text:
    HAMMOND v. CITY OF DETROIT.
    Government Road — Location.
    On a review of the evidence, the “River Road,” so called, in Detroit, as surveyed by the city authorities, is found to be coincident with a 66-foot highway established under act of Congress in 1824.
    Cross-appeals from Wayne; Hosmer, J.
    Submitted December 13, 1901.
    Decided January 7, 1902.
    Bill by Charles F. Hammond and others against the city of Detroit and Henry Frederick to restrain an alleged encroachment on complainants’ property. From the decree rendered, both parties appeal.
    Reversed and bill dismissed.

      Charles W. Casgrain, for complainants.

      John W. McGrath, for defendants.
   Montgomery, J.

The bill in this case was filed to restrain the city from encroaching upon the premises of the complainants in grading and paving the street adjacent to complainants’ property, known as “River Street.” The bill alleges that complainants are the owners of that part of the west half of private claim No. 78 lying between Woodbridge street, otherwise known as “River Road” or “River Street,” and the channel of the Detroit river, except the west 125 feet. When the bill was filed, the street was already in process of improvement, and at the hearing had been graded and the curb set. The decree of the circuit court restrained defendants, in effect, from extending the street beyond the curb line, except for purposes of support, practically holding that the curb line, as set, was the street line. Both parties have appealed to this court.

It appears that, as early as 1824, Congress passed an act authorizing the surveying and making of a road from a point in the northwestern boundary of the State of Ohio to Detroit, in the then Territory of Michigan. The president was authorized to appoint three commissioners, who should explore, survey, and mark, in the most eligible course, a road from a point in the northwestern boundary of Ohio to Detroit, and providing that the commissioners should make out accurate plats of such surveys, accompanied with field-notes. It was further enacted that the road should be opened and made under the direction of the president of the United States, who was authorized to employ the troops of the United States in the completion, or assisting in the completion, of said road. In November, 1824, the commissioners made their report, accompanied by a map and field-notes, showing a road between the termini named in the statute. This report would appear to have been approved by the president. The maps show a survéy of this highway, giving its width at 66 feet, and the report stated that the width of the contemplated road is marked at 66 feet. This road appears upon the map between Springwells and Detroit as adjacent to the river, and following the course of the river, in the main. It is true that it would appear from the location of the road on the map that no part of it was intended to be in the river; but, as was stated by one of the witnesses, it would be necessary to put the road down somewhere on the map, and the surveyor could not very well put it down in the river.

The case turns upon two questions of fact: First, whether the road for its entire length is to be deemed a road 66 feet in width; and, second, if it is, whether the evidence shows that the highway, as surveyed by the city, is located upon the 66 feet originally contemplated and worked and used for this highway. There is no evidence of adverse possession by the claimants, or those under whom they claim. If, therefore, there was a 66-foot street or highway along the margin of the Detroit river, and the locus in quo is found to be within the limits of that existing street, the complainants are not entitled to any part of the relief prayed.

We are well satisfied that the road as laid out was the originally contemplated road provided for in this act of Congress, and that it was a road intended to be 66 feet in width in front of these premises. But, as said by the circuit judge, the map itself does not show where that 66 feet of road was located. That question remains to be determined upon testimony which is more obscure than is desirable. But a careful examination of the record, the testimony of surveyors familiar with the highway for many years, and the fences upon the boundary line, all indicate that the north side of the road was as fixed by the city engineer in providing for these improvements. It is true that all the 66 feet south of this point was not wrought for travel. The best evidence is that the occupied portion came within 4£ feet, or thereabouts, of the present south curb line. But, as the property was presumably the property of the United States in 1824, it was competent for the authorities to locate a i’oad at a point where there may have been shallow water on some portion of it. It would appear from the testimony that the authorities have considered that the southerly portion of this highway at least came fully up to the river bank, as for many years the land between that and the channel of the river was not assessed at all, or considered as property. On the whole, we feel convinced that the best testimony tends to show that this highway of 66 feet was located as the city engineer has attempted to locate it for these improvements, and it follows that the bill of complaint must be dismissed, with costs of both courts.

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


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    CASE v. CITY OF DETROIT.
    Taxes — Destruction of Property — Liability of Owner.
    The destruction of property after it has been assessed for taxes, and the roll confirmed by the board of review, will not, as a matter of law, relieve the owner from liability for the tax.
    Error to Wayne; Brooke, J.
    Submitted December 13,. 1901.
    Decided January 7, 1902.

      Assumpsit by George F. Case against tbe city of Detroit to recover taxes paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Timothy E. Tarsney, for appellant.

      Charles Kudner (C. D. Joslyn, of counsel), for appellee.
   Hooker, C. J.

The plaintiff was owner of premises in Detroit, upon which there were buildings. The board of assessors placed them upon the assessment roll for the year 1898 at a valuation of $92,900. It is admitted that, of this, $50,000 was the value of the buildings, and $42,900 that of the land. The roll was approved by the board of review, and subsequently, on June 9, 1898, the buildings were destroyed by fire. On July 12th, the plaintiff petitioned the common council to remit a portion of the taxes, corresponding to the amount assessed upon the buildings, and it adopted a resolution to remit and pay back the sum of $814.82 of said taxes. This occurred on August 23, 1898. The mayor declined to approve the resolution. Again, in 1900, asimilar resolution passed the council, and the mayor again declined to approve it. The money having been paid to the treasurer, the plaintiff brought this action to recover the sum of $784.40, city taxes assessed upon the buildings. He claims it to be for taxes assessed for the fiscal year 1898, which, he says, began July 1, 1898, some time after the destruction of the buildings. The circuit court rendered a judgment for the plaintiff» and the defendant has brought error.

These lands were lawfully assessed, and the taxes were spread in conformity to law, before the fire. It was perhaps within the power of the council to remit a portion of these taxes if they deemed it unjust to require payment, but they failed to do this. We know of no authority which sustains the plaintiff’s contention that one owning property destroyed, or parted with in any other way, after the taxes are spread, is to have a rebate of a portion of his taxes. None is cited by counsel, and we think that the introduction of such a rule would lead to much confusion. It is admitted that the property burned was insured, and it is shown that $45,000, if not more, was paid by the insurance companies to persons holding mortgages given by or for which the plaintiff was responsible. It was upon this ground that the mayor vetoed the resolutions, but this fact is not important.

The judgment is reversed, and, under the admitted facts, a new trial is denied. Judgment will be entered here in favor of the defendant for costs of both courts.

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


text:
    WARD v. OLIVER.
    Witnesses — Husband and Wife — Competency — Confidential Communications.
    Under 3 Comp. Laws, § 10213, providing that a husband shall not be examined as a witness for or against his wife without her consent, nor shall either, during the marriage or after-wards, without the consent of both, be examined as to any communication made by one to the other during the marriage, a surviving husband is not disqualified, in a suit to set aside a deed from him to his wife as in fraud of creditors, from testifying to dealings between himself and wife, showing that the deed was made in payment of a debt due for borrowed money; since the former clause of the statute applies only during coverture, and the latter only to communications recognized in the law as confidential.
    Appeal from Montcalm; Davis, J.
    Submitted December 13, 1901.
    Decided January 7, 1902.
    Bill by Michael Ward, survivor of himself and James Ward, copartners, against John E. Oliver and others, in aid of execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Dunham & Malcolm, for complainant.

      C. L. Barden (George E. & M. A. Nichols, of counsel), for defendants.
   Hooker, C. J.

Complainant’s bill was filed in aid of an execution to set aside a deed from defendant John E. Oliver to his wife, Augusta, who was, before her death, a party defendant. A prima facie case was made by complainant under‘the statute (3 Comp. Laws, § 10203). Thereupon defendant John E. Oliver was called as a witness by counsel for the defendants, and testified fully to dealings between himself and wife whereby the deed was made and accepted in payment of a debt due from him to her for borrowed money. The bill was dismissed, and the complainant has appealed.

Counsel for complainant seem to concede that, if Oliver’s testimony was competent and true, the judge was j ustified in dismissing the bill. See brief, page 4. They insist, however, that the husband’s testimony was inadmissible under the statute (3 Comp. Laws, § 10213), which provides that “a husband shall not be examined as a wit--, ness for or against his wife without her consent.” If this were all of that statute, it would not be a formidable obstacle to the introduction of this testimony, inasmuch as, the wife being dead, it could not be said that the husband testified for or against the wife. By her death the reason for this rule had ceased to exist. There was no marriage relation to be disturbed by a possible controversy between spouses.

There is another clause of the statute, aimed at confidential communications between husband and 'wife, viz.:

“Nor shall either [husband or wife], during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage.”

Not only is this portion of the statute limited by its terms to communications, but the provision implies that the portion of the statute .first quoted applies only during coverture. The later clause of the statute has been limited by the decisions upon it. In Hunt v. Eaton, 55 Mich. 362 (21 N. W. 429), it is shown that too broad a construction would nullify the exception to the first prohibition, relating to suits involving the separate property of husband or wife. Again, in Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756), and Gaskill v. King, 12 Ired. 211, the communications referred to in the statute are shown not to comprise all transactions between husband and wife, but only those communications already recognized in the la tv as confidential in character. In our opinion, the case of Hagerman v. Wigent is conclusive of the question. The husband’s testimony, being found competent, determines the case, if it is true. Conveyances by failing debtors to their wives usually give rise to suspicions of fraud, and the present case is no exception. But, unless we are to permit a suspicion to overcome sworn testimony apparently consistent and truthful, we cannot find the existence of fraud. We therefore concur in the view taken by the learned circuit judge who heard the case.

