; that a petition was made by the administrator for the sale of the premises, and the order granted; that the sale was made October 4, 1886, for $531; that Mary Ann Clark was the duly-appointed guardian of the plaintiff, having given the requisite guardian’s bond; that, after the sale of the premises, the probate court made an order of distribution of the estate, and the administrator paid over to the plaintiff’s guardian the share of the estate belonging to her!

The court found, as matter of law, that all the proceedings being regular, and the guardian of the plaintiff having received the plaintiff’s share of the proceeds of the sale of the premises, the plaintiff could not recover. In this we think the court was not in error. The petition for the sale set forth that “the condition and location of the premises is such that they cannot be partitioned and distributed among the heirs without great injury to the same, * * * and that it is necessary, and for the interest of the persons interested, that the same be sold for the purpose of distribution.” It is provided, among other things, by section 6050, 3 How. Stat., that: >

“When a person shall die intestate, and it shall be shown to the satisfaction of the probate judge having jurisdiction of the case that it is necessary, or for the interest of the persons interested in the estate of such intestate, to sell the real estate of such intestate person for the purposes of distribution, the administrator may be licensed to sell the real estate of such person in the same manner and upon the same terms and conditions as ,are prescribed in said chapter in the case of a sale for the payment of debts.”

.Mrs. Ann Wheelock died intestate. The petition for sale was in form a sufficient compliance with this statute to give the probate court jurisdiction to order the sale. The order of confirmation was duly entered after the sale, and the probate court, under section 6045, 3 How. Stat., was authorized to enter it if it were found that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or, if disproportionate, that a greater sum could not be obtained. It must be presumed that these facts were ascertained by the probate court before the order of confirmation. Such deeds are prima facie evidence of the regularity of the proceedings required by law anterior to the making thereof, and of the authority of the administrator to execute the same. 2 How. Stat. § 5678. We find nothing in this record showing that the sale was not fairly conducted, or that the amount bid was disproportionate to the value, even if that question were an open one in this collateral attack. It is true, as claimed, that no guardian ad litem was appointed for the plaintiff prior to this sale; but she had a general guardian, who acted for her, and who, under section 6323, 2 How Stat., was fully authorized to do so, where no other guardian was appointed. Such general guardian may join in and assent to a partition of the estate, by virtue of section 6325. It was found to be for the best interests of the parties that the estate should be sold, instead of partitioned, and the order was so made. The guardian acquiesced in this, and accepted for the ward her share of the proceeds. The ward is not now in a position, as shown by this record, to assert title to the lands. The defendants were purchasers in good faith, and had a right to rely upon the order confirming the sale. Averill v. Jackson City Bank, 114 Mich. 20.

Some question is raised upon the requests for further findings in the case, and the exceptions to the refusal. We find nothing in that question calling for discussion.

The judgment is affirmed.

The other Justices concurred.


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    SMITH v. TOWNSHIP OF WALKER.
    1. Defective Highways — Negligence—Pleadings and Proofs.
    A claim that a township was negligent in not giving notice to travelers of a defect in a highway is not within a declaration which counts merely upon a failure to repair after having knowledge of the defect.
    2. Same — Washout—Drowning of Horse — Proximate Cause.
    A hole in a highway three or three and one-half feet deep, caused by a washout, is not the proximate cause of the drowning of a horse which slips back and falls into the hole in attempting to break through ice which has formed upon the water flooding the highway, but for which it could proceed in safety.
    3. Same — Contributory Negligence.
    One who urges his horse over a highway covered with water up to the horse’s knees, and increasing in depth as he proceeds, and upon which ice two or three inches thick has formed, is guilty of such contributory negligence as will preclude a recovery for the drowning of the horse in a washout, — especially if he makes no particular effort to save the horse after it falls into the washout.
    Error to Kent; Grove, J.
    Submitted April 8, 1898.
    Decided May 6, 1898.
    Case by Inman Smith against the township of Walker to recover the value of a horse drowned on defendant’s highway. From a judgment for plaintiff, defendant brings -error.
    Reversed.

      Wolcott & Ward, for appellant.

      Watkins & Ransford, for appellee.
   Long, J.

This action was brought to recover the value ■of a horse which was drowned on the public highway in defendant township. It was claimed that this highway was out of repair, and that defendant, after notice or knowledge of such defect, failed to repair the same.

The highway extends northward from the city of Grand Rapids parallel with Grand river, and, on account of its proximity to the river, and the low and flat nature of the .ground,-is overflowed in various places in times of high water. The accident occurred on the afternoon of January 14, 1897. For several days prior to this the weather had been warm, and there had been continuous rains, and on the morning in question it commenced to freeze. Mr. Thomas Hart was in plaintiff’s employ, and was driving plaintiff’s team on the way from Grand Rapids to plaintiff’s home. Upon reaching this flat piece of ground, he found it considerably overflowed, and ice from two to three inches thick formed upon it. He drove into the water, and as his horses advanced they would break through the ice. After advancing for several wagon lengths, the water was up to the knees of the horses. It apparently grew deeper as they advanced, and suddenly the horses stepped into a washout. They reared upon the ice with their forefeet, and the ice giving way let them into the hole. In the struggle one of the horses reared upon the ice, slipped, and fell, pulling the other over, and one was drowned. Just before reaching this hole, the horses hesitated about going on, but the driver whipped them, and compelled them to go forward.

Mr. Mitchell, a witness for plaintiff, passed over the road the second day before the accident. - The water was running over it in two small streams, but he found no holes. The water was then rising. He testified that he again drove over the road about noon of the day of the accident, and found the water still deeper. At this time he found there was a hole about feet deep and 5 to 7 feet across. The water was running over the road. Mr. Bush, another of plaintiff’s witnesses, drove over the road four times on the afternoon of the day before the accident. There was about two feet of water over the road the last time he went, and he found a mud hole at that time about three feet deep. He was driving one horse, and had a half cord of wood on his wagon, and went over safely. Mr. Lamoreaux had driven over the road on the morning of the day, and found a hole there, but not a dangerous one. It will be seen from this testimony, and it was not disputed, that the road was in good condition at the time the rainfall commenced. The water began running over the road two days before the accident, and without dispute made this washout. The water kept rising over the road from the time it commenced until the accident occurred. The notice or knowledge which the township had of this condition is shown by the testimony of the witness Mitchell for plaintiff and of Mr. Lamoreaux for defendant. Mr. Lamoreaux was the overseer of highways of that road district. Mr. Mitchell testified that he saw Mr. Lamoreaux drive over the road on the morning of the day before the accident; that he saw him again shortly before noon of the same day, and asked him about the road, he having heard there was a bad hole in it, and that Mr. Lamoreaux replied that it was not a bad hole, and made some such remark as, “It cuts no ice with our folks.” Mr. Mitchell did not claim that he told Lamoreaux there was a bad hole there, and Mitchell passed over it safely after this talk. Lamoreaux testified that this conversation was some days later, and also that when he passed over the road he found a mud hole, but that it was not dangerous.

The defendant asked the court to direct the verdict in its favor, which request was refused. The court submitted the case to the jury on the questions both of actual and constructive notice. The jury were advised by the court substantially that if the plaintiff’s agent, in the exercise of due care, attempted to pass over the road, and they found that the road was in a defective condition, not fit and safe for public travel, and that the township had actual or constructive notice of its condition, and sufficient time, after such notice, to make the repairs, then the plaintiff was entitled to recover. The jury returned a verdict in favor of plaintiff for the value of the horse.

We think this verdict should not stand. The evidence shows conclusively that the township had no opportunity to make the repairs, even had the overseer of highways found the hole there, as claimed, on the day before. The water was rising, and continued to rise up to the time of the accident.

But counsel for plaintiff contend that the overseer should have given some notice that the way was dangerous. It is sufficient answer to this to say that the declaration does not count on any such negligence.

Aside from this question, we think there was no notice to the township, either actual or constructive, of the dangerous condition of the highway on that day. Mr. Mitchell and Mr. Bush each drove over it after Mr. Lamoreaux did, and Mr. Bush four times with wood. Each time he drove over he found the hole deeper, but of this fact Mr. Lamoreaux was not advised. Lamoreaux had found it safe, and Mitchell had found it safe.

It is apparent that the unsafe condition at the time of the accident was not the depth of the hole. It was then only 3 to 3-2- feet deep. Ice had formed, and the horses, in attempting to spring upon it, slipped and fell. The ice was from 2 to 3 inches thick. The township was in no wise at fault for the rising of the water or the formation of the ice. The hole or washout was not the proximate cause of the injury. But for the water and the ice formed thereon, the horses undoubtedly would have gone through safely, as the others had. The water at the washout was scarcely breast-high to the horses. They could only go through the ice by breaking it, and one of them, attempting to break it, slipped and fell, and could not be made to stand up. A township is liable only, under the statute, for injuries sustained by reason of its neglect to keep its highways in repair, where such neglect is the proximate cause of the injury. The case is governed by Beall v. Township of Athens, 81 Mich. 536; Bleil v. Railway Co., 98 Mich. 228.

Aside from every other consideration in the case, we are satisfied that the plaintiff should not be permitted to recover, as it is shown conclusively that the driver was guilty of negligence. He saw the condition. The horses were urged forward after the water was up to their knees, though they were compelled to go upon the ice, and at every step broke through it. When they stopped, they were whipped forward, the water getting deeper as they advanced. When they reached the washout, they again reared. The ice held for a moment, and one of them slipped and fell. All that was done by the driver was to unhitch the traces, and very little appears to have been done by two other occupants of the wagon, who were with the driver at the time of the accident, to save the horses. It was certainly negligent to attempt to drive them forward under the circumstances here stated.

The court should have directed the verdict in favor of defendant. The judgment must be reversed, and a new trial granted.

The other Justices concurred.


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    JEROME v. WAYNE CIRCUIT JUDGE.

    1. Appeals from Probate Court — Allowance on Petition— Excuse for Delay.
    That one relied upon his attorney to see that an appeal from an order of the probate court was filed in time, and he failed to do so, is a sufficient excuse, within 2 How. Stat. § 6784, providing that if a person, “without default on his part,” omit to prosecute his appeal according to law, an appeal may be allowed on petition.
    2. Same — Affidavit of Merits — Sufficiency.
    An affidavit filed in the circuit court by one who has failed without fault seasonably to prosecute such an appeal, that he has been advised by his attorney, after a full and fair statement of the case, that he has a good defense upon the merits, and believes such advice to be true, without setting up the facts, is not such a showing that “justice requires a revision of the case” as will authorize the allowance of an appeal under the statute.

      Mandamus by Frank H. Jerome and others to compel Joseph W. Donovan, circuit judge of Wayne county, to dismiss an appeal from probate court.
    Submitted April 19, 1898.
    Writ granted May 6, 1898.

      Ed. E. Kane, for relators.

      Fred A. Baker, for respondent.

       Rehearing denied June 28, 1898.

   Long, J.

It appears that the will of James W. Daley was admitted to probate in the Wayne probate court April 20, 1897. On May 1st following, Thomas O. Fitzpatrick et al. took an appeal from such order, but failed to perfect it by filing in the circuit court within 30 days thereafter a certified copy of the record or proceedings appealed from, as required by section 6782, 3 How. Stat., which provides, among other things, that—

“In case the record herein required to be filed in the circuit court shall not be filed in such court within the time herein directed, such appeal shall cease to be of effect, and the order or decree so appealed from shall stand as though such appeal had not been taken.”

The relator Frank H. Jerome was named as executor in the will, and, after the will was allowed in probate court, filed his bond as such executor, and letters testamentary were issued to him. He thereupon entered upon the discharge of his trust. On July 19, 1897, he filed in the probate court the certificate of the clerk of the circuit court that the record of the proceedings in the probate court and the appeal therefrom had not been filed in the circuit court. On February 21,1898, Thomas C. Fitzpatrick et al. filed in the Wayne circuit court a petition for an allowance of an appeal, under the provisions of section 6784, 2 How. Stat., which provides that—

“If any person aggrieved by any act of the judge of probate shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.”

The circuit court allowed the appeal, and this application is for a mandamus to compel the respondent to set aside that order, and dismiss the appeal.

The only allegation in the petition for the allowance of the appeal as to the merits of the case is as follows:

“Your petitioners have been advised by their said attorney, after having made to him a full and fair statement of their case, that they have a good defense upon the merits to the application for the allowance of said will, and your petitioners believe such advice to be true.”

It is shown by the petition that the petitioners relied upon their attorney to see that the appeal was filed in the circuit court within the time allowed by the statute, and that they were in no wise at fault that such papers were not filed. This would be a sufficient excuse, under the rule laid down in Merriman v. Jackson Circuit Judge, 96 Mich. 603, and cases there cited. But the question yet remains whether there was any showing made in the court below that “justice requires a revision of the case.” As was said in that case: “Under this section, something more than an excuse for his default is necessary, and that is * * * that justice requires a revision of the case.” In the present case no facts are shown from which the circuit court could find that justice requires such revision. No facts are set forth, and the only allegation is that above quoted. This, certainly, is not a compliance with the statute. The court must have some facts before it in order to determine that question. In the Merriman Case sufficient facts were set forth so that it was found by this court that the matter was within the discretion of the circuit court, and that that discretion had not been abused. This was also found in Sanborn v. St. Clair Circuit Judge, 94 Mich. 526, and Gorton v. Livingston Circuit Judge, 97 Mich. 562. The rule as to what an affidavit of merits must contain was laid down in Thayer v. Swift, Walk. Ch. 384, and it was said: “It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are.” Mr. Chancellor Walworth, in Meach v. Chappell, 8 Paige, Ch. 135, laid down the rule as follows:

“It is the settled practice of this court, in an affidavit of merits, to require the party to state what such merits are, so that the court may see that the defense is not merely imaginary, and that the defendant may be in a situation to be prosecuted for perjury if he swears to that which he knows to be false.”

Section 6784, 2 How. Stat., above cited, is identical with the Massachusetts act, in that a showing must be made for an allowance of an appeal from probate court that “justice requires a revision of the case.” In Capen v. Skinner, 139 Mass. 190, it appeared that an appeal was sought to be taken from the probate court, and the petition was denied in the circuit. The supreme court affirmed the ruling of the circuit, saying:

“The justice who hears the petition is bound to go further than merely to inquire whether the appellant has a case supported by some testimony which he wishes to present to the court or jury. He is bound to inquire whether, upon the facts proved, substantial justice requires a revision of the decree of the probate court. We do not mean to imply that it is the duty of the presiding justice to try the case fully upon its merits, but he ought to make inquiry so far as to be satisfied that there is a substantial controversy, which ought to be the subject of a full judicial investigation.”

It appears in the present case that the appellants made no contest in the probate court. The showing in the circuit court was not sufficient to warrant the allowance of an appeal. It was not such a showing as the statute contemplates. We do not hold, however, that, where a showing of merits is made, — some facts set forth upon which the circuit judge might fairly pass, — his finding would be disturbed.

The order must issue as prayed, directing the respondent to set aside the order allowing an appeal, and to dismiss the appeal. Relators will recover the costs of this motion against the appellants below.

The other Justices concurred.


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    GRAY v. JOSSELYN
    Contracts — Construction—Insurance Agents.
    Aol insurance company entered, into a five-year contract with a state agent, in which it was agreed that if, during the continuance of the contract, it should allow, “under similar circumstances and conditions,” any other state agent'compensation in excess of that fixed in such contract, he should be entitled to a like increase. Held, that similarity, not identity, of circumstances and conditions, was contemplated.
    Error to Wayne; Hosmer, J.
    Submitted February 2, 1898.
    Decided May 10, 1898.

      Assumpsit by Henry W. Gray, receiver of the United States Mutual Accident Association of New York, against Homer R. Josselyn, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Bowen, Douglas & Whiting, for appellant.

      O. E. Angstman, for appellee.
   Moore, J.

The United States Mutual Accident Association of the State of New York was represented for many years by the defendant as its state agent. This company is now in process of liquidation. Mr. Gray was appointed by the supreme court of the State of New York as its receiver. He claimed that the defendant was indebted to the company for collections made by him, and sued him in justice’s court, where judgment was obtained by plaintiff. An appeal was taken to the circuit court, where the learned judge directed a verdict in favor of defendant. Plaintiff brings the case here by writ of error.

It is the claim of the defendant that a receiver appointed in the State of New York has no power to bring suit in this State. A similar case was before the court in Baldwin v. Wayne Circuit Judge, 101 Mich. 133. . We will not pass upon the question whether to allow this receiver to bring this action would contravene the rights of citizens of this State, because we think the learned judge rightly disposed of the case upon the other branch of it.

The judge instructed the jury as follows:

“At the time of the contract between the United States Mutual Accident Association and the defendant, the testimony shows it was contemplated by the parties thereto that some different rate of compensation greater than was expressed in the written agreement might be afterwards given to the agents occupying a like position with the defendant, and to guard against a continuance of the contract under those circumstances, inasmuch as it was a five-years contract, the following clause was inserted: ‘ If the first party, during the continuance of this contract, shall allow, under similar circumstances and conditions, any other state agent compensation in excess of the above, then the second party shall be entitled to a like increase.’ Now, gentleman of the jury, it is obvious that there could not be another agent whose circumstances were identical; and similarity, rather than identity, must, of course, govern. It becomes a difficult matter for the court, inasmuch as the similarity is not further defined, to say where the similarity ends and dissimilarity begins; but I am constrained to hold that in the case at bar the amount received by the agent Barrows should have been given to the defendant ; and, this being so, the claim, I think, may properly be set off, it being in its nature a liquidated claim, that is susceptible of ascertainment by mere matter of computation; and the amount which he would be entitled to under this phase of the case would exceed the amount which is due, and in his hands, to the corporation.”

There was testimony which showed that the state agent of this company at St. Louis, Mo., was allowed 5 per cent, more commissions on a class of risks than was' allowed defendant, .and this amount would exceed the amount of money claimed to be in the hands of defendant, belonging to the company. There was also testimony showing that the company allowed its state agents at Boston pay for the office rent paid by them. This amount was much more than the amount retained by defendant. It is true that the services rendered by these several agents were not in all particulars identical, but we think the services were of a like character, rendered under similar circumstances and conditions, within the understanding of the parties and the meaning of the words used-in the contract between the company and the defendant, and that a verdict for the defendant was properly directed.

Judgment is affirmed.

The other Justices concurred.


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    HUBBARD v. SHEPARD.
    .Ejectment — Land Contract — Tax Titles — Estoppel—Husband and Wipe.
    Defendant in ejectment, who is in possession of the land under a land contract requiring her to pay taxes, is estopped to assert that a third party has acquired title through her default in the payment of taxes; and such estoppel applies also to her husband, where his possession is in her right, and she has never yielded her right of possession to him.
    Error to Charlevoix; Corbett, J.
    Submitted April 8, 1898.
    Decided May 10, 1898.
    Ejectment by Richard S. Hubbard against Fannie J. Shepard and Elisha H. Shepard. From a judgment for plaintiff' on verdict directed by the court, defendants bring error.
    Affirmed.

      A. D. Cruickshank, for appellants.

      J. M. Harris, for appellee.
   Montgomery, J.

This is an action of ejectment. On the trial the plaintiff showed title derived from the United States, and showed in addition that the defendants held possession under a land contract made by plaintiff to-defendant Fannie J. Shepard, who is the wife of her co-defendant, that the defendants are long in arrears on this contract, and that the plaintiff had given them notice to quit. This contract bore date of February 19, 1889, and contained an agreement by Mrs. Shepard to pay all taxes then unpaid or thereafter assessed. Defendants offered to show that one Kimbark had acquired a title to' the premises on a sale 'of the lands for taxes for the years 1889, 1890, and 1891, and defendant Elisha H. Shepard testified that he had recognized the right of Kimbark. There was, however, no surrender of possession to Kim-bark by Mrs. Shepard, and no actual possession taken by Kimbark. The circuit judge ruled out the evidence of the Kimbark title, and directed a verdict for the plaintiff, and defendants bring error. The only questions presented by brief of defendants’ counsel, and therefore the only ones we need discuss, are, first, whether, in this action of ejectment, Mrs. Shepard is estopped from showing title in Kimbark; and, second, if she is, whether the estoppel applies as well to the defendant Elisha H. Shepard.

Defendants’ counsel admits that the general rule is that a tenant or contract purchaser cannot dispute his landlord’s title, but insists that this rule of estoppel is limited to cases which involve possession merely, and that where the title in fee is claimed, as in ejectment, the tenant may show that the plaintiff has no greater right than that of possession. Counsel cites Jochen v. Tibbells, 50 Mich. 33, and Shaw v. Hill, 83 Mich. 324 (21 Am. St. Rep. 607). These cases deal with an estoppel arising from the relation of landlord and tenant, or purchaser and vendor, and sustain the defendants’ view, that the limit of an estoppel arising from such relations alone is as claimed by defendants’ counsel in this case; but counsel seems not to-have discriminated between an estoppel arising out of that relation simply, and such an estoppel as, in our judgment, should be held to exist in this case. The doctrine of estoppel rests upon the inequity of permitting one to allege the existence of facts which by his own conduct he has induced another to believe do not exist. While there are cases in which an application of this rule works a seeming hardship, and while for this reason the courts are careful to see that all the elements of estoppel exist in a given case, there can be no occasion for hesitancy in applying the doctrine where one attempts to set up a title which can only have an existence because of his own default. In this case it was the duty of defendants to pay the taxes for the years 1889, 1890, and 1891; and yet they attempt here to assert that they did not do so, and that, therefore, a third party has acquired title through their default, which they now seek to assert to defeat plaintiff’s title. The circuit judge was right in holding that Mrs. Shepard could not do this. Dubois v. Campau, 24 Mich. 360, and cases cited in note to annotated edition. Nor do we think that Elisha H. Shepard is in any better position in this respect than his wife. Ward v. Nestell, 113 Mich. 185. His possession was in the right of his wife, and there is no showing that Mrs. Shepard ever yielded her right of possession to him.

Judgment affirmed, with costs.

The other Justices concurred.