text:
    BROPHY v. SCHINDLER.
    1. Mandamus — Townships—Roads and Bridges — Order to Rebuild — Interest of Relator.
    In mandamus to compel township officers to rebuild a certain bridge, which had been maintained for 40 years, where the river over which the bridge was built divided the farms of some of the petitioners, and some of them lived on the opposite side of the river from the school-house, thus requiring their children to go a considerable distance out of their way to get to school, such petitioners had sufficient interest to maintain the proceeding.
    2. Same — Relief Sought — Definiteness.
    Where two adjoining townships disputed as to which one should rebuild a bridge on the dividing highway, a petition in mandamus against the officers of each township, praying that either one or the other of the townships, or both, be compelled to build the bridge, was not defective as too indefinite.
    3. Same — Disputed Rights — Unwarranted Defense.
    An unwarranted contention by the officers of a township, whose duty it is to maintain in repair a certain bridge, that another township should share in the expense, does not, on the theory that mandamus will only issue where the duty sought to be enforced is clear and undisputed, render mandamus an inappropriate remedy to compel such official action.
    4. ■ Townships -Town-Line Road — Maintenance -Allotment-Irregularities — Long Usage — Ratification.
    ■Where an allotment of a town-line highway, as made by the highway commissioners of the two adjacent townships, has been acted upon for a long period of time, such action of the commissioners, though possibly irregular in the first instance because of their not meeting pursuant to notice, will be held to have been ratified by the townships.
    5. Same — Statutes—Repeal.
    Rev. Stat. 1846, chap. 25, § 17, relating to the allotment of town-line highways by the commissioners of the adjacent townships, was not repealed by Act No. 164, Sess. Laws 1857, covering like subject-matter, and providing for the repeal of contravening acts, but containing no reference to the allotment of highways theretofore laid out.
    6. Same — Bridges—Rebuilding—Necessity.
    An objection to mandamus to compel a township to rebuild a certain bridge, on the ground that the court has no power to compel the construction of a bridge against the determination of the local authorities as to its necessity, is without force, where the original bridge was maintained by the township for many years pursuant to a determination by the proper authorities, and no proceedings have been taken to discontinue the highway of which it formed a part.

      Certiorari to St. Clair; "Whipple, J.
    Submitted December 4, 1900.
    Decided April 25, 1901.

      Mandamus by Wesley W. Brophy and others against John Schindler, Timothy O’Donnell, and others, being,, respectively, the highway commissioners of Casco and Columbus townships, and the members of the township boards, of such townships, to compel the rebuilding of a, town-line bridge. From an order granting the writ as to-the respondent officers of Casco township, such respondents bring certiorari.

    Affirmed.

      Joseph Walsh, for relators.

      John B. Mcllwain and A. E. Chadwick, for appellants.

      Avery Brothers, for respondent officers of Columbus, township.
   Moore, J.

The relators filed a petition for a writ of mandamus in the St. Clair circuit court against the respondents and appellants the highway commissioner and township board of the township of Casco to compel them to build a bridge on the town line between the townships of Casco and Columbus. The respondents filed a demurrer to the petition. The relators then filed an amended petition against the same officers of Casco and the highway commissioner and township board of Columbus, alleging a duty on the part of one or both of said townships to build the bridge, asking the court to determine where the duty exists, and to enforce the same by mandamus. Each of the respondents filed an answer to said petition. The respondent Columbus denied any duty on its part to build the bridge, claiming it became the duty of Casco to maintain the bridge under an allotment entered into between the townships of Casco and Columbus in the year 1857. The respondent Casco filed an answer, claiming all benefit of the demurrer interposed to the original petition; denying any duty on its part to solely maintain the bridge; alleging, if any agreement exists, it was never lawfully executed, and has been repudiated by Casco for upwards of 40 years; and that the cost of constructing a suitable bridge will be upwards of $1,500, and no provision has been made for the expense thereof; and also filed a reply answer to the answer of Columbus, setting up that the only agreement signed by the commissioners of Casco was one making it the joint duty of both townships to build and maintain the bridge, and that the agreement set up by Columbus is false, fraudulent, and void. The relators then asked that issues might be framed. Respondent Casco objected to the framing of any issue. These objections were overruled. Issues of fact were then framed. The case was tried by the court without a jury. A reference to the accompanying plat will help to understand the situation. The trial judge found that a public highway had existed between the two townships for more than 40 years; that prior to 1884 a bridge had been maintained on said highway across Belle river, and that said highway was an important traveled highway from 1857 to 1884, when the bridge became unfit for travel. A dispute arose between the two towns as to whose duty it was to rebuild it. He also found the following agreement was made:

“Resolved, by the commissioners of highways of Columbus and Casco that the public highway on the line of said townships running east and west between said townships shall be districted as follows, to wit: The township of Casco shall keep in repair the first half mile of said highway, commencing at the northeast corner of section No. 1 of Casco, running west to the quarter post of section 1 of Casco. The township of Columbus to take one-half mile commencing at the said quarter post of section No. 1 of Casco and thirty-six of Columbus, running west to corner of said section one (1) and thirty-six (36). The township of Casco to take one-half mile' commencing at the northeast corner of section two (2) of Casco, running west on said township line to the quarter post of said section two (2). The township of Columbus to take one-half mile from said quarter post to the northwest corner of section two (2) and the southwest corner of section thirty-five (35). The township of Columbus agrees to take onehialf mile commencing at the southeast corner of the west half of southeast quarter of section thirty-two (32) of Columbus, running west one-half' mile. The township of Casco to take all of the remainder of the said highway on said line.
“It is further understood by the said commissioners of highways that Casco shall build said bridge over Belle river at or near Robert Wilson’s where the said road on said line crosses Belle river. The said township of Columbus agrees to apply all of the nonresident highway money in said road district number twelve (12) of Columbus to the building of said bridge: Provided, the said nonresident highway money does not exceed one-half of the expense of the building of said bridge.
“It is further agreed that Casco shall assume the repair of said bridge at all times. The above money of Columbus to be drawn from the treasurer of Columbus by the highway commissioners of Casco.
“Given under our hands this 11th day of May, A. D. 1857.
“Henry S. Wheeler,
“Rochester Tapp an,
“Commissioners of Casco.
“Michael Duchene,
“Shubal Bullock,
“Commissioners of Columbus.”

The court found that the agreement was a lawful agreement, duly entered into, and that it had been observed from 1857 until about 1884 by each of the townships.

The court says:

“It does not appear that the three highway commissioners of each town met pursuant to any notice calling a meeting of such commissioners for the purpose of allotting "the highway between the towns of Columbus and Casco, but it does appear that on May 11, 1857, the agreement set out in the answer of Columbus was entered into by four of the commissioners, two from each town; that the-same was signed.by them on that day, and afterwards, entered at large on the town record of each town; and that such agreement has been carried out by each town until since the bridge was destroyed, in 1884, when Cascorepudiated its liability under it. Columbus had never-ceased to claim under it, and still claims said agreement, is in force. It also appears by an entry in the town record of Casco that April 4, 1898, the electors of that town instructed the town board ‘to by all means break or set aside the old agreement made by the commissioners of Casco and Columbus about the building of and keeping in repair the bridge over Belle river on the line aforesaid.’ My conclusion from the foregoing is that the town of Casco ratified the agreement of May 11, 185?, and that it was and is of binding force.”

The court also found that a bridge could be built over the river at this point for less than $1,000; and that, in addition to the interest which the general public have in the rebuilding of this bridge, relators have an individual and special interest, which authorizes them to file the petition. The court directed that a mandamus issue compelling the township of Casco to build the bridge. A motion for a new trial was made by Casco, asking leave to place in the record a certified copy of an allotment, made in 1837 of this same town line, by which both townships assumed the burden of maintaining this bridge, and for a rehearing thereon, which was denied solely because the matters involved in the motion were deemed immaterial; and respondent then filed written exceptions. The respondent Casco has brought the case to this court by-writ of certiorari.

Respondent contends:

‘ ‘ This proceeding should have been instituted by the prosecuting attorney. 13 Enc. PI. & Prac. 627. The general rule is that a private individual can apply for a writ of mandamus only in a case where he has some private or particular interest to be subserved, or some particular right to be preserved or protected, by the aid of this process, independent of that which he holds in common, with the public at large; and it is for the public officers exclusively to apply where the public rights are to be sub-served,” — citing People v. Inspectors & Agent of State Prison, 4 Mich. 187; People v. Green, 29 Mich. 121; Loomis v. Rogers Township Board, 53 Mich. 135 (18 N. W. 596); Locke v. Wayne Circuit Judge, 62 Mich. 408 (28 N. W. 917); Sterling v. Regents of University of Michigan, 110 Mich. 369 (68 N. W. 253, 34 L. R. A. 150); People v. Regents of University of Michigan, 4 Mich. 98; People v. Supervisors of Kent Co., 38 Mich. 424; People v. Board of State Auditors, 42 Mich. 422 (4 N. W. 274); Smith v. Mayor, etc., of Saginaw, 81 Mich. 123 (45 N. W. 964).

The respondent contends the petition for mandamus is not sufficient to confer jurisdiction upon the court for three reasons:

1. The relators, being private individuals, did not show any special interest other than that in common with the public.

2. The petition does not allege that any provision has been made for the expense for such a bridge.

3. The petition alleges the duty to build the bridge in the alternative, as either the duty of Casco or Columbus, or both, and therefore does not point out any clear, legal duty resting upon Casco,, enforceable by mandamus.

In 2 Stevens, Mich. Prac. § 459, it is said:

“A private individual can properly apply for a writ of mandamus only in a case where he has some private or particular interest to be subserved, or some particular right to be protected, by the aid of that process, independent of that which he holds in common with the public at large. The rule which rejects the intervention of private complainants against public grievances is, however, one of discretion, and not of law.”

In this case it is shown that at least some of the relators suffer not only in common with the general public, but that they suffer special injury because of the neglect to rebuild this bridge, and that they have a special interest in its construction. This bridge is part of a public highway which has been in existence more than 40 years. No part of the highway has ever been vacated. The river over which this bridge was constructed divides the farms of some of the petitioners, so that, to go to his work, the farmer has to travel a long distance. Some of the petitioners live on one side of the river, while the school-house to which they send their children is on the other side of the river. To get the children to school, it is necessary either to use a boat, or to travel much farther than it is practicable for them to do in all kinds of weather. We think the petitioners have shown such an interest as entitled them to file this petition. See Giddings v. Secretary of State, 93 Mich. 4 (52 N. W. 944, 16 L. R. A. 402), where some of the cases are reviewed.

It is claimed the petition is not sufficiently definite, as it prays that the authorities of the township of Casco or of Columbus, or both, be compelled to build the bridge. We think there is no force in this contention. It is claimed, not only that there is no obligation to build the bridge, but the township of Columbus claims, because of its agreement with Casco, it is not bound to pay any portion of the expense, while the latter township claims Columbus should bear half the expense. The petition was framed to meet these conflicting claims, and to have the court pass upon them. The petition is not faulty for want of definiteness. East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 204 (58 N. W. 1012).

It is said mandamus issues only to compel the recognition of a clear, legal right, or the performance of a clear, legal duty, and will not issue where the right or duty is disputed or doubtful; citing 13 Enc. Pl. & Prac. 496; People v. Branch Circuit Judges, 1 Doug. 319; People v. Wayne Circuit Judge, 19 Mich. 296; Pack v. Supervisors of Presque Isle Co., 36 Mich. 377; Loomis v. Rogers Township Board, 53 Mich. 135 (18 N. W. 596); Post v. Sparta Township Board, 63 Mich. 323 (29 N. W. 721); Van Akin v. Dunn, 117 Mich. 421 (75 N. W. 938). Counsel do not suggest what remedy is open to the relators if mandamus is not the proper remedy. In 2 Stevens, Mich. Prac. § 458, it is said:

“Where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, mandamus issues to enforce the specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of the writ. Courts of law, which issue this writ, do not, in deciding such questions, take into account remedies in equity. Such remedies may affect the exercise of discretion in allowing the writ, but they cannot affect the jurisdiction.”

In this case we think it has been made clearly to appear that it is the duty of the township of Casco to build and maintain this bridge. Its officers have refused to do so. It is a proper case in which to compel relief by writ of mandamus.

It is said that, as the record does not show the commissioners met pursuant to any notice calling a meeting for the purpose of allotting the highway, the allotment is illegal and void; citing People v. Nankin Highway Com’rs, 14 Mich. 528; People v. Caledonia Highway Com'rs, 16 Mich. 63; Township of Taymouth v. Koehler, 35 Mich. 22. The first two of these cases were cases where the highway had been discontinued, and proceedings at once instituted to question the validity of the discontinuance. In the other case the validity of a contract to build a bridge was involved. In the last-named case it is said:

“While, therefore, there should be proper written evidence on file or of record showing that the requisite statutory preliminary requirements to a legal meeting had been complied with, and showing that such a meeting had been held, and the proceedings thereof, courts should bear in mind that, either from a lack of experience or otherwise, it frequently happens that the persons whose duty it is to give notice of and keep a record of such meetings fail to keep the files and records of their office in a clear and intelligible manner, and that to require the utmost strictness in this respect- would result in many cases in rendering void the proceedings of such quasi corporations. Their proceedings, therefore, should be liberally construed, and all proper intendments made in favor of their regularity.”

It is also said:

“There may, in certain cases, be a ratification by the corporation of an unauthorized contract. It must, however, in such cases, appear that the contract was one which could in the first instance have been legally entered into by the corporate authorities.”

In this case the original agreement between the commissioners, made in 185?, was introduced in evidence. This agreement was also entered at large in the records of both townships. The circuit judge also found the two townships had acted under this agreement until 1884. We all know how difficult it might be after such a lapse of time to show the regularity of all the proceedings leading up to the allotment. If the commissioners had the authority to make the allotment at a meeting properly called for that purpose, we think their action in making such allotment, though irregular in the first instance, could be afterwards ratified by the parties in interest acting thereunder for a long period of time. If, after so long an interval of time has elapsed, the acts of commissioners are to be discredited because of a failure to enter upon the records all of the preliminaries leading up to the action of the commissioners, the result would be unfortunate. We think the court was fully justified in finding this agreement was in fact made, and that, even though it does not affirmatively appear that a notice of the meeting was given, the agreement, having been acted upon so long, must be deemed to have been ratified. See Sharp v. Township of Evergreen, 67 Mich. 443 (35 N. W. 67); Wrought-Iron Bridge Co. v. Township of Jasper, 68 Mich. 450 (36 N. W. 213).

It is said that under Act No. 164 of the Session Laws of 1857 the commissioners had no power to make a reallotment of an existing1 and traveled highway. It is claimed this act repealed section 1070, 1 Comp. Laws 1857. Section 1070, which is also section 17, chap. 25, Rev. Stat. 1846, reads as follows:

“All highways heretofore laid out upon the line between any two townships shall be divided, allotted, recorded, and kept in repair in the manner above directed.”

The title of Act No. 164, Sess. Laws 1857, is broad ■enough to repeal all of chapter 25, Rev. Stat. 1846. The body of the act does not in terms repeal section 1070. There is no reference in Act No. 164 to the allotment of highways theretofore laid out. All that is said about the repeal of existing laws is as follows: “All acts or,parts -of acts contravening the provisions of this act are hereby repealed.” There is nothing -contained in section 1070 which is in contravention of the provisions of Act No. 164, -and we think the circuit judge wag right in holding its provisions were not repealed.

Counsel say the court has not the power to compel the ■construction of this bridge against the determination of "the commissioner of highways and of the township board not to construct it, and that the necessity for the bridge must be determined by the local authorities, and not by -the courts. If it were a question of the necessity of constructing a bridge in the first instance, it is possible coun-' sel would be right in their contention; but the necessity of building a bridge at this point was decided long ago, and hy the proper authorities. A bridge was built and maintained for a great many years. It was a part of the highway. No steps have ever been taken to vacate the highway. This portion of the highway was allotted to Casco. Section 3443, 1 Comp. Laws 1897, makes it the duty of a township to keep its highways in a condition reasonably safe and fit for travel. Section 4129, 2 Comp. Laws 1897, provides that the commissioner of highways shall have the care of the building, rebuilding, and repairing of "the bridges in his township. Act No. 55, Pub. Acts 1899, provides that, in cases involving expenditures of more than $50, the commissioner shall submit the proposed expenditure to the township board. The record discloses that the ■expenditure called for is within the amount which may be expended by the commissioner and the township board. They have refused to make the expenditure, undoubtedly because of the dispute which has arisen between these two townships. The practical effect of this action is to vacate a highway which has never been properly discontinued. This they cannot do.

Other questions are raised by counsel, but we do not deem it necessary to discuss them, because they are disposed of by what we have already said. The relators are entitled to have this bridge rebuilt. Bigelow v. Brooks, 119 Mich. 208 (77 N. W. 810); Oxby v. Board of Sup’rs, 124 Mich. 463 (83 N. W. 132). It is the duty of the township of Casco to rebuild it.

Judgment is affirmed.

The other Justices concurred.

       See next page.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    PALMER v. SMITH.
    1. Fraudulent Conveyances — Oral Gift of Vessel — Validity.
    Under Rev. Stat. U. S. § 4192, providing that no bill of sale or conveyance of any vessel shall be valid against any persons other than the grantor and those having notice thereof unless the same be recorded in the office of the collector of customs, an oral gift of a vessel is void as to bona fide creditors of the donor.
    2. Same — Husband and Wife.
    Property purchased by a wife with the proceeds of an insurance policy on other property conveyed to her by the husband in fraud of his creditors may be subjected in equity to the claims of such creditors.
    3. Same — Insufficiency of Remaining Property.
    Upon a review of the evidence, held, that a voluntary conveyance by a husband to his wife could not be sustained as against his creditors on the ground that he retained sufficient property to satisfy their claims.
    Appeal from Wayne; Frazer, J.
    Submitted November 14, 1900.
    Decided April 25, 1901.

      Bill by Jonathan Palmer, Jr., as trustee in bankruptcy of Wright D. Smith, against Lillian A. Smith, to reach property alleged to have been conveyed in fraud of creditors. Prom a decree for complainant, defendant appeals.
    Affirmed.

      Bacon & Yerbes, for complainant.

      Ignatius J. Salliotte, for defendant.
   Montgomery, C. J.

This is a bill filed by the complainant, as trustee in bankruptcy of Wright D. Smith, to reach assets consisting of a house and lot in Ecorse, and an interest in the steam barge Porter Chamberlain, claimed to have been fraudulently conveyed by the bankrupt to his wife, the defendants

The schedule of creditors attached to the petition of Wright D. Smith shows an indebtedness to various parties aggregating $3,385.67. All of this amount, except $1,500, due P. W. Wheeler & Co., was incurred prior to the 26th of October, 1896, and the indebtedness to Wheeler & Co. was incurred March 3, 1897. On October 26,1896, Wright D. Smith conveyed to his wife, the defendant in this case, the real estate described in the bill of complaint, situated in the township of Ecorse, Wayne county, Mich., for a consideration named in the deed of one dollar and other considerations; and it appears from the testimony of the defendant in this case that no consideration whatever was paid by her for said property.

On July 4, 1894, the defendant was married to Wright D. Smith; and she testified that, immediately after such marriage, Wright D. Smith handed to her the keys of the steam yacht Contaluta, and told her that the yacht was hers. Both the defendant and. Wright I). Smij;h testify that no bill of sale or other writing was ever made or recorded conveying this steam yacht to the defendant. The recorded title to the'yacht Contaluta remained in Wright D. Smith until the,3d of March, 1897, when he executed a bill of sale of the yacht to N. D. Carpenter, for a consideration named therein of $10,000, which bill of sale was that day recorded in the customs office in the city of Detroit. On the same day, F. W. Wheeler & Co. conveyed to Wright D. Smith, by bill of sale, the steam barge Germania, for a consideration named therein of $15,000, which consideration consisted of the steam yacht Contaluta, and a piece of land in Windsor worth about $1,500, and a note executed by McLarty and Wright D. Smith to F. W. Wheeler & Co. for $1,500, which note constitutes a part of the debts' mentioned in the list attached to the schedule of creditors. On March 5, 1897, Wright D. Smith conveyed to the defendant the steam barge Germania for a consideration stated in said conveyance of one dollar; and defendant testified that she never paid her husband anything for this transfer. In the winter of T898 and 1899 the steam barge Germania was burned, and the defendant collected the money for the insurance, amounting to about $9,000, and with this purchased the barge Porter Chamberlain, three-quarters of which is now owned by the defendant, and one-quarter by McLarty.

It appears from the testimony of the defendant and Wright D. Smith that the house and lot in Ecorse, which was occupied by the defendant and her husband as a homestead, the steam yacht Contaluta, and the lot in Windsor comprised all the property belonging to the said Wright D. Smith in 1896 and 1898, except his interest in the Kola Medicine Company. This company was capitalized at the sum of $25,000, of which $19,500 was claimed to have been paid in, and of which amount Wright D. Smith testified he had contributed $9,500. On October 26, 1896, the same date on which Wright D. Smith conveyed his property to his wife, a chattel mortgage was executed by the Kola Medicine Company to Wright D.* Smith for the sum of $9,500, which mortgage was recorded in the city cleric’s office in the city of Detroit on the day it was executed, and appears, according to the testimony of Wright D. Smith, to have been given for $6,000 more than was due from the company to him at that time. On November 23, 1896, the mortgage for $9,500 was discharged, and another mortgage executed by the Kola Medicine Company to Wright D. Smith, for the sum of $4,183, which mortgage was recorded on the same day in the office of the city clerk of the city of Detroit. On March 27, 1897, this mortgage was foreclosed, and bid off to Charles P. Collins, at the request of Wright D. Smith, for the sum of $3,500, no part of which was paid. On April 13, 1897, Collins conveyed this property to Wright D. Smith, by bill of sale, for a consideration therein named of $3,500, which bill of sale was filed on the same day in the office of the city clerk of Detroit, at 10:55 a. m.; and on the same day Wright D. Smith executed to his mother-in-law, Anna M. Krome, a bill of sale of the same property, for a consideration therein named of $3,500, which bill of sale was recorded in the office of the city clerk of Detroit on the same day, at 10:56 o’clock a. m., one minute after the recording of the bill of sale from Collins to Smith. Smith testifies that, at the time of the conveyance of this property by him to Mrs. Krome, it was worth about $4,100, and that she paid him for this property the sum of $1,500; $í,000 being his note held by her, and $500 in cash.

The circuit judge entered a decree subjecting both items of property to the claims represented by complainant.

But two questions are discussed in the brief of defendant’s counsel: First, whether the oral gift of the Contaluta is good as against creditors, or, rather, whether it can now be attacked; and, second, whether, at the time of this transfer, Wright D. Smith had available property sufficient to satisfy his creditors. Rev. Stat. U. S. §§ 4170, 4192; Haug v. Bank, 95 Mich. 249 (54 N. W. 888).

We are satisfied that the circuit judge reached the correct conclusion as to the main question. Substantially all the remaining property of Wright D. Smith consisted of stock in, or liens upon the assets of, the Kola Medicine Company. The testimony as to the value of this property at the time of the transfer is very unsatisfactory; but enough appears to show that the business had been run at a loss, and it is significant that on the 13th day of April, 1897, about a month after the last conveyance, the entire business, which had at this time vested in Wright D. Smith, was sold for $1,500, of which $1,000 was an old debt.

Decree affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    GRAND LODGE OF ANCIENT ORDER OF UNITED WORKMEN v. FISK.
    1. Mutual Benefit Associations — Beneficiaries — Persons Eligible.
    Under the constitution of a mutual benefit society, providing that the beneficiary should be a member of the family of the insured, or a person related to him by blood, the grandchildren of a sister of the insured were eligible, notwithstanding they were to take through a trustee.
    3. Same — Change of Beneficiary.
    A provision in the constitution of a mutual benefit society that any member “may” change his beneficiary “in the following manner, viz., he shall ” comply with specified formalities, is mandatory, and a compliance by the member essential to effect such change, in the absence of circumstances rendering the same impossible.
    3.'Same — Designation by. Will.
    Thus, where the constitution contained such provision, and also provided that, if, the beneficiary should die during the lifetime of the member, the benefit should be paid to the latter’s heirs; and the member, a few days after the death of his beneficiary, executed a will ,by which he sought to dispose of the benefit, and, though he lived eight months thereafter, made no attempt to change the beneficiary in the manner prescribed by the constitution, the certificate being found among his effects after his death, ^-held, that his heirs were entitled to the fund as against the legatee.

      Appeal from Wayne; Frazer, J.
    Submitted December 7, 1900.
    Decided April 25, 1901.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Charles H. Fisk, executor of the last will and testament of James Lount, deceased, Catherine McCall, trustee under said will, and Herbert J. Lount, to determine the right to the proceeds of a benefit certificate. From a decree in favor of.defendant McCall, defendant Lount appeals.
    Reversed.

      Thomas T. Leete, Jr., for complainant.

      Washington I. Robinson, for defendant McCall.

      Clark, Durfee, Allor & Marston, for appellant.
   Hooker, J.

The Ancient Order of United Workmen is a mutual benefit society. Section 1§, art. 5, of the constitution, provides:’

“Each and every member shall designate the person or persons to whom the beneficiary fund due at death shall be paid, who shall, in every instance, be one or more members of the family of the member, or some person or persons related to him by blood, or who shall be dependent upon him.”

Sections 16 and 17 are as follows:

“Sec. 16. If one or more of the beneficiaries shall die •during the lifetime of the member, the surviving beneficiary or beneficiaries shall he entitled to the benefit equally, unless otherwise provided in the certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction, the "benefit shall be paid to his heirs at law, and, if there be none such, then the benefit shall revert to the beneficiary ■fund of the grand lodge.
“Sec. 17. Any member desiring to change his beneficiaries may do so in the following manner, viz.: He shall fill out the blank form on the back of his beneficiary •certificate authorizing the change. He shall have his signature attested by the recorder of his lodge, and the seal of-the lodge attached thereto. When this is done he shall deliver his beneficiary certificate to the recorder of his lodge, together with a fee of fifty cents. The recorder shall forward the said certificate and fee to the grand recorder, who shall make a record of the change on the books of the grand lodge, and shall issue a new certificate-in lieu thereof, payable as directed on the back of the surrendered certificate. The new certificate shall bear the same number as the old one, which shall be safely filed ' and preserved.”

James Lount was a member of the order, and held a certificate for $2,000, payable to his wife. She died, and a few days later he made a will, by the terms of which he gave all of his real estate to Herbert J. Lount, his grandson and only heir. The will provided further:

‘ ‘ I give and bequeath to Catherine McCall, wife of my nephew, Frederick W. McCall, as trustee for the children of said Catherine and Frederick W. McCall, all personal property and money that shall remain after the payment of the above legacies, including all notes, bills, and insurance policies, and the proceeds thereof. It is my will that the said Catherine McCall shall have the use of and income from the said property and moneys during her life, and that at her death the principal thereof shall go and be paid to the children of said Catherine and Frederick W. McCall, share and share alike.”

Mr. Lount died on February 13, 1899, and both Herbert J. Lount and Mrs. McCall claimed the amount of the benefit, whereupon the order filed this bill of inter-pleader. An interlocutory decree for the complainant was made, and a hearing was had between the defendants. The evidence shows that the certificate was found among the effects of the testator.

Upon the part of Herbert J. Lount it is contended that the will was ineffective to transfer the certificate, for the reasons:

1. That it could only be lawfully transferred in the method pointed out in section 17, above quoted.

2. That the legatees were not persons to whom it was-competent to transfer the certificate, under the terms of the constitution of the order.

We-understand that the beneficiaries for whom Mrs, McCall was to receive this fund were the grandchildren of testator’s sister, and were therefore persons “ related to him by blood,” and eligible to receive this fund, under section 15 of the constitution of the order. The fact that it was to be put in the hands of a trustee should not deprive them of it.

It is urged that the court should hold that the attempted transfer by will is invalid, and that such certificate could be transferred in no other manner than that pointed out in section 17 of the charter. We have already seen that the constitution provides for a change of beneficiary. The language is, ‘ ‘Any member desiring to change his beneficiaries may do so in the following manner.” The manner is then prescribed; i. e., he shall fill out a blank on the back of the certificate; he shall have his signature attested, by the recorder of the lodge, and the seal attached; he shall then deliver the certificate to the recorder, with a fee. After these things are done, a new certificate issues. It has been held that this provision is directory. Where a by-law provided that “ members may at any time, when in good standing, surrender their certificate, and have a new one issued, payable to such beñeficiary or beneficiaries, dependent upon them, as they may direct, upon payment of a certificate fee of fifty cents,” a member took a policy payable to his parents, and subsequently made a will bequeathing the proceeds to his wife and children, and soon afterwards died. The court said:

“A method by which he [the member] may accomplish it [the change in beneficiaries] to the satisfaction of the order is pointed out, * * * but we do not consider this as exclusive of all other ways of effecting the same object. The design of this section is to protect the interests of the corporation. The company are entitled to know who are the parties entitled to the benefit money, and this is an effectual and certain means of giving that information. But, like all such provisions in the by-laws of private corporations, it may be waived at the option of the corporation, being for its benefit alone.” Splawn v. Chew, 60 Tex. 532.

In Manning v. Ancient Order of United Workmen, 86 Ky. 136 (5 S. W. 385, 9 Am. St. Rep. 270), the question arose in this way: A member had a certificate issued, payable to his brother, and left it in charge of his (subordinate) lodge. Upon marriage he inclosed his dues to the proper officer, with a written request to send policy made out to Mrs. Josie A. Manning, his wife. A law of the order provided:

“Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by the payment to the supreme or grand lodge of the sum of fifty cents; but no change of direction shall he valid or have any binding force or effect until said change shall 'have been reported to the supreme or grand recorder, the old certificate, if practicable, filed with him, and a new beneficiary certificate issued thereon.”

The fee not being paid, the proper officer wrote to the member to forward it, but he died without doing so. The court held that a certificate issued after his death to Mrs. Manning was valid, saying that, “if the lodge saw fit to waive these formalities, it did not lie in the mouth of a third party to complain.”

The case cited from Texas is confessedly one of first impression, and, as said in that case, such authorities are few. We have found only these two cases that distinctly so hold. Upon. the other hand, there are many which hold that the provision is a material part of the contract, and mandatory, and that an attempt by a member to make a change in beneficiary in any other than the designated manner is wholly ineffectual. In Kansas a statute authorized the issue of a new certificate to a nominee of the member on proof by affidavit of the death of the original beneficiary. A member undertook to dispose of the benefit by will, and it was held ineffective. The court field that the contract was made in contemplation of the statute, and applied the maxim, “Hxpressio unius est exclusio alteriusj” adding, “In no event was it payable to him, nor could it become a part of his estate; and, having no interest in the fund, what was there for him to bequeath?” Olmstead v. Benefit Society, 37 Kan. 93 (14 Pac. 449). See, also, Titsworth v. Titsworth, 40 Kan. 571 (20 Pac. 213).

In the case of Renk v. Herrman Lodge, 2 Dem. Sur. 409, a member, just before his death, gave the following direction:

To Herrman Lodge, etc., Officers and Members: Please take notice that I do hereby revoke the direction .given in my benefit certificate in reference as to whom the money should, after my death, be paid, and I do hereby order and direct that the money be divided as directed by me in my last will and testament, executed by me on the ■17th of October, 1882.”

This direction was signed by the member. The court field that it and his last will were inoperative and ineffectual; that the change could only be made by a compliance with the terms of the by-laws.

A certificate was payable to the wife or to the children of the member, or, if he left neither wife nor children, to such person “as he may have formally designated to his ■said lodge prior to his decease.” He left neither wife nor ■children. By his last will he designated his brother as the beneficiary of the insurance; but the court held that this was not such a designation as was contemplated by the contract, and that the fund lapsed to the society. Hellenberg v. District No. 1, I. O. B. B., 94 N. Y. 580; Thomas v. Thomas, 60 Hun, 382 (15 N. Y. Supp. 15), 131 N. Y. 205 (30 N. E. 61, 27 Am. St. Rep. 582); Rollins v. McHatton, 16 Colo. 203 (27 Pac. 254, 25 Am. St. Rep. 260).

A contract provided that the fund should go to certain persons in the order named, “ unless otherwise ordered in writing by the deceased member; such order to be signed by two witnesses and acknowledged before a justice of the peace.” The member left a will by which he attempted to dispose of the fund. It was signed by two witnesses, but was not acknowledged by a justice of the peace, and it was held to be inoperative. The court said:

"The contract does not expressly allow the power of' appointment to be exercised by an order executed in a manner deemed by a court or jury equivalent in utility to-the prescribed form. The object of the association is the-payment of a certain amount of life insurance after the death of each member; and it may reasonably be inferred, that, for a substitutional appointment, a written and acknowlédged order, signed by two witnesses, is required, not merely as evidence satisfactory to the payor, but as-such a protection of each member, and the payees named, in the contract, as the law provides for an owner of property and for his heirs in the execution of a will or codicil. It might be claimed that anything shown by competent-evidence to have been regarded by the parties, when they" made the contract, as mere matter of form, the law would not treat as matter of substance. But an acknowledgment of a substitutional order before a justice of the peace-might in fact be a material safeguard for the member making it, and for the beneficiaries named in the rules and displaced by the order; and the contract does not authorize any tribunal to dispense with any proceeding exacted by the contract as a substantial security of the rights of those parties. If acknowledgment could be omitted as a useless form, there is no ground of law on which two witnesses, or a signed writing, could be required. The will is not such an order as the contract demands.” Mellows v. Mellows, 61 N. H. 137.

See, also, Highland v. Highland, 109 Ill. 366; Lamont v. Benefit Ass’n, 30 Fed. 817; Hotel-Men’s Mut. Ben. Ass’n v. Brown, 33 Fed. 11.

Our own case of Supreme Lodge Knights of Honor v. Nairn, 60 Mich. 44 (26 N. W. 826), sustains this doctrine. It is urged that this case was made to turn upon another point; but, while it was held that Nairn could not receive this benefit, because not a relative nor dependent, the court said:

“The other objection, however, is one which cannot be surmounted. The written contract, so far as it goes, is the measure of the rights of all parties. By the express terms of that certificate, it is provided that Mrs. Richardson shall have the money unless the certificate is surrendered and canceled and a new one issued; and the form of surrender printed on the back conforms precisely to the clause also inserted in the constitution, requiring every surrender and new direction to be signed by the member, and attested by the reporter under the lodge seal, — he" being the officer into whose hands it must be placed for transmission to the home office for reissue. Under this arrangement, the purpose is evident that the corporation shall always be in written contract relations with a member who is alive and in good standing, which will show them the identity of the beneficiary to whom they are liable. It is possible — and we need not consider under what circumstances- — -that when a member has executed and delivered to the reporter his attested surrender, in favor of a competent beneficiary, his death, before a new certificate is rendered, may leave his power of designation so far executed as to enable a court of equity to relieve against the accident. But in the present case the facts show conclusively that Traver did not mean to have any surrender made until after his death. Nairn was not authorized to open the envelope or handle any of the papers while Traver lived, and Traver retained complete control of them. No one was authorized, while he lived, to take any steps to complete a surrender. The attestation of the reporter was not a mere ceremony. In this very case issue is made on the, voulntary character and legal validity of Traver’s alleged execution of the various papers. We are not disposed to consider that view of the case. But it is plain that the formality of appearing personally before an officer of the corporation or its lodges, and having the execution seen and attested by such an officer, would be a valuable guard against fraud and forgery, which was not provided for without some intention. In our opinion, Traver never surrendered this certificate, and never attempted to surrender it, within either the letter or the spirit of its conditions, 'and the right of Mrs. Richardson remains as originally provided for.”

This case would probably be considered conclusive by counsel but for some other and later cases. In Catholic Mut. Ben. Ass’n v. Priest, 46 Mich. 429 (9 N. W. 481), the disposition of a fund was sustained, but the court expressly said:

“We are unable to find anything in the act under which the complainant company was organized, or in the rules appearing in the record, which would take away from John Priest the right and power of disposing of this fund by last will and testament in the ordinary manner.”

This case contains'an intimation that “very clear and binding provisions must be shown, to deprive a person of the right given him by the laws of the land to dispose of such a fund by his last will.” This, however, was, at most, a dictum, and the later case of Supreme Lodge Knights of Honor v. Nairn, supra, negatives any inference against the general rule to be drawn from it.

In Grand Lodge A. O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1), the certificate was lost, and the court held that in such a case a statement and proof of such fact, with an application for a change of beneficiary, made to the order during the lifetime of the member, should have been treated as sufficient; and after the member’s death, upon interpleader, the court sustained the claim of the beneficiary designated by will that there was a substantial performance during the life of the member.

The case of Grand Lodge A. O. U. W. v. Noll, 90 Mich. 37 (51 N. W. 268, 15 L. R. A. 350, 30 Am. St. Rep. 419), goes a step further, and holds that where, by reason •of the fact that the certificate-is lost or mislaid, it is beyond the power of the member to comply with the provisions of section 17 of the constitution, although he has made no attempt to procure a new certificate during his life, the provisions of a will designating a new beneficiary should be enforced.

Again, the case of Grand Lodge A. O. U. W. v. Kohler, 106 Mich. 121 (63 N. W. 897), sustained a will where the original beneficiary had the certificate in her custody and refused to deliver it, she having been divorced from the member after receiving it. In this case an application to the lodge by the member for a new certificate had been refused before he made the will.

My Brethren are of the opinion that the Case of Nairn should not be treated as overruled by, these cases, which they consider exceptional, because of the inability of the member to comply with the terms of his contract. The case before us is not within the exception, as the certificate was found after his death, and, while the will was made only 96 hours after the decease of the original beneficiary., he lived 8 months after her death. It cannot be said, therefore, that such performance was impossible, as in the cases cited.

Having reached the conclusion that the beneficiary was not changed by the will, it follows that it must go to the member’s heir, Herbert J. Lount, under section 16 of article 5 of the constitution and by-laws of the order, which provides that, if all the beneficiaries shall die during the lifetime of a member, the benefit shall be paid to his heirs at law, and, if there be none such, then the benefit shall revert to the beneficiary fund of the grand lodge.

The decree of .the circuit court is reversed, and a decree will be entered in conformity to this opinion, with costs of both courts .against the defendants and appellees.

The other Justices concurred.


text:
    KLEINOW v. KLEINOW.
    Land Contracts — Evidence—Specific Performance.
    A parol contract to convey land is held to have been sufficiently established by evidence of the statements of the vendor, and the acts and conduct of the parties, to warrant a decree for specific performance.

      Appeal from Wayne;. Carpenter, J.
    Submitted January 8, 1901.
    Decided April 25, 1901.
    Bill by Otto Kleinow, William Kleinow, Frederick Kleinow, Jr., Otto F. Spiegel, William Spiegel, Louise Spiegel, Anna Kleinow, and Katie Kleinow against Herman Kleinow, Mary Kleinow, and Minna Kleinow for a partition of real estate. Defendant Herman filed an answer in the nature of a cross-bill, praying for the specific performance of a land contract. From a decree granting tbe prayer of the cross-bill, complainants appeal.
    Affirmed.

      Ed. E. Kane, for complainants.

      John G. Hawley, William M. Mertz, and Morse Rohnert, for defendant Herman Kleinow.
   Hooker, J.

Frederick Kleinow was the ancestor of all the parties, both complainant and defendant, except four. One of these, Minna Kleinow, was his widow while Kate was the wife of Frederick Kleinow, Jr., Anna the wife of Otto Kleinow, and Mary the wife of Herman. All joined in the original bill for a partition of property left by Frederick, except Herman, Mary, and Minna, who were made defendants. Mary and Minna answered, and Herman filed an answer in the nature of a cross-bill, in which he alleged that he entered into possession of a certain parcel of about 31 acres under a contract of purchase made with his father, in consideration of various services, past and prospective, performed and thereafter to be performed by him, and a promise to pay to his father annually $70 during the lifetime of his father; alleging performance upon his • part, that he had made large improvements in reliance upon said contract, and praying a decree for specific performance. The learned circuit judge sustained the claim made by this answer, and made a decree for specific performance. The complainants have appealed, and counsel seem to agree that the only question before us is whether defendant Herman Kleinow is entitled to specific performance.

Defendant’s claim is supported mainly by alleged statements of Frederick, the father, and the acts and conduct -of the parties. No witness to the alleged contract is pro-duced; Frederick being dead, and defendant having been treated as disqualified by the statute. He was a witness, but testimony upon this point was objected to, and not given by him. The conduct of the parties, and the statements of Frederick to his intimate friends, convince us of ihe truth of Herman’s claim, and in our opinion justify the decree of the trial court, which is therefore affirmed^ with costs against the complainants personally, and not against the estate.

The other Justices concurred.


author: MOORE, J.

text:
    MITCHELL v. TOWNSHIP OF LAKE.
    1. Taxation — Place oe Assessment — Stored Logs.
    Under 1 Comp. Laws 1897, § 8837, subd. 8, providing that all forest products shall be assessed in the township where they may be on the second Monday of. April, except that, where such property is in transit to some place within the State, it shall- be assessed in such place; and section 3838, providing that logs piled or left in any yard or railroad reserve shall not be deemed in transit, — logs piled on the right of way of a private railroad owned and operated by the owners of the logs, awaiting transportation thereon, are assessable in the township where they are located.
    3.. Same — Logs in Transit.
    Under the provision of section 3837 above mentioned, that forest products in transit to some place within the State at the time for taking the assessment shall be assessed in such place, and of section 3838, creating a presumption as to the destination of such products found “in the waters or streams” of the State, “ when not at the place where they are to be manufactured,” logs in a storage pond appurtenant to a sawmill, and intended for manufacture therein, though being in a township other than that in which the mill is situated, are assessable in the latter township.
    3. Same — Private Railroad.
    The roadbed and track of a private railroad owned by a co-partnership is assessable as real estate in the township where it is located.
    Case made from Missaukee; Aldrich, J.
    Submitted January 29, 1901.
    Decided April 25, 1901.

      Assumpsit by William W. Mitchell and Austin W. Mitchell, copartners as Mitchell Brothers, against the township of Lake, to recover taxes paid under protest. There was a judgment for plaintiffs for less than the-amount claimed, and both parties assign error.
    Affirmed.

      F. 0. Gaffney (E. Eugene Haskins, of counsel), for plaintiffs.

      Saioyer & Bishop, for defendant.
   MOORE, J.

Plaintiffs were the owners of certain logs, which were assessed by two assessing officers of different townships. The taxes were paid by them in both assessing districts. The payment in the township of Lake was made under protest. This action is brought to recover back the amount so paid. Two suits were brought, — one for the taxes of 1898, and one for the taxes of 1899. The disposition of this case will decide all the questions in-1 volved in both cases. The following agreed statement of facts was presented to the trial court:

“First. The above-named plaintiffs are copartners in. business, and reside in Cadillac, Wexford county, Michigan, and have their principal business office at that place, and all the books of account of the Mitchell Brothers are-kept there; that they have in Lake township, Missaukee county, a store, sawmill, planingmill, machinery for the manufacture of flooring; also storehouses, shops, piling grounds, etc., for use in connection with their lumber manufacturing business.
“Second. That plaintiffs own and operate a sawmill situated in the township of Lake, in Missaukee county, Michigan.
“Third. That said mill is situated near the township line between said township of Lake and the township of Caldwell, in said county of Missaukee.
“Fourth. That the place of storage of logs” at said mill is in a small lake, a small part of which is in Lake township and the other part in Caldwell township.
“Fifth. That while in storage in said lake the logs are kept in a storage boom, a part of said boom extending into Lake township and the balance extending into Caldwell township; that the township line running east and west between said Lake and Caldwell townships is 164 feet north of the slide or chute upon which the logs are taken from the water of the lake into the mill.
“Sixth. That said plaintiffs own and operate a narrow-gauge logging railroad extending from said sawmill in a northeasterly direction through the townships of Caldwell, Bloomfield, Forest, Norwich, and West Branch; that said railroad is operated by steam, and is used exclusively by the plaintiffs for their own purposes, principally the transportation of logs to their said sawmill. ’
“Seventh. That said plaintiffs own more or less timber along the line of said railroad, which, when cut into logs to be transported to said mill, is piled on the right of way and grounds of said plaintiffs, and from there loaded upon their cars and carried to said lake or storage pond, and from there taken into the mill and cut into lumber.
“Eighth. That said plaintiffs also purchased logs of third parties, and, when the logs were cut and skidded, the plaintiffs, if their track has not already been constructed, construct a track to the logs so cut and decked up, and then load them-on the cars and transport them to said lake or storage pond.
‘Ninth. That all logs hauled for the purpose of being immediately cut are dumped in that part of the pond in Lake township in the immediate vicinity of said chute; all the logs hauled, not to be at once cut, are dumped in that part of the pond in Caldwell township, and float about in both townships, their position and location therein being dependent upon how the wind blows.
“Tenth. That in the year 1898, on the second Monday in April, the plaintiffs had logs cut and piled along said railroad in the townships of Caldwell, Bloomfield, West Branch, and Norwich, ready for transportation on their said railroad to said lake or pond for storage, and to be manufactured at their said mill.
“Eleventh. That the logs in each of said townships were assessed in each of said townships.
“Twelf th. That all of said logs situated in said Caldwell, Bloomfield, West Branch, and Norwich townships were assessed in said township of Lake.
“Thirteenth. That said plaintiffs carry on their business the year round, but that, in conducting said operations, during the winter season a considerable amount of logs accumulate and are piled along said logging road and branches in the several townships, some of which are cut and piled by plaintiffs, and a part are purchased of others, who haul the same to said road where most convenient; that said logs are being hauled by plaintiffs over said road during the winter season, and continue to do so until they are all hauled, when their operations are confined to the hauling of the logs-as fast as cut and piled along said track, so that the only accumulation of logs occurs in and during the winter months.
“Fourteenth. That the said plaintiffs appeared before the board of review of said township of Lake on the fourth Monday of May, 1898, and protested and objected to the assessment of said property in the said township of Lake; that notwithstanding said protest there was assessed upon the tax roll of said Lake township as follows: ‘ Personal as follows: Logs in the townships of Bloomfield, Forest, West Branch, and Norwich, in Missaukee county. Personal : Logging railroad in townships of Caldwell, Bloomfield, Forest, West Branch, and Norwich, in Missaukee county, 30 miles, at $300.00 per mile, including engines and cars.’ * * *
“Fifteenth. That said plaintiffs, in connection with the operation of their said sawmill and railroad and lumbering business, also operate a planingmill and store at said village of Jennings, in Lake township; that said railroad starts from Jennings, in Lake township; and that the engine used in operating said railroad is housed and kept in the township of Lake.
“Sixteenth. It is also agreed that if the court shall find, as a matter of law, that the assessment of the logs situated in the townships of Caldwell, Bloomfield, Forest, West Branch, and Norwich is illegal, then the plaintiffs will be entitled to recover $463.45, with interest thereon at the rate of 6 per cent, from February 31, 1899. * * *
“Seventeenth. That plaintiffs own tracts of land on Loth sides of the town line between Lake and Caldwell townships, and that contiguous tracts on both sides of this line constitute the mill site, mill yard, and booming ground of plaintiffs.”

Based upon the agreed state of facts, the court came to the following conclusions of law:

“First. That the assessment on the railroad bed or logging railroad situated in Caldwell, Bloomfield, Forest, West Branch, and Norwich townships is illegal and void.
“Second. That the rolling stock and equipments of the said railroad are appurtenant to the mill of said plaintiffs in the said township of Lake, and should be assessed in the last-named township.
“Third. That the logs in the townships of Caldwell, Bloomfield, Forest, West Branch, and Norwich, piled along the railroad right of way and grounds, were not ■assessable in the township of Lake.
“Fourth. That the logs which were in the storage pond, being partly in the township of Caldwell, on the second Monday of April, 1898, which storage pond is appurtenant to the said mill of the said plaintiffs, were assessable in the township of Lake, and the said plaintiffs are not entitled to recover anything on account of the taxes paid upon said logs last mentioned.”

The plaintiffs allege error in the fourth conclusion of law. The defendant assigns error as. to each of the other conclusions of law.

The main question involved is whether the logs piled along the railroad right of way and grounds should be ■assessed in the townships where they were when the assessments were made, or whether they may be assessed in the township of Lake. It is the claim of counsel for defend•ant that, by the tax law,—

“Forest products are divided into three classes for the purpose of taxation: (a) Those in the streams and waters ■of this State, assessable at their destination; (b) those along a public railroad, or actually delivered at a sawmill, assessable where they happen to be; (c) those being handled by private conveyance, assessable according to tbe circumstances appearing in each case,— classes a and b being governed by section 15, and c controlled by subdivision 8, § 14. The first two of these conditions, therefore, present questions of law only, while the last may be a mixed problem of fact and law.”

If we understand the argument, it is that, inasmuch as plaintiffs are the owners of the railroad over which the logs are transported, they are handled by private conveyance, and must be deemed to be in transit, and are assessable at their place of destination, the township of Lake; citing Elk Rapids Iron Co. v. Township of Helena, 117 Mich. 211 (75 N. W. 455).

Section 3836, 1 Comp. Laws 1897, provides that, with certain exceptions, personal property shall be assessed in the township where the owner is an inhabitant. Subdivision 8 of the following section provides that all forest products shall be assessed in the township or ward where the same may be on the second Monday of April, except that, where such property is in transit to some place within the State, it shall be assessed in such place. Section 3838 throws light upon what is meant by “forest products in transit,” and provides:

‘ ‘ That all lumber, logs, * * * that may be piled or left in any yard, railroad reserve, or in any shed, shall not be deemed in transit, but shall be assessed to the person or corporation having control of the yard, railroad reserve, shed, or place of storage where the same may be situated at the time provided by law for taking such assessment.”

This language is not ambiguous, and it does not make an exception in case the railroad over the track of which the logs are to be transported is owned by the owner of the logs instead of by a corporation. See Hood v. Judkins, 61 Mich. 575 (28 N. W. 689); Maurer v. Cliff, 94 Mich. 194 (53 N. W. 1055); Township of Plainfield v. Sage, 107 Mich. 19 (64 N. W. 731).

The next question is whether the railroad track and bed should be assessed in the township where it is located. There can be no question, we think, but that it is real property. It is not owned by a corporation, and there is no claim made that it pays specific taxes. Section 3826,1 Comp. Laws 1897, provides that real property shall be assessed in the township or place where situated. An exception is made to this rule where the real estate belongs to a corporation which pays specific taxes. See section 3834, 1 Comp. Laws 1897. - But our attention has not been called to any law which would establish any different rule for the assessment of this real estate than the one requiring it to be assessed at the township where it is ■situated.

The remaining question is whether the court was right in holding that the logs which were in that portion of the pond which lies in the township of Caldwell might be assessed in the township of Lake. These logs were to be manufactured at the mill, which was in the township of Lake. They were in the lake, but had not yet reached the place of manufacture, to wit, the mill, which was up. wards of 160 feet from the township line. We think they were within the provisions of section 3838, 1 Comp. Laws 1897, and were properly assessed in the township of Lake.

Judgment is affirmed in both cases.

The other Justices concurred.


text:
    DEERING v. CANFIELD & WHEELER CO.
    Master and Servant — Defective Appliances — Assumption of Risk — Contributory Negligence.
    Where the space between a circular saw and'the guide thereto became blocked by chips and splinters by reason of a defect in the guide, and the employé operating the saw took a stick and attempted to push the splinters out, instead of stopping the saw or removing the table, either of which was practicable, and the stick broke, permitting his hand to come in contact with the saw, held, that he not only assumed the risk of using a stick, but was guilty of contributory negligence, precluding a recovery for the injury sustained.

      Error to Manistee; McMahon, J.
    Submitted February 13, 1901.
    Decided April 25, 1901.
    Case by Michael J. Deering against the Canfield & Wheeler Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    P. W. Niskern, for appellant.

      Bmurthwaite & Fowler, for appellee.
   Hooker, J.

The plaintiff, a young man of 33 years of age, and familiar with the machine that he was using, was injured by getting his hand in contact with a circular-saw. In proximity to this saw was a guide, which was-originally quite near, but not against, the saw. It is-claimed that this guide got worn, so that the space between it and the saw was greater than it should have-been, and that the defendant’s foreman had promised the plaintiff that it should be fixed at the end of the day upon which he was hurt, a previous like promise having been, broken. It was common for slivers and small thin pieces-that came from the saw to get into this space between the-guide and the saw, and the effect was to bind and injure the saw. It was therefore customary for the operator to-get them out. It was possible to do this in one of three-ways : First, by taking a stick, and pushing them out second, by stopping the saw, which was easily done; or by removing the table, which was practicable by taking-out some bolts. Instead of taking a safe way, the plaintiff took a piece of lath, and pushed so hard upon it as to-break it, when his hand struck the saw, with the result mentioned.

The learned circuit judge was of the opinion that the-plaintiff’s act was negligent, and that he was not entitled to recover; and in this opinion we concur. We also think he assumed the risk of using a stick, which, in some instances, would perhaps be safe.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    CHAPIN MINING CO. v. UDDENBERG.
    Taxation — Part Payment or Tax.
    Under 1 Comp. Laws 1897, § 8876, providing that any one may pay the taxes or any one of the several taxes, or' any part thereof, on any parcel of land, a taxpayer, believing a part only of a tax to be valid, may pay that portion, and have a receipt therefor, and contest the remainder, though it be part of a definite tax.

      Certiorari to Dickinson; Stoñe, J.
    Submitted February 12, 1901.
    Decided April 25, 1901.

      Mandamus by the Chapin Mining Company to compel Arthur Uddenberg, treasurer of the city of Iron Mountain, to receive a portion of a tax, and to give a receipt therefor. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      R. C. Flannigan, for relator.

      H. M. Pelham, for respondent.
   Moore, J.

This is an application for a writ of certiorari to review the action of the circuit judge in granting a writ of mandamus requiring the respondent to receive part of a tax and receipt therefor.- There was assessed in the city of Iron- Mountain, against the Chapin Mining Company, for general purposes, a tax of $38,226.68. The company was willing to concede that $30,955.50 of the tax was valid, and tendered that amount to the city treasurer. Upon his refusal to receive it and give a receipt therefor, this proceeding was commenced.

The question involved is, What' construction shall be given to section 53 of the tax law, which is section 3876, 1 Comp. Laws 1897, and, so far as is material here, reads as follows:

“Any one may pay the taxes or any one of the several taxes, or any part thereof, on any parcel of land, and the treasurer shall note across the face of the receipt, in ink, any portion of the taxes remaining unpaid. He may pay any tax, whether levied on personal or real property, under protest to the treasurer, specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll, and in the receipt given.”

It is the claim of the relator that if he deems a portion of any tax valid, and a portion invalid, he is entitled, under the statute, to pay the valid portion, and have a receipt given him therefor, while he may contest the part of the tax he claims to be invalid. The respondent admits he may pay part of the tax assessed, if it is all of a definite tax, or the taxes on a definite description of land, or for an expressed undivided interest in a definite description of land, but denies the relator’s right to pay a portion only of a given tax, and cites the ruling of the auditor general’s department (Auditor General’s Compilation of State Tax Law [Ed. 1900], p. 67), and Sayers v. O’Connor, 124 Mich. 256 (82 N. W. 104), quoting from page 258 of the last-named authority, where it is said, “ The tax collector is not obliged to take payment of a given tax in installments.” It is urged that, if this may be done, it will make the tax collector a great deal of trouble, and will complicate his accounts.

The language of the statute is not ambiguous. It provides that “any one may pay the taxes or any one of the several taxes, or any part thereof,” etc. This evidently contemplates that a taxpayer may do just what the relator desired to do in this case; that is, the taxpayer may pay the tax he concedes to be valid, and contest the tax he claims to be invalid. We think, when the opinion in Sayers v. O’Connor is read in connection with the facts of that case, there is nothing inconsistent with this interpretation of the statute. In that case a portion of the tax which had been paid had been returned to the taxpayer, and its return was satisfactory to him. The lien upon the land for a portion of the tax was never discharged. The amount of that lien would be determined by the court having jurisdiction when the decree was made to enforce the lien, and the court held whether the amount so fixed was excessive could not now be litigated; citing Muirhead v. Sands, 111 Mich. 487 (69 N. W. 826), and other cases. We were of the opinion then, and are now, that the taxpayer may not pay a portion of a given tax today, and another portion tomorrow, and still another portion next week, thus allowing him to pay his tax in installments; but we are also of the opinion, as we have already said, that he may pay a portion of the tax which he deems to be valid, and receive a receipt therefor, and contest the -validity of that portion of the tax unpaid. As was said in Sayers v. O’Connor, the lien would still remain on the land for the unpaid portion, and the tax collector could proceed to enforce the collection thereof, the same as though no portion of the tax had been paid.

Judgment affirmed.

The other Justices concurred.


text:
    LEONARD v. WAYNE CIRCUIT JUDGE.
    Mortgages — Separate Tracts — Foreclosure Decree — Compelling Enforcement.
    A mortgage covered two pieces of property. After a decree of foreclosure, the interest of the mortgagor in one of the pieces was sold at a receiver’s sale at the instance of a judgment creditor, and the sale was confirmed; the creditor becoming the purchaser. Thereafter he sold the interest of the mortgagor in the other piece under execution, and became the purchaser at such sale. Valuable improvements were made by him upon the first piece. The time for redemption from the execution sale not having expired, the mortgagor moved to compel the mortgagee to sell under his foreclosure decree so that he could ascertain the amount of the lien on the-second piece (the decree directing that the other should be first sold), and the amount of any deficiency there might be. The mortgagee filed a consent that, when the title of the purchaser at the execution sale should become absolute, or when the mortgagor should redeem the premises from the sale, the mortgagee would release all interest in the property vested in him by the foreclosure decree; and an order was thereupon entered confirming the stipulation and denying the motion. Held, that the rights of the mortgagor were sufficiently protected.

      Mandamus by Henry R. Leonard and Annie E. Leonard to compel Robert E. Frazer, circuit judge of Wayne county, to enter an order directing a sale under a decree of foreclosure.
    Submitted March 21, 1901.
    Writ denied. April 25, 1901.

      George W. Radford, for relators.

      Wells, Angelí, Boynton & McMillan, for respondent.
   Hooker, J.

Leonard borrowed from Stephens $40,-000 upon two pieces of real property, which, for convenience, we will call “Gratiot” and “Eliot,” respectively, from the streets upon which they were located. The legal title to these parcels was never vested in Leonard, being placed in the lender, Stephens, as security for the $40,000, at Leonard’s request, by -the persons whose contracts Leonard held. Stephens commenced the foreclosure of his mortgage in February, 1898, taking a decree of the circuit court on February 27,1899, which was affirmed on December 2, 1899. Stephens v. Leonard, 122 Mich. 125 (80 N. W. 1002).

Leonard was indebted to the Preston National Bank, which obtained judgment on its claim in April, 1898, and in May, 1898, it caused an execution to be levied upon Leonard’s interest and title in both parcels; and as Leonard had, prior to the rendition of said judgment, conveyed Eliot to his wife, the Preston Bank filed a bill in aid of its execution, and had a receiver appointed for Leonard. In November, 1898, the receiver filed a petition for leave to sell Gratiot, which was incumbered by the ruins of a costly business building. A hearing was had, and upon an order then made the' property was sold, and the sale was confirmed on April 17, 1899. The Preston National Bank was the purchaser. No appeal from this order was taken, and, while the record is silent upon the subject, we infer that the proceeds were held to await thel final decree in the case. Upon final hearing of the case in this court (122 Mich. 381, 81 N. W. 264), the transfer of Eliot to Mrs. Leonard was held void as to the bank, except as to homestead rights, and our decree permitted the sale of Eliot on the execution, subject to the homestead rights, and confirmed the receiver’s sale of Gratiot • and Eliot was sold to the bank for $12,500 in June, 1900. Presumably both parcels are' held by the bank subject fi> the lien of Stephens’ decree.

We find, then, that the bank was the purchaser of Leonard’s interest in both parcels,— Gratiot at receiver’s sale, in April, 1899, and Eliot at execution sale, in June, 1900. Stephens’ decree in the foreclosure case has not been followed by sale. As stated, Gratiot was visited by a disastrous fire, and sometime afterwards, in order to prevent loss and damage to his interest, and that of Leonard, in the property, and possible damage to adjoining property, Stephens entered and expended money upon th,e property by the express authority of Leonard, and the sum expended by Stephens was allowed upon the hearing of the case of Stephens v. Leonard, 122 Mich. 125 (80 N. W. 1002).

In October, 1900, Leonard made a motion in the circuit court for an order to compel Stephens to sell the property under his decree in the foreclosure case. He claims that this is necessary, so that he may ascertain after the sale of Gratiot how much of the decree shall remain a lien upon Eliot, and also, if both shall be sold, how much of a deficiency will remain a personal liability. Leonard has no interest left in Gratiot, except the right to have it sold and applied before Eliot shall be sold under the foreclosure decree. He has no right of redemption of Gratiot; for that was sold by the receiver, and the purchaser’s title has been confirmed. At the time this motion was heard, the solicitors for Stephens filed a consent, in writing, on behalf of their client, that an order might be entered that when the title of the purchaser of Eliot at the execution sale should become absolute, or when Leonard should redeem the premises from said sale according to law, Stephens should release, by appropriate conveyance to the purchaser, or to Leonard, all of the interest in said property vested in him by the foreclosure decree. Thereupon an order was entered reciting the receiver’s sale and confirmation and said stipulation, and providing that, in the contingency mentioned in said stipulation, complainant should release Eliot in conformity thereto, and denying Leonard’s .motion. Leonard has asked a mandamus to compel the circuit judge to vacate the order made in the premises and grant the motion.

The bank owns the equity of redemption in Gratiot, the primary fund in the foreclosure proceeding. Since purchasing it there has been expended a large sum in restoring the building thereon, and its value has been correspondingly enhanced. As between the bank and Leonard, the sum so spent cannot equitably be applied upon Leonard’s mortgage. It is claimed that the secret of Leonard’s effort to compel the sale of Gratiot is to get the benefit of this expenditure in reduction of his mortgage. If this can be accomplished, it may be profitable to redeem Eliot, when otherwise it might not. The stipulation and order, if valid, release Eliot from the lien of the decree, and it may be that the defendant Leonard is released from liability for a deficiency, should there be one. We think that Stephens is bound by this order, and therefore that it is unnecessary to know how much Gratiot will pay before redeeming Eliot, if that is petitioner’s object. While one has a right to pay his debts when due, thereby extinguishing liens upon his property, he has not usually the right to require his creditor to institute legal proceedings for the purpose. We have seen that Leonard has a mere equity of redemption in Eliot. That will be cut off if he shall fail to redeem from the execution sale. . Then the bank’s title to Eliot will become absolute, as it has already to Gratiot, subject to the Stephens mortgage. Then the bank only will have an equity of redemption in Eliot as against the mortgage, as it has now in Gratiot, and by mere payment of the decree it would acquire a perfect title. Stephens may expect such' a payment, and it may be that it is already agreed upon; but, whether it is or not, we think that he cannot be required to expend money in pursuing his foreclosure proceedings further than his interests demand, and that we should not aid Leonard to profit through an application of the bank’s money, expended upon Gratiot, to his mortgage.

The order of the circuit court is affirmed, and the writ is denied.

The other Justices concurred.