The decree is affirmed.

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


author: Per Curiam.

text:
    HOSFORD v. GRATIOT CIRCUIT JUDGE.
    1. Adultery — Withdrawal op Complaint — Dismissal.
    A prosecution for adultery should be dismissed at the request of the complaining party, even after information filed.
    2. Mandamus — Interlocutory Orders.

      Mandamus will not lie to review an interlocutory order, whether in a civil or a criminal proceeding.

      Mandamus by May Hosford to compel George P. Stone, circuit judge of Gratiot county, to dismiss a prosecution against her for adultery.
    Submitted December 30, 1901.
    Writ denied January 7, 1902.

      Sawyer & Pettit, for relator.

      Julius B. Kirby, Prosecuting Attorney, for respondent.
   Per Curiam.

Relator was arrested on complaint of her husband, charging her with adultery, and is confined in prison awaiting trial. The husband filed a paper stating facts very similar to those in People v. Dalrymple, 55 Mich. 519 (22 N. W. 20). Upon filing such paper, relator moved that the proceedings be dismissed and she be discharged. The court denied the motion, holding that the husband, the complaining party, could not control the suit after it was once begun.

The court was certainly in error under the case above cited, and should have granted the motion. This, however, is not the proper proceeding to raise the question. We have steadily refused to entertain motions to review interlocutory orders of courts in both civil and criminal cases, and cannot make this an exception. Undoubtedly the circuit judge, upon the renewal of the motion, will grant it and discharge the relator.


author: Moore, J.

text:
    ELLIS v. BALLOU.
    Bills and Notes — Payment—Evidencie—Receipt of New Note.
    The payee of a note given by a partnership was informed by - the latter that a corporation had been organized, which had succeeded to the partnership property and assumed its liabilities, and a note executed by the corporation was sent to the payee, to be exchanged for the partnership note; but the payee, though retaining the corporation note, failed to return the partnership note. Subsequently, however, he complained to the officers of the corporation of their action in preferring certain creditors, and also made statements to third persons indicating that he regarded the corporation as his debtor. More than three years after the receipt of the corporation note, and after the insolvency of the corporation, the corporation note was returned, and suit brought on the partnership note. Held, to show that the corporation note was received in payment of the partnership note, precluding a recovery upon the latter.
    Error to Ionia; Davis, J.
    Submitted October 22, 1901.
    Decided January 28, 1902.

      Assumpsit by Sarah M. Ellis, for the use and benefit of Wilbur D. Ellis, against Willis D. Ballou and Anna A. Bid well, formerly copartners as W. D. Ballou & Co., on a promissory note. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      W. K. Glide, for appellant.

      A. A. Ellis and E. M. Davis, for appellees.
   Moore, J.

This case was brought to recover upwards of $4,000 claimed to be due upon a lost note given by the defendants to the plaintiff. The circuit judge directed a verdict in favor of the defendants. The attorney for the plaintiff claims a verdict should have been directed in her favor. The case is brought here by writ of error.

It will not be practicable to recite the testimony in detail. The record shows the following: The plaintiff is a resident of New York. She is the widow of John Ellis, deceased, and the stepmother of Wilbur D. Ellis. The last named person is one of the executors of the will of John Ellis. The defendants constituted in 1893 the firm of W. D. Ballou & Co. This firm in 1893 borrowed $4,000 of John Ellis, and $3,000 of Mrs. Ellis, giving to Mrs. Ellis a note for $3,000, and to Mr. Ellis two notes of $2,000 each. There is practically no dispute about the facts. It is true, Mrs. Ellis claims her husband did not act for her; but her testimony shows she had no correspondence with the defendants, and the correspondence itself shows Mr. Ellis looked after the note of his wife as well as his own.

In the fall of 1894 Mrs. Bidwell sold her interest in the partnership to Mr. Hall, who lived in New York. In December, 1894, the corporation known as the Ballou Basket Company was organized, and succeeded to the business of W. D. Ballou & Co., which firm transferred to it all its property, and the corporation assumed all the liabilities of the partnership. In December, 1894, $180 was sent to Mr. Ellis to payffhe interest on the note belonging to Mrs. Ellis. In December, 1895, Mr. Ellis, by letter, called the attention of Ballou & Co. to the fact that the inte'rest on the $3,000 note and one of the $2,000 notes had not been paid. In reply to this letter Mr. Ballou sent to John Ellis the note of the corporation for $300 to pay the interest on the $3,000 note, as well as on one of the $2,000 notes. This note was accepted in payment of the interest by Mr. John Ellis. A little later the following letter was sent:

“Belling, Mich., December 30, 1895.
“Dr. John Ellis,
“322 W. 23d St., New York City.
“Dear Sir: When Mr. C. J. Hall was here recently, in looking over our bills payable, we were reminded of the fact that the notes you have in your possession are made out in the name of W. D. Ballou Sc Co., whereas that firm transferred their property to the Ballou Basket Company, who assumed all liabilities. This being the case, we presume that notes of the Ballou Basket Company would be as acceptable to you as the old notes, and we herewith inclose to you new notes made out in this way. Two of them we have dated December 1st, — the dates to which the interest has been paid. The third we have dated back to February 13, 1895, to which date interest has been paid. If this is satisfactory to you, kindly return to us the old notes.
“Yours truly,
“Ballou Basket Company,
“W. D. Ballou, Pres.”

Inclosed in this letter was a note for $3,000 to Mrs. Ellis, and two, of $2,000 each, to Mr. Ellis, signed by the Ballou Basket Company.

January 28, 1896, there was sent to Mr. Ellis a letter from the Ballou Basket Company, in which he is told of the embarrassment of .the corporation; and, among other things, the following is said:

“By figuring with our local banks, we were finally enabled to arrange for an additional line of credit with them by giving them a bill of sale of our entire property as collateral only. * , * * We cannot, therefore, pay any of our obligations maturing after January 25th, upon which date this bill of sale was executed. We shall therefore have to ask you to renew the $300 note which we gave you at that time for the interest due on your notes. * * * We will pay the interest on the $2,000 due on the 13th of February, and we do not wish you to have any uneasiness whatever regarding your claims against us, as this arrangement may be only temporary; but, whether temporary or otherwise, it enables us to continue business, whereby we expect to pay every dollar of our indebtedness, and the interest on all that we owe. * * * We inclose you a new note for $300, with interest, and send you a check for the interest due on the $300 maturing on the 8th. We will, pay you the interest on this $300 every four months. We trust this will be satisfactory to you. Yours truly,
“ Ballou Basket Company,
“W. D. Ballou, Pres.”

These letters were forwarded to Mr. Ellis, who was in California with his wife.

In February a letter was sent in which the following occurred:

‘ ‘ I have been figuring with some parties who have a considerable amount of money, and I have good reason to believe that I could make a sale of $10,000 worth of our stock, provided that you and Mrs. Ellis would take stock in our company to the amount of your claims; i. e., $7,000. If this were done, our total liabilities being about $25,000, we should be able to pay off all of our indebtedness, with the exception of about $8,000.”

Mr. Ellis did not return the notes, but he answered these letters, finding fault because the local creditors had been secured, and Mrs. Ellis and himself had been left unsecured. A reply was made to his letter, in which an explanation was made in detail of the circumstances which made it necessary to give this security.

In May, 1896, on their way from California, Mr. and Mrs. Ellis came to Belding, where the manufacturing plant of the Ballou Basket Company was located. Neither of them suggested a refusal to accept the notes of the corporation, and a return of them; but they looked through the plant, and asked for an explanation of the giving of the security to the local creditors. This was made in detail in the presence of Mrs. Ellis. Mr. Ballou’s version of what then occurred is as follows:

“After he had heard my full explanation, he says, ‘ You recognize, don’t you, you owe Mrs. Ellis and myself $7,000, just as much as you owed these other people ?’ I says, ‘Certainly I did.’ He says, ‘Well, do you think it was just an honorable thing to do, to secure all the other principal creditors and shut us out ? ’ I told him that it was the only thing left for me to do, and that I was trying to look after my own interests somewhat; that my equity was behind theirs; * * * that, if I had given an assignment, the whole thing would have gone out of my control, and I wouldn’t have stood any show. Of course, I admit it was made somewhat for my interests as well as Dr. Ellis’.”

Then Mr. Ballou explained what he meant by his equity being behind theirs; that the claims would have to be paid before the stockholders could get anything.

“ Mr. Ellis said the proper thing to have done was to have made an assignment for the benefit of all alike.
Q. That assignment he had talked about was the property of what concern ?
“A. Ballou Basket Company. That is all I had. I didn’t have a dollar’s worth, except what I had in that company. * * *
Q. Did either of them in that conversation say one single word about that they did not take the corporation, but that they looked to you and Mrs. Bidwell for their pay?
A. No, sir; was no mention made of any old matters at all.”

During this visit at Belding, Mr. Ellis had a talk .with Mr. Leonard, the president of the bank which had taken security, and Mr. Van Benschoten, in which he spoke of the claim of $7,000 against the corporation as being one which was just as good as the claim of the bank, and that it was practically cut off by the bank.

After Mr. and Mrs. Ellis returned to New York, other correspondence followed in relation to paying the interest. Mr. John Ellis died in December, 1896. Mr. W. D. Ellis was soon thereafter appointed one of the executors, and soon thereafter made inquiry by letter in relation to these notes. In his letter he stated, among other things:

“It was my father’s desire that I should do nothing to-injure your success, which I will comply with, if possible; but I must know just where we stand in the matter, as up to the present moment I have not found securities enough (and it is my opinion that there is not enough with what will hereafter be found) to pay off his cash bequests to his relatives and the church. Therefore some of the paper he held will have to be forced.”

A detailed statement of the giving of the notes was sent him, and a statement of the affairs of the company was also sent him. Considerable correspondence followed looking to the relief of the company; but its affairs did not improve, and, treating the $7,000 as a claim against the corporation, it became insolvent, and in September, 1897, a receiver was appointed. In April, 1898, one of the mortgages was foreclosed. In May, 1899, Mr. W. D. Ellis returned the notes of the Ballou Basket Company which had been sent to John Ellis December 30, 1895, and claimed to hold the defendants in this case on the original notes. The $3,000 note given by Ballou & Co. was not found. A bond was filed by the plaintiff, and this suit was begun.

'It is claimed on the part of the plaintiff that “there is, in general, no presumption that the note of a third person is taken in absolute payment, but the burden of such an agreement is on the debtorand that in this case there is no proof the new notes were to be taken as payment of the old ones. We cannot agree with counsel in this conclusion. The plaintiff was notified that all the property of Ballou & Co. had been transferred to the corporation, who assumed all the liabilities of Ballou & Co., and' that the new notes were sent to take the place of the notes of Ballou & Co. We do not think, under the circumstances disclosed by this record, the notes so sent can be retained for years, and then, after the corporation has been closed out, the debt can be asserted against the makers of the original notes. The case is controlled by Sage v. Walker, 12 Mich. 425, where it is said:

“The effect of taking a second note upon the vitality of the first is sometimes determinable by the law, and sometimes by the contract under which it was given and received. In the present case the correspondence of the parties, which went to make up the contract, shows that the second note was given and received in discharge of the first. Walker sent forward that note to be retained only upon condition of a surrender of the first. Sage was bound to return one or the other. By retaining both, he left it with the defendants to say that he had taken the new note upon the conditions Walker required, and the first note must be considered as surrendered up.” •

See, also, Michigan Mut. Life Ins. Co. v. Bowes, 42 Mich. 19 (51 N. W. 962); Riverside Iron Works v. Hall, 64 Mich. 165 (31 N. W. 152).

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., took no part in the decision.


text:
    MONROE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Injury at Railroad Crossing — Negligence—Conflicting Evidence — Question for Jury.
    Where, in an action for injuries received at a railroad crossing by a collision of plaintiff’s carriage with a car which was being kicked across the highway, plaintiff’s testimony tended to show that he stopped, looked, and listened before entering on the track, that the car was without lights or brakeman, and that no signals were given by the engine from which the car hhd been detached, the question of defendant’s liability was properly submitted to the jury, though the testimony on' its behalf was directly contradictory to that of the plaintiff.
    Error to Kalamazoo; Adams, J.
    Submitted October 25, 1901.
    Decided January 28, 1902.

      Case by Emor Monroe against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Boudeman & Driver, for appellant.

      E. M. Irish, for appellee.
   Moore, J.

The plaintiff obtained a judgment against defendant for injuries received by him. The defendant has brought the case here by writ of error, claiming that a verdict should have been directed in the court below in its favor.

The record discloses that the plaintiff was driving a single horse before a covered buggy. His son was with him, leading a colt, which was following behind the carriage. They were going east on Main street, intending to cross the tracks of the defendant company on Main street, just east of the station. There was a train of cars on Main street obstructing the street, with the engine headed south. Without waiting for the train to move away, the plaintiff turned north on Porter street, which runs nearly parallel with the railroad track. As he drove north on Porter street, there would be between him and the railroad tracks the railroad station, then an open space, then an elevator and other buildings. After going north on Porter street, he turned east on Kalamazoo avenue, which is one of the principal streets in the city. The elevator building came out to the south line of Kalamazoo avenue. There were four tracks of the defendant company across Kalamazoo avenue, some of them joining each other just south of that street.

It is the claim of the plaintiff that, as he turned into Kalamazoo avenue, his horse was upon a walk; that, when he got within 12 or 15 feet of the first track, he stopped his horse, and looked and listened, and saw no moving train, and 'heard no bell or whistle; that he then proceeded east, and, when he reached the second track, he was run down by a passenger coach, which had been detached from the two other cars and the locomotive, which car was “kicked” across the street. He insists no bell was rung, or other signal given, and no lights were on the rear of the car, and no brakeman was upon it to give warning of its coming or to control its movements. The carriage in which the plaintiff and his son were was overturned and crushed, passing under the rear platform of the car. It was the claim of the defendant that plaintiff did not stop and look and listen; that the bell was rung, and that, before the train began to back, the whistle was blown; that it was not dark enough so a light was needed; and that there was a brakeman on the car, who attempted to warn the plaintiff when he saw him coming. It is also defendant’s claim that, if plaintiff had looked, as he ought to have, done, after passing the elevator building, he would have seen the approaching car.

In addition to the oral proof and the map and photographs which were introduced in evidence, the jury was taken to the scene of the accident, and saw the situation of the streets, buildings, and tracks. The testimony was as conflicting as it could well be. The version of the plaintiff was sustained in whole or in part by several witnesses, while quite as many were sworn upon the other side. The case was tried with great care. The judge gave a very long and carefully prepared charge, in which he correctly stated the law applicable to the case. It would not profit any one to set out the testimony in detail, but, unless this court is to weigh the testimony, and decide what portion of it should be believed and what rejected, there was a disputed question of fact to go to the jury. The following cases state the law applicable to the case at bar: Guggenheim v. Railroad Co., 57 Mich. 488 (24 N. W. 827); Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Freeman v. Railway Co., 74 Mich. 86 (41 N. W. 872, 3 L. R. A. 594); Schindler v. Railway Co., 87 Mich. 400 (49 N. W. 670); Lehman v. Steel Works, 114 Mich. 260 (72 N. W. 183); Kentucky Cent. R. Co. v. Smith, 18 L. R. A. 63 (93 Ky. 449, 20 S. W. 392), and the many cases cited in the note.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J. took no part in the decision.


author: Hooker, O. J.

text:
    TAFT v. KENT CIRCUIT JUDGE.
    Benefit Societies — Reoeiveks—Claims—Assessments.
    Under 2 Comp. Laws, § 7518, providing that the receiver of a mutual benefit association may continue its business for the purpose of paying all death claims accrued at the time of his appointment, and may make assessments on the members liable therefor, a receiver of such an association, appointed on a petition for its dissolution under 3 Comp. Laws, chap. 300, may be required to levy an assessment for the purpose of paying a death claim accruing after the filing of such petition, but before his appointment.

      Mandamus by Harvey 0. Taft, receiver of the Masonic Life Association, to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order allowing a claim against the association.
    Submitted October 29, 1901.
    Writ denied January 28, 1902.

      Bood & Hindman, for relator.

      Glapperton & Owen, for respondent.
   Hooker, O. J.

The affairs of the Masonic Life Association went into the hands of a receiver under a decree dated December 12, 1896, upon a petition for its voluntary dissolution under chapter 282, 2 How. Stat. (chapter 300, 3 Comp. Laws), filed August 23, 1896. The receiver reported the amount of claims approved at $57,000, besides $11,000 of contested claims. In that case we sustained the .receiver in his levy of assessments upon members to pay death claims which accrued before the petition for dissolution was filed. Calkins v. Angell, 123 Mich. 77 (81 N. W. 977). In the present case a beneficiary asks that the receiver be compelled to levy an assessment for a death claim which accrued after said petition was filed, but before an adjudication was had upon it, and consequently before a receiver was appointed, and while the association was in charge of and under the control of its own officers.

We are of the opinion that the statute prescribes the rule to be followed by providing that the receiver may, by order of the court, continue the business for the purpose of paying all death claims which have accrued at the time of his appointment, as was intimated in Calkins v. Angell, though that case did not assume to decide the question, it being then unnecessary. 2 Comp'. Laws, § 7518; Calkins v. Angell, 123 Mich. 80 (81 N. W. 977). The statute being clear, decisions of other States should not control.

We concur in the decision of the respondent, and the writ should be denied.

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


author: Montgomery, J.

text:
    FISH v. THOMPSON.
    1. Landlord and Tenant — Agreement to Surrender — Breach —Summary Proceedings.
    An. agreement by a tenant to surrender bis lease at a future date cannot be enforced by summary proceedings, but the landlord’s remedy, in case of a breach of the agreement, is an action for damages.

      2. Same.
    Defendant, who had rented a house for a year, and gone into possession, notified the owner, before the expiration of the term, that she would like to vacate the premises, and was advised that she would be held for the year’s rent unless another tenant could be procured. Afterwards B., desiring to rent the house, had several interviews with defendant, who informed her that she was going to leave, and finally fixed a time therefor, and told B. that she could put her goods in the house, which B., having taken a lease from the owner, proceeded to do. Defendant failed to vacate at the time agreed on, and the owner brought summary proceedings to recover possession. Held, that there was no actual surrender of the premises pursuant to the agreement, in the absence of which the suit could not be maintained.
    Error to Eaton; Smith, J.
    Submitted November 13, 1901.
    Decided January 28, 1902.
    Summary proceedings by Jane Fish against Mary A. Thompson to recover the possession of leased premises. From a judgment for complainant, defendant brings error.
    Reversed.
    This case is brought to this court upon writ of error from the circuit court for the county of Eaton, and is an action of summary, proceedings to recover the possession of land. The facts, as shown by the testimony of witnesses for the plaintiff, are as follows:
    Plaintiff, Jane Fish, is the owner of a house and lot in the city of Eaton Rapids, described as lot 2 of block 7 in Dutton & Leonard’s addition to the village (now city) of Eaton Rapids. In April, 1900, plaintiff, through her agent, one Floyd Peterson, rented the premises to defendant, Mary A. Thompson, for the period of one year, at a rental of $7 per month. The defendant took possession of the premises on the 12th day of April, 1900. The lease was verbal.
    About the 1st of September, defendant, during a conversation with Peterson, the agent of plaintiff, expressed a desire to vacate the premises. Peterson testifies that he made no answer of any kind, and that, about two or three weeks later, she again spoke of leaving the place, on the ground that the rent was too high, and that later, some time in October, she again expressed a desire to leave. Peterson answered, asking her if she knew she had rented the place for a year, and told her that, if she left the place before the year was out, he should hold her for the year’s rent, unless he got another tenant. This was the last conversation he had with her about leaving the place.
    In the meantime, about September 1st, one Maria Bishop called at the premises, in company with a Mr. Skinner, and was informed by Mrs. Thompson that she did not intend to keep the place. Just a week later, Mrs. Bishop again called, and saw Mrs. Thompson about vacating the place; and later, about September 20th, she called at the premises the third time for the same purpose, and was informed by Mrs. Thompson that she would leave the place at some time between the first and middle of November, — Mrs. Thompson finally saying that she would set the time at the middle of November. And thereupon Mrs. Bishop moved some furniture into one room of the house, drew some wood upon the lot, and put a few vegetables in the cellar; Mrs. Thompson having previously told her that she could put goods in the house.
    Some time prior to the last talk Peterson and Mrs. Thompson had about her leaving the place, and, according to the testimony of Mr. Peterson, about September 20th, Mrs. Bishop leased the premises from Peterson for one year, with the privilege of two. This, also, was a verbal lease. There was no contract or agreement between Peterson, Mrs. Thompson, and Mrs. Bishop concerning what should be considered as giving up and accepting possession of the premises, or that the placing of the g'oods in the house by Mrs. Bishop should be considered as the giving up of possession by Mrs. Thompson, and the receiving of possession by Peterson.
    Mrs. Thompson remained in possession of the premises, and continued to occupy the house with her family; and on the 38th day of November, 1900, complaint was made and summons issued for the purpose of recovering possession of the property, under 3 Comp. Laws, §§ 11164-11180. The case was tried before a justice of the peace December 13, 1900, and plaintiff recovered. Appeal was taken to the circuit court, where plaintiff again recoverea.

      Elmer N. Peters, for appellant.

      Fred J. Slayton (Russell C. Ostrander, of counsel), for appellee.
   Montgomery, J.

(after stating the facts). The circuit judge charged the jury as follows:

“I charge you, as a matter of law, that an oral agreement made by defendant in September or October to vacate and give up possession of the premises and surrender her rights under the lease to plaintiff or her agent, Mr. Peterson, on November 15th, in consideration that she would be released from her obligation to pay rent for the balance of the year, would not terminate her right to hold possession of the premises, unless, in pursuance of such agreement, she did actually vacate the premises, or a portion of them, * * * and complainant, or her agent, Mr. Peterson, by some unequivocal act, received back a portion of the premises. In other words, there must have been not only a promise by Mrs. Thompson to complainant or her agent, Peterson, to vacate the place and surrender her rights under the lease on November 15th, but this promise must have been acted upon by Mrs. Thompson, by vacating and giving up possession of a part of the premises, and by complainant or her agent accepting said part.”

Error is assigned upon this instruction, and also upon the refusal of the court to direct a verdict for the defendant.

There seems to be no disagreement between counsel as to the law of the case. It is well settled that an agreement by a tenant to surrender at some time in the future the possession of lands does not, if broken, give the landlord the right to enforce the agreement by summary proceedings. He must resort to his action for damages in such case. There must be, in addition to the agreement to surrender, an actual giving up of the lands to the landlord, or other person for him. See Baumier v. Antiau, 65 Mich. 31 (31 N. W. 888); Id., 79 Mich. 509 (44 N. W. 939). Counsel for complainant recognize this rule, but they say:

“Defendant wanted to surrender. The situation was brought about enabling her to surrender, so as to satisfy her landlord. She did surrender both her lease and possession. How else can the fact be explained that Mrs. Bishop drew her property upon the premises ? The fact that defendant was accorded the right to stay a few days, —to fix a leaving time, — for her own convenience, does not change the logic of the facts.”

We do not think the case open to this inference, under the undisputed facts. It is not claimed that Mrs. Bishop, in moving some of her goods upon the premises, did so under the understanding that there was a present surrender of the premises. There was no suggestion on the part of any of the parties that the defendant was, from the date when these goods were placed upon the premises, to hold the same at the sufferance of Mrs. Bishop. Quite the reverse was true. Defendant was accommodating Mrs. Bishop, by permitting her to move some of her property upon the premises. It was not the intention to surrender these premises to Mrs. Bishop, and from thence on become her mere licensee. On the other hand, Mrs. Bishop was a licensee of the defendant. It is true that there was, in addition to this, an agreement to surrender on the 15th of November. But this was executory, and never acted upon. While the conduct of defendant has been somewhat captious, we are constrained to hold that she continued the tenant of complainant, and that recovery should not have been permitted.

The judgment will be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., took no part in the decision.


text:
    SUPREME COURT, ORDER OF PATRICIANS, v. DAVIS.
    1. Benefit Societies — Change of Beneficiary.
    Restrictions in the laws of a fraternal beneficiary society as to the method of changing beneficiary are matters of contract between it and the member, so that a change made otherwise by the member, assented to by the society during his lifetime, affords no ground for complaint by the beneficiary.
    2. Same — Delivery of Certificate.
    Delivery of a benefit certificate to an officer of the society in his individual capacity, as custodian for the member, is a sufficient delivery to the member.

    Appeal from Berrien; Coolidge, J.
    Submitted November 14, 1901.
    Decided January 28, 1902.
    Bill of interpleader by the Supreme Court, Order of Patricians, against William D. Davis and Beulah Davis, an infant, by Fred Gay, her guardian, to determine the right to the proceeds of a benefit certificate. From a decree for defendant Beulah Davis, the other defendant appeals.
    Affirmed.

      W. J. Barnard, for appellant.

      Benjamin F. Heckert, for appellee.

       See Wagner v. Knights of Honor, 128 Mich. 661, 668 (87 N. W. 903).

   Hooker, C. J.

The complainant, a fraternal organization, issued a certificate of membership to one Edith Davis. It provided for the payment of a benefit of $1,000 upon her death, half to her husband and half to her daughter. After her death the complainant paid $500 to the daughter’s guardian, and, as both guardian and the husband claimed the remainder, it filed this bill of inter-pleader, which both defendants answered, admitting the controversy, and introduced testimony regarding their respective claims. The circuit judge sustained the claim of the daughter, and her stepfather has appealed.

The case turns upon an alleged change of beneficiary, the validity of which is denied on three grounds:

1. That the issue of the new certificate was not in conformity to the provisions of complainant’s articles of association and by-laws.
2. That it was not made at the request of Edith Davis.
3. That the original certificate, was procured under a contract between Edith Davis and her husband that, if he would pay the expenses and assessments upon said certificate, he should have one-half of the benefit, and that his rights cannot be affected by a gift to the daughter of such share.

The laws of the order prescribe the method that shall be taken by the member to change the beneficiary, which he has a right to do. The restrictions as to method are matters of contract between himself and the society, over which- the beneficiary has no control. Any arrangement between the member and the society by which the former clearly indicates his desire for a change, and indicates the new beneficiary, is sufficient, if satisfactory to the society, and acted upon by it before the member’s death. That it is a matter of contract between the parties is indicated by the decisions cited and quoted in the case of Grand Lodge A. O. U. W. v. Fisk, 126 Mich. 356 (85 N. W. 875), following the rule discussed by Nib. Acc. Ins. & Ben. Soc. p. 405 et seq. Where the method prescribed has not been followed, and the society has not assented to the change of beneficiary, or acted upon it, the courts hold that no change has been made; but it is otherwise if the society has treated the acts of its member as a satisfactory compliance with the contract, and acted upon it by issuing a new certificate. Id. pp. 419, 429. In the present case the proofs show to our satisfaction that an attempt was made by the member to comply with the contract, and that the society, acting through its proper officers, accepted it as sufficient, and caused the necessary papers to be made; and, while they were not delivered to the assured or her agent, it was because an officer of the company was asked to act as custodian of them for the assured. This he did in a personal and individual capacity; the certificate being, to all intents and purposes, delivered. We are not convinced that Mr. Davis had a contract right to be and remain the beneficiary, or that any fraud or undue influence caused Mrs. Davis to make the change.

The decree is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., took no part in the decision.


text:
    METZ v. PEOPLE’S SAVINGS BANK.
    Appeal — Record—Evidence—Presumptions.
    Where the record does not purport to contain all of the testimony, it will be presumed that there was evidence to support the judgment.
    Error to Wayne; Donovan, J.
    Submitted November 14, 1901.
    Decided January 28, 1902.
    Garnishment proceedings by Herman Metz against the People’s Savings Bank, as garnishee of Lewis Klein. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lehmann Bros, and F. J. Biggs, for appellant.

      Keena & Lightner, for appellee.
   Moore, J.

April 20, A. D. 1899, Herman Metz commenced a suit in justice’s court against Lewis Klein, and obtained a judgment July 7, 1899, for $110.50 damages and $2 costs. On April 20, 1899, the defendant was summoned as garnishee defendant. On the 25th day of April, 1899^ the bank disclosed that there was no money on deposit in the name of Lewis Klein, but that there was on deposit by him under the name of John Klemm the sum of $604.95, but that on the 13th day of January, 1899, said bank had been served with a garnishee summons issued out of the circuit court for the county of Wayne in the suit of Margaret Klein against Louis Klemm, alias John Louis Klemm, alias Louis Klein, and that said bank had filed its disclosure in said last-named suit January 17, 1899, and had not been released from said garnishment by any order of said circuit court.

This proceeding against the garnishee defendant was commenced July 18, 1899. A trial was had, and judgment rendered in favor of Mr. Metz against defendant bank, and on August 5, 1899, an appeal was taken to the circuit court. 'In the circuit court an amended disclosure was filed in addition to the one already filed, in which it was stated:

“That on the 25th day of April, 1898, said bank was enjoined by the circuit court, at the suit of Margaret Klein against Lewis Klein, from paying any money deposited in said bank; that on the 2d day of June, 1898, by an order of said court in a suit wherein Margaret Klein was complainant and Lewis Klein defendant, said bank was enjoined from paying out any money deposited therein by said Lewis Klein; also that on the 13th day of January, 1899, said bank was served with a writ of garnishment issued out of said circuit court in a cause wherein Margaret Klein was plaintiff and Louis Klemm, alias John Louis Klemm, alias Louis Klein, was defendant, and that said bank, on the 17th day of January, 1899, filed its disclosure, setting forth that said bank had on deposit to the credit of John Klemm the sum of $604.95.
“That on the 25th day of April, 1898, said Klemm had' executed and delivered an assignment of his deposit in said bank for legal services, and said assignment and said pass-book were delivered to one Humphrey, who presented the assignment on the 25th day of April, 1898, but that payment was refused on account of said injunction; that said assignment was several times later presented by Mr. Humphrey, but, pending the order of the court, no moneys were paid on said order; that on the 29th day of June, 1899, said bank, under an order of Judge Hosmer, paid the attorney of Mrs. Klein $500, and to Mr. Humphrey the sum of $114.”

The case was tried before Judge Frazer and a jury. A verdict was rendered in favor of the plaintiff. A motion was made for a new trial, which motion was granted. The case was then tried before Judge Donovan, who, among other things, told the jury:

“Without going into details, or without repeating it over, it is very clear now that once, when all the parties were before the court, — Humphrey and all of them,— Judge Hosmer made an order telling what should be done with this money. He directed that the money be paid over by the bank to a certain person; and I am convinced that it would work great confusion, and tend to disturb the force and power of judgment and court orders, if one judge should ignore or pass by what another had done. And in fact that order, until it is revoked, — and it never has been by Judge Hosmer, officially, in my judgment,— is just as binding as any other order ever issued officially out of this court. And, even to make it more binding here, the bank has a right to take his signature as to where they will pay the money, the same as on an injunction. And, to make it more binding, this case came on before Judge Frazer, and, after a hearing and judgment, he reconsidered the matter on a motion for a new trial, and said, in disposing of that motion: ■
“ ‘ I think I was in error in submitting this case to the jury at all. The motion made by the defendant to have the case taken from the jury at the close of the plaintiff's testimony should have been granted, and a motion for a new trial is therefore granted, without costs.”' t

Judge Donovan then directed a verdict in favor of defendant. The plaintiff has brought the case here* by writ of error, and contends the court should not have directed a verdict, but should have allowed the plaintiff to show that, though Mr. Humphrey had an assignment of the bank book and the money in the bank, it was in fact the money of Mr. Klein, and that this raised a question of fact for the jury.

We do not think the record is in such a condition that we can say the judge erred in his disposition of the case. It does not purport to contain all the testimony. It does contain the order of Judge Frazer in granting a new trial, but it does not purport to contain upon what record that order was based. The record also contains the order of Judge Hosmer, but it does not purport to contain any of the other proceedings in that case. It does not show whether the files and proceeding's upon which the two orders were based were or were not introduced in evidence. The certificate of the judge reads as follows:

“And, inasmuch as the said several matters and exceptions as aforesaid, and the assignments of error thereon, do not appear by the record of said judgment, the counsel for the plaintiff did request the circuit judge to put his hand to this bill of exceptions at Detroit, in the county of Wayne, on the 11th day of March, A. D. 1901.”

In this condition of the record the case is controlled by McGraw v. Insurance Co., 54 Mich. 146 (19 N. W. 927); Conger v. Railroad Co., 86 Mich. 76 (48 N. W. 695); Crowell v. Truax, 94 Mich. 585 (54 N. W. 384); Grand Trunk R. Co. v. Ives, 144 U. S. 408 (12 Sup. Ct. 679).

J udgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., took no part in the decision.


author: Grant, J.

text:
    GREAT HIVE OF THE LADIES OF THE MACCABEES FOR MICHIGAN v. SUPREME HIVE OF THE LADIES OF THE MACCABEES OF THE WORLD.
    1. Appeal — Motion to Dismiss — Res Judicata.
    Where a motion to dismiss an appeal from an order overruling a demun-er to a bill of complaint, based on the claim that the demurrer was special, and the order therefore not appeal-able, is denied, the question is res judicata, and cannot again be raised on the hearing of the appeal.
    2. Equity Jurisdiction — Bill of Peace — Injunction—Benefit Societies.
    Where a bill in equity by a fraternal benefit association against a like association avers its incorporation in Michigan, and the amendment of its articles of association authorizing it to extend its work into other States; asserts its title to a ritualistic book of procedure, its right to use it in such other States, and a mere license to defendant to use it; alleges that defendant is claiming the exclusive right to such ritual in other States, and is threatening, by repeated suits and actions against complainant, and has already by overt acts attempted, to prevent it from using such book in other States; asserts a consequent irreparable injury; and prays that such book be decreed to be its property, and defendant enjoined from interfering with its use thereof, — it amounts to a bill of peace, entitling complainant to injunctive relief.
    3. Same — Sufficiency of Bill.
    Such bill is not objectionable as alleging conclusions of law, instead of facts, in relation to title, right t.o use, and amendment of articles of association.
    4. Benefit Societies — Amendment of Articles of Association.
    A fraternal beneficiary society organized under 2 Comp. Laws, chap. 212, may amend its articles of association under the general statute relating to corporations (3 Comp. Laws, § 8533), if not authorized so to do by the organic act.
    Appeal from "Washtenaw; Kinne, J.
    Submitted November 19, 1901.
    Decided January 28, 1902.

      Bill by tbe Great Hive of the Ladies of the Maccabees for the State of Michigan against the Supreme Hive of the Ladies of the Maccabees of the World, and others, to establish complainant’s title to a certain ritualistic work, and for an injunction. “From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.
    The bill of complaint contains the following allegations: That complainant is á fraternal benefit association, composed exclusively of women, and organized under Act No. 119 of the Public Acts of 1893, as amended, having its principal office at Ann Arbor, and as such is not auxiliary or subordinate to any other organization; that the meeting of complainant association termed “Review of the Great Hive,” when convened, has supreme legislative, executive, and administrative authority, and as such is endowed with exclusive power to make all laws, rules, and regulations for its government, and the government of its members, that it may deem expedient; that complainant meets in such review but once in two years, and that its next meeting will be in the month of June, 1902, and in the interim of such meetings its executive committee is vested with full authority and power to execute and perform all its executive and administrative functions not otherwise limited; that said Act No. 119 provides that all associations incorporated thereunder shall be carried on for the sole benefit of its members and their beneficiaries, and not for profit; and, having a lodge system, with a ritualistic form of work, and a representative form of government, may provide for the payment of benefits to its members and their beneficiaries from a fund derived from assessments upon its members. The general objects of the order are to unite fraternally women between the ages of 16 and 70 years, and to provide benefits to those under the age of 50; to give moral and material aid to its members, and those dependent upon them; to establish a fund for the relief of its sick and distressed members; and to care for the living and bury the dead.

      That complainant’s plan of increasing its membership and extending its beneficent objects is to solicit accessions to membership, and, in connection therewith, to establish in various communities subordinate hives, of which it now has in existence about 800, all located within this State, and having an aggregate membership of 55,000 and upwards ; and that at the last review of complainant, held in June, 1900, such action was taken and had that its executive committee was instructed to extend its work to other States, Provinces, Dominions, and Territories, and to solicit accessions to its membership and organize its subordinate hives therein, as in the judgment of such committee was deemed expedient; that complainant had, at the time of filing its said bill of complaint, completed all preparations and arrangements, and was fully prepared to execute such direction and extend the work of the order to other States of the United States and the Dominion of Canada; that at such time there were in existence three other organizations, among others, incorporated under said Act No. 119, Pub. Acts 1893, known as the “ Great Camp of the Knights of the Maccabees for the State of Michigan, ” the “Supreme Tent of the Knights of the Maccabees of the World,” and the “Supreme Hive of the Ladies of the Maccabees of the World,” all having their principal office at Port Huron; that such great camp had a membership of about 100,000, confined largely to this State; said supreme tent a membership of about 200,000; and said supreme hive a membership of about 80,000, — such last two memberships being mostly outside of this State, and within other of the United States and in the Dominion of Canada.
    That the history of these associations establishes that prior to the 29th of June, 1880, there existed in Canada and in New York and Michigan an association known as the “ Supreme Tent of the Knights of the Maccabees of the World,” such association being incorporated on said last-mentioned day in New York, under an act passed in said State in 1848 entitled “An act to provide for the incorporation of benevolent, charitable, scientific, and missionary societiesthat the membership within this State was known as the “Great Camp of the Knights of the Maccabees of the World;” and on the 12th of January, 1881, a joint committee of conference of such supreme tent and great camp met in the city of Port Huron, and the great camp assumed the liabilities of the supreme tent in consideration of the latter joining in a convention for the formation of a new constitution, and shortly thereafter such constitution was agreed upon and formed, and on the 11th day of May, 1881, the legislature of this State passed an act entitled “An act to provide for the incorporation of Subordinate Tents of the Knights of the Maccabees of the World, and the Great Camp thereof for the State of Michigan” (Act No. 143, Pub. Acts 1881), and on the 10th day of June following such great camp met, and thereafter became incorporated under said act, and in the month of September following prepared new laws and a ritualistic form of ceremony, and since that time has continued to be and is the “Great Camp of the Knights of the Maccabees for Michigan;” that said supreme tent became defunct in 1882, and was reorganized in December, 1883, through the action of said great camp.
    That in May, 1890, complainant, under authority granted it by said great camp, was organized, and on the 5th of June, 1891, the legislature of this State passed an act entitled “An act to provide for the incorporation of the Great Hive and Subordinate Hives of the Ladies of the Maccabees of the State of Michigan ” (Act No. 120, Pub. Acts 1891); that complainant did thereupon adopt laws and originate ritualistic and ceremonial work for its use and government, which laws and work, with certain amendments, have remained in force since such time, and are now governing and used by complainant; that in October, 1892, the supreme hive, defendant herein, was organized by such supreme tent as an auxiliary thereof, and that thereupon complainant, “without giving or intending to give any exclusive right therein, did grant to such supreme hive permission and leave to use its said ritualistic and ceremonial work, and since such time the said supreme hive has used the same under and by virtue of such permission and leave, with certain changes made therein.”
    That, in the prosecution of complainant’s work of extension, it became necessary for it to apply to the commissioners of insurance, secretaries of state, and other officers having charge of foreign corporations in such States, Provinces, Dominions, and Territories for leave and license to do business therein, and that complainant had amended its articles of incorporation, and made all preparations necessary to apply to such officers for such leave and license; that defendant now makes the sole, unfounded, and unconscionable claim that, as against complainant, the right to use its incorporate name, and the leave heretofore granted to defendant by complainant to use such ritualistic and ceremonial work, is an exclusive right, and precludes complainant from extending its work outside of the State, and from enjoying and using its incorporate name or ritualistic and ceremonial work outside of the State, and that, if complainant is allowed to extend its work, the supreme hive, defendant, will lose some of its membership by reason of the similarity of names and of ritualistic and ceremonial work in the two orders, coupled with the fact that a lower rate of assessment prevails in complainant organization than in such supreme hive, and as a result a pecuniary loss will accrue to the latter.
    Complainant denies that the permission and leave granted defendant to use its ritualistic and ceremonial work is an exclusive right that vests in defendant the right to preclude complainant from extending its order or from enjoying and using its incorporate name and its ritualistic and ceremonial work outside of the State, or that any confusion will arise thereby, and avers that, if the claims so made by defendants are well founded, they are unconscionable, for the reason that complainant took, created, and became entitled to use and enjoy its incorporate name and such ritualistic and ceremonial work, and acquired the right to use and enjoy the same, before the defendant supreme hive was organized or existed, and avers that the only claim of authority or right of defendants to use such ritualistic and'ceremonial work is the permission and leave granted by it, and that, should it be true, as claimed by said defendants, that such supreme hive would suffer a lessening of its membership, or its growth be retarded, and a pecuniary loss arise to it by the extension of complainant order, such results are but the natural consequences of the selection of preferable associations by those desiring to become members, and that this furnishes neither legal nor equitable ground upon which defendants can claim the right to exclude complainant from so extending its order, and does not warrant defendants in interfering with complainant in such extension.
    That complainant is organized, and its assessments for the payment of death and other benefits and expenses are based, on the minimum rates warranted by the experience of its officers, and, in order to keep such assessments at the present prevailing rate, it is necessary to enlarge its field of operations, and that the lowest rates of assessments are maintained only by the infusion of sufficient new members each year to keep such rates at the minimum cost, and that in this State the expense of securing such members is now out of proportion to the results obtained because of its present large membership therein, and that its sole object and purpose in extending its work outside of the State is that its members may be afforded continued benefits by its present low rate of assessment.
    That the officers, representatives, and agents of the .defendant supreme hive having charge of its business in this State, and in the several States, Provinces, Dominions, and Territories wherein complainant desires and intends to extend its business, have threatened to bring and maintain actions and suits, both at law and in equity, against complainant and its officers, representatives, and agents in the courts of each of the several States, Provinces, Dominions, and Territories whenever and wherever application is made by it for leave and license to do business, and that the board of trustees of the. supreme hive have advised complainant and the members of said committee that they will begin, maintain, and prosecute such actions and suits whenever application is made by complainant for such leave and license to do business; that complainant recently applied to the commissioner of insurance of this State for leave and license to file certain amendments to its articles of association, deemed expedient by it, and, at the time such application was heard, defendant supreme hive, acting through its board of trustees and officers, and through counsel selected by them, in pursuance of such plan and design on their part to begin, maintain, and prosecute such actions and suits, appeared before said commissioner, and protested and filed objections on behalf of said supreme hive to the amendments proposed by complainant to such articles of association, and then and there announced and stated that it was the purpose and intention of defendants to begin, maintain, and compel complainant to defend such actions and suits in each of the several States, Provinces, Dominions, and Territories whenever complainant should apply for such leave and license, and thereby interfere with, harass, and prevent complainant from so extending its work, and force complainant to defend such actions and suits in such several States, Provinces, Dominions, and Territories.
    That at the hearing before said commissioner of insurance, and on the 37th day of November last (1900), complainant was allowed to amend its articles of incorporation, as asked for; and that such articles were so amended, and that it has taken all steps necessary to apply for leave and license to the proper officers of the several States, Provinces, Dominions, and Territories to do business therein; and that complainant is desirous of and now fully prepared to extend its business; and that, upon the announcement of the decision of such commissioner of insurance, Bina M. West, one of the officers of defendant supreme hive, and one of the defendants herein, was interviewed by a representative of a designated newspaper at Port Huron, and that her statement appearing in such paper of November 27, 1900, was the authorized declaration of defendants, their officers, representatives, and agents, of their purpose to oppose complainant in the execution of its work, and to litigate complainant in its said extension, in every possible way; and that protests have already been filed with the commissioners of insurance of the several States against the right of complainant to so extend its work.
    It is the purpose and intention of defendants, their officers, representatives, and agents, to begin, maintain, and pi’osecute such actions and suits against complainant, its said committee, officers, representatives, and agents, both at law and in equity, in the several States, Provinces, Dominions, and Territories, as soon as complainant shall apply for leave and license to do business therein; the result of which would be to impose upon complainant the burden of defending a multiplicity of suits in such several States, Provinces, Dominions, and Territories, and would occasion irreparable injury to it in the prosecution of its work outside of this State, and impose upon it needless, annoying, and harassing litigation, at large expense, — all of which, in the interest of complainant and of said supreme hive, should be avoided.
    The bill prays that said ritualistic and ceremonial work may be decreed to be the property of complainant; that complainant may be decreed to be authorized and entitled to use and enjoy the same in any State, etc., which it may enter, freed from any claim of right on the part of the defendants to interfere; that it be decreed the use of its incorporate name as the name of its principal organization, and the use of the name “ Subordinate Hive of the Great Hive of the Ladies of the Maccabees for the State of Michigan” for its several subordinate hives, and the exclusive use of such names in any State, etc., that it may be authorized to enter; and that said defendants may be permanently enjoined from maintaining or prosecuting any suits, either at law or in equity, against complainant in other States, etc.
    The demurrer is as follows:
    “1. The said bill tenders no issue.
    “2. Said bill sets out no rights of complainant that are invaded by defendants.
    “ 3. The said bill is not so framed as to submit any subject-matter to the jurisdiction of the court.
    “4. There are no rights averred in the bill which are sought to be protected by the injunction asked.
    “5. The allegation in said bill that defendants are using the ritual by leave and license is an allegation of law.
    “6. There is no allegation of injury to complainant because of defendants’ use of the ritual.
    “7. Complainant does not allege in said bill that it has any right to engage in business in other jurisdictions than Michigan.
    “8. The bill shows on its face that defendants dispute the legal right of complainant to do business outside of Michigan.
    “9. The said bill does not disclose that the disputed matters of law have ever been settled by a court of competent jurisdiction.
    “10. A fear of suits and actions is the only injury alleged in said bill, and this is not such an injury as entitles the complainant to an injunction.
    “ 11. The said bill is not a bill of peace.
    “12. A suit or action in equity cannot be restrained by injunction.
    “13. The laws of different States afford different remedies and rules of right respecting competing corporations and corporations using the same, or nearly the same, name or designating title; and in this respect the laws of other States differ from the laws of the State of Michigan, as do also the rules and regulations of commissioners and secretaries applied to determining the Tight of a new foreign corporation to do business in said States.
    “14. Defendant association has the right to use and have in its assistance in the conduct of its business already established in other States, and in saving itself from improper and injurious competition therein, all the laws, rules, and regulations of each State in that behalf afforded, and its rights and remedies in such other States should not be determined or limited by the laws of Michigan.”

      From an order overruling the demurrer, defendants have appealed. 1

      De Vere Hall (Benton Hanchett, of counsel), for complainant.

      Lincoln Avery and Russell G. Ostrander, for defendants.
   Grant, J.

(after stating the facts). 1. It is urged that the demurrer is special, and that an appeal will not lie from the order overruling it, under the case of Taylor v. Taylor, 87 Mich. 64 (49 N. W. 519). This question was raised by a motion to dismiss the appeal for that reason, and the motion was denied. It is therefore res judicata.

2. If this were purely an injunction bill, there would be much force in the contention of the learned counsel for the defendants. But it is essentially a bill of peace, as defined in 3 Enc. PI. & Prac. 556, and Sharon v. Tucker, 144 U. S. 542 (12 Sup. Ct. 720). It alleges certain property rights in the complainant; that the defendants cleny these rights, and assert hostile rights in themselves; and that they have no foundation in fact or law for such denial and assertion. If complainant can, by proofs, establish its title to these property rights, it would follow that defendants should be enjoined from interfering with the use of such property rights by complainant. The case presented by the bill is similar to that of threatened and continued trespasses to land. The complainant in such cases must allege and prove his title to the land. Having established his title, the court will then inquire whether the defendant has threatened to commit trespasses thereon, and intends to carry his threats into execution. If the court so finds, an injunction will be granted. So complainant in this case asserts in its bill title to a ritualistic book of procedure, the right to use the same in other States, Territories, and foreign countries, the amendment of its articles of association for that purpose, and a mere license to the defendant association to use it. It avers not only threats made, but overt acts already taken, by defendants to prevent this use of its property by complainant, and consequent irreparable injury. It also avers that defendants claim the exclusive right to the ritual. The demurrer admits these allegations to be true. The principal reason urged against the bill is that these allegations as to title, right of use, and amendments are conclusions of law, and that the pleader should have stated the facts on which they are based. The facts are sufficiently averred. It was not necessary to aver the proofs. The pleader has asserted in his bill that complainant has duly amended its articles of association. This is an assertion of a fact of which the amendments and the corporate action to make them will be the evidence. Even if Act No. 119, Pub. Acts 1893 (chapter 212, 2 Comp. Laws), does not authorize complainant to amend its articles of association, the general statute authorizing such amendment does. 3 Comp. Laws, § 8533; Detroit Chamber of Commerce v. Secretary of State, 109 Mich. 691 (67 N. W. 897).

The jurisdiction of the court to enjoin defendants from prosecuting suits in other States and countries is not denied by counsel. Their sole claim is that the bill makes no case for interference. The principle of the jurisdiction in such cases is stated by Mr. Justice Story in his Equity Jurisprudence (sections 899, 900). Not only does the bill aver that many suits are threatened, but that defendants have already made preparations to put these threats into execution. The case thus made is one for the interposition of a court of equity, under the rule established by many cases. A landowner, whose trees or houses are threatened with destruction by trespasses, is not required to wait till a trespass has been committed and injury done; neither is he required to wait till a stream has been diverted to his injury. Courts of equity will give him a remedy by injunction. Stone v. Lumber Co., 59 Mich. 24 (26 N. W. 216); Boston, etc., R. Corp. v. Salem, etc., R. Co., 2 Gray, 1; 1 High, Inj. § 18; Smyth v. Ames, 169 U. S. 517 (18 Sup. Ct. 418); Newaygo Manfg. Co. v. Railway Co., 64 Mich. 114 (30 N. W. 910).

“The principle of injunctive relief against a tort is that, whenever damage is caused or'threatened to property, admitted or legally adjudged to be the plaintiff’s, by an act of the defendant, admitted or legally adjudged to be a civil wrong, and such damage is not adequately remediable at law, the inadequacy of the remedy at law is a sufficient equity, and will warrant an injunction against the commission or continuance of the wrong.” Adams, Eq. 207.

The same principle controls the present case. The averments of the bill are sufficient to put the defendants to an answer.

Decree affirmed, with costs, and the case remanded for further proceedings.

Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., took no part in the decision.


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    LORD v. NATIONAL PROTECTIVE SOCIETY.
    1. Benefit Societies — Nonpayment of Assessments — Forfeiture —Estoppel.
    The acceptance of past-due assessments by a benefit society, and their retention until after commencement of suit by the beneficiary, estop it to set up a forfeiture for nonpayment within the stipulated time. •
    2. Same — Siok Benefits — Exemptions—Surgical Operations.
    A provision in a sick-benefit certificate, that it should not cover sickness resulting from surgical operations not necessitated by injury, will not deprive the insured of benefits accruing after an operation which was resorted to as a means of curing a pre-existing disease, and which did not cause any independent disability.
    Error to Lapeer, Smith, J.
    Submitted November 20, 1901.
    Decided January 28, 1902.

      Assumpsit by Leon Lord against the National Protective Society of Bay City on a benefit certificate. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      E. L. Campbell and Geer, Williams & Halpin, for appellant.

      Herbert W. Smith, for appellee.
   Moore, J.

The plaintiff brought this suit to recover a claim against defendant because of his illness for a period of several weeks. The trial judge directed a verdict in favor of defendant. A written application was made, followed by a certificate of insurance, the material parts of which read as follows:

Application: “I hereby agree that this accident indemnity does not extend to nor cover disappearance, nor to any bodily injury of which there shall be no external or visible signs, nor to medical nor surgical treatment not necessitated by injury or made within ninety days of its occurrence. * * *
“And I hereby further agree that the society shall not be liable for sickness or disease originating during the first ninety days, or after date of reinstatement under same, that this certificate is in full force and effect.
“I am aware and agree that I should be entitled to benefits for sickness only for the actual number of consecutive days that I am confined to the house, and under the care and subject to the personal calls of a registered physician in good standing, following the first week’s sickness. * * *
“ I hereby warrant that the foregoing answers made to all the questions on both sides of this application are complete, true, and correct, whether written by the applicant or not; and if the answers and statements made are not full, complete, and true, or if any condition or agreement shall not be fulfilled as required'by such certificate, then the certificate issued hereon shall be null and void, and all money paid thereon shall be forfeited to said society. And I hereby agree that they, and the terms of this certificate to be issued in consequence hereof, and the by laws, amendments, or alterations that may be made thereto, shall be the basis of membership between me and said society.”

The certificate reads:

“For and in consideration of the payment of the membership fee, and of the representations and agreements and warranties contained in the application for membership, and the further payment of the monthly premium of one dollar on or before the first day of each month hereafter, the National Protective Society does hereby accept Leon Lord * * * as a member, and by virtue of said membership entitling the member to all the benefits given under his policy. * * *
“After membership for ninety days, without delinquency, immediately prior to the beginning of sickness, should the member, by reason of sickness or disease, be wholly incapacitated from transacting any and every kind of work or business, and as the result thereof be entirely and continuously confined in the house, and under the charge and subject to the personal calls of some regularly qualified physician, the society will pay the said member, as hereinafter provided. * * *
“And it is further provided and understood that this policy shall cease and be void unless the payments to he made thereunder shall be promptly paid on or before the first day of the month in advance, and, if not so paid, the society shall not be liable to pay the sum assured, or any part thereof, and all payments heretofore made thereon shall be forfeited and become the property of the society. * * »

On the back of the certificate are the following:

“This certificate of membership is subject to the following conditions and requirements, which are referred to on face of policy: * * *
“ The insurance under this contract shall not extend to nor cover disappearance, or injury, whether fatal or nonfatal, of which there is no visible mark on the body of the injured; nor extend to nor cover accidental injuries, sickness, or death resulting directly or indirectly from * * * medical or surgical treatment not necessitated by injury, or operations, except amputations necessitated by injury, and made within ninety days of happening of same.
“If at any time the holder thereof, by reason of nonpayment of dues on the first of each month, allows his certificate to lapse, said member may be reinstated under said certificate, if he so desires, provided he is in good health and free from injury on date of said reinstatement; and it is understood and agreed that the acceptance by the society of delinquent dues does not entitle the member to benefits of any kind, the cause of which arose during such delinquency, nor if occurring on the day of reinstatement, and that, in case of such reinstatement, benefits shall accrue solely on the same terms as though a new application had been made and a new certificate issued. * * *
“Failure to pay any premium required by the society, whether the member is disabled or not, or a continuance of a period of fifty-two weeks’ total disability by accident or thirty-two weeks by sickness, or the loss of one or two limbs or both eyes, will immediately terminate membership and insurance in this society. A printed or written notice mailed, postage prepaid, to the last address given as it appears on the books df the society, shall be considered a legal notice.
“ The observance of the provisions and conditions aforesaid, the strict compliance therewith, and the continuance of this contract are conditions necessary to the insurance hereof, and to its validity and enforcement, and no waiver shall be claimed by reason of the acts of any agent or person, unless such acts shall be specially authorized in writing over the signature of the secretary of the society.”

The record shows that the plaintiff, on June 15, 1899, made application to become a member of the defendant society. Mr. Hurd, the solicitor, at the time of taking plaintiff’s application, stated to him that the monthly dues of $1 could be paid at any time during the month, and that “lots of the members paid late in the month,” or words to that effect. The certificate was issued to plaintiff, and dated at Bay City, June 16, 1899. The dues were paid up to August 1st at the time the application was made to Mr. Hurd, he at that time directing plaintiff to pay the subsequent dues to William Swan, defendant’s local secretary at Imlay City.

The payment of $1 for August was made on August 25th by Emma Lord, plaintiff’s sister, who also made all the other payments. Before this money was paid, she asked Mr. Swan if it made any difference paying so late in the month, and he replied that it did not, and added, in almost the words of the soliciting agent, that “lots of the members paid late in the month.” Relying upon this statement, the money was paid. A day or two after making this payment, Miss Lord received a notice, sent from the home office, that failure to make the August payment had caused the certificate to lapse, and Mr. Lord stood suspended, and directed him to be reinstated by paying $1 to their local secretary or at the home office within 10 days, if in good health. The August dues having a day or two before the receipt of the notice been paid and accepted by the local secretary, Miss Lord thought the notice required no further attention. No health certificate was ever asked for or furnished, nor did plaintiff, nor any one for him, ever sign, nor was he asked to sign, any request for reinstatement. The September money was paid on or about September 6th, and was entered on the receipt book in the ordinary way, no health certificate or other blank being required or furnished. October 2d the dues for October were paid, and in the ordinary way, and differed in no way, as far as the insured knew at that time, from payments made on or before the 1st of the month.

Plaintiff was taken sick with an attack of appendicitis on September 29th, at Peterborough, Ontario, and immediately notified the defendant company. The defendant company wrote plaintiff that they could not consider his claim, because he had lapsed August 1st for nonpayment of dues. At this time the local secretary had not remitted to the home office the August and September dues, which had been paid to him by Miss Lord. In a letter written by them on October 11th in reply to one from Mr. Campbell, plaintiff’s attorney, pointing out to them that plaintiff had paid his money to Mr. Swan, and that he expected his indemnity, the defendant society wrote they had no record of having any dues from Leon Lord, and asked that receipts be sent. This was done October 13th, plaintiff’s attorney at the same time saying that Mr. Lord’s people had tried to keep him in good standing. To this the defendant replied, saying that it would send its adjuster to assist in settling this claim. The adjuster — Mr. Horton— came, and was informed of the circumstances under which the money was paid, and why, and was also told that plaintiff had undergone an operation for appendicitis, but raised no objection to the claim on that ground. Neither did the society in any of its correspondence.

When Mr. Swan, the local secretary of defendant at Imlay City, to whom the money had been paid, made his return for October, some time before the 25th of the month and after the 11th, he sent $3 to the company on account of plaintiff, and stated that the $3 was for August, September, and October dues of Mr. Lord. The money was accepted and retained at the home office, and has never been returned, nor any offer to return made. The society has never refused to reinstate a member on the payment of the current month’s dues without a reinstatement fee.

The circuit judge was of the opinion plaintiff could not recover, because the authority of the local agent was restricted, and that he could not waive the forfeiture clause by assuring the plaintiff that payment any time during the month would be sufficient, and by accepting the August, September, and October payments. The record discloses the collections were made by the local secretary; that the insured had been told from the time he made his application that payment any time during the month would be sufficient. The payments were made to the local secretary for each of the months of August, September, and October as payments of dues. They were accepted by him in payment of the dues. They were not forwarded as made by him to the home office, but were retained by* him until he forwarded his October report, when he included them in his report as dues from Mr. Lord for the months of August, September, and October. The home office did not repudiate his acts, and decline to receive the money as dues,, and return it, but, at the time suit was brought, it retained the money, and still has it. Under this condition of things we do not think it necessary to discuss whether the local agent could waive the time of payment of these dues or not. It was one of the things the home office could waive. The law does not favor forfeitures, and we do not think the home office can receive and retain this money when it was paid as dues, and at the same time claim a forfeiture. See Beebe v. Insurance Co., 93 Mich. 514 (53 N. W. 818, 18 L. R. A. 481, 32 Am. St. Rep. 519); Rediker v. Insurance Co., 107 Mich. 224 (65 N. W. 105); Hilt v. Insurance Co., 110 Mich. 517 (68 N. W. 300); Turner v. Casualty Co., 112 Mich. 425 (70 N. W. 898, 38 L. R. A. 529, 67 Am. St. Rep. 428); Jones v. Assurance Co., 120 Mich. 211 (79 N. W. 204), and the cases there cited; Wallace v. Mystic Circle, 121 Mich. 263 (80 N. W. 6), and the cases there cited.

The circuit judge was also of the opinion that plaintiff was not entitled, under the certificate, to any benefit which accrued after the operation for appendicitis. The plaintiff gave testimony tending to show that he was taken ill, and was obliged to go to the hospital, where it was found he was suffering from appendicitis. After he had been ill 10 or 11 days, the attending physicians decided that, in the proper treatment of the disease, a surgical operation was necessary. One of the physicians testified:

‘ ‘ I found him suffering from an acute attack of appendicitis, for which I treated him medically until the 10th of October. Plaintiff had symptoms of suppuration in the region of the appendix, which demanded immediate surgical treatment for the purpose of removal of the pus and diseased tissue and establishing drainage. * * * The operation was imperative in plaintiff’s case to save his life, inasmuch as the pus was burrowing in an unusual direction, upwards under the liver, which, without operation, would certainly have caused death.
Q. State whether or not the operation performed by you on October 10, 1899, caused, either directly or indirectly, any sickness separate and distinct from the sickness or disease previous to that time ?
“A. It did not.”

If this testimony is true, it cannot be said the illness occurred because of surgical treatment, but, on the other hand, that the illness made the surgical operation a necessity as a means of curing the illness.

Some other questions are presented, but we think they can readily be cared for by the learned circuit judge.

Judgment is reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred. LONG, J., took no part in the decision.


text:
    PECK v. WEBB.
    Deeds — Construction—Boundaries.
    Plaintiff and defendant purchased a parcel of land bounded on the east by a meandered lake, and containing some 62 acres within the meanders; title being taken in the name of plaintiff. Thereafter plaintiff quitclaimed an undivided one-half of the land to defendant, the deed reciting that it was understood that the parties should, by subsequent conveyance, divide the property equally, plaintiff to have the south half and defendant^the north half. Plaintiff afterwards conveyed to defendant the north 31 acres, and defendant conveyed to plaintiff the entire parcel ‘ ‘ lying south of the north 31 acres each deed reciting that it was made to carry out the agreement specified in the quitclaim. Held, that, in determining the south boundary of the 31 acres, the land should be measured to the meander line only, and not to the water’s edge, thereby effectuating the expressed intention of the parties to divide the land equally.
    Error to Muskegon; Russell, J.
    Submitted December 10, 1901.
    Decided January 28, 1902.
    Ejectment by William Peck and Jennie Peck against Nathan H. Webb and Belle C. Webb'. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Arthur Jones, for appellants.

      Sessions & Sutherland {W. E. Osmun, of counsel), for appellees.
   Hooker, C. J.

White Lake encroaches upon the E. of section 29, township 12 N., range 17 W., and said' half section was platted by the government into four lots; lot No. 3 being bounded .on the north and west by the quarter lines, and on the east by the lake. Its acreage is given at 64.40 in the plat. Peck and Webb undertook to obtain a title to lot 3, and are supposed to have done so, by buying various outstanding tax and other claims, except as to one or two small parcels, which are not in dis-pute. These conveyances fan to Peck, and on December-14, 1897, he made a quitclaim deed to Webb of “the undivided one-half of lot 3, section 29, town 12 north, range 17 west, excepting the block George Heald, and lands sold Newell, Avery & Co. on the south side, — in all about 64 acres, more or less.” The following is a provision of such deed:

“ It is understood and agreed that the said parties shall divide said property equally; the said William Peck to have the south half in fee, and the said Nathan H. Webb to have the north half; said division to be made by voluntary conveyance to be hereafter executed. ”

The excepted parcels aggregate 2.46 acres. After this deed was made, a deed to the entire lot was obtained by the parties from the holder of the original title.

This land had been platted into village lots, and the parties, after acquiring title, obtaiñed a decree vacating this plat, and then undertook to divide the land, each deeding to the other. Peck deeded to Webb “the north 31 acres of lot No. 3 in section No. 29 of township No. 12 north, of range No. 17 west.” Webb deeded to Peck “ all of lot 3 in section No. 29 of township No. 12 north, of range No. 17 west, lying south of the north 31 acres, excepting the George Heald block, and lands sold to Newell, Avery & Co.” Each deed contained the following: “ This deed is made, executed, and delivered to carry out the agreement specified in a deed bearing date December 14th, 1897, and recorded in Liber 96 of deeds, on page 397, in the office of the register of deeds of the county of Muskegon, Michigan,” — referring to the deed hereinbefore mentioned.

White Lake is an expansion of White river, and contiguous proprietors owned to the center of the lake. This lot was meandered, and, as stated, was shown by the government survey to contain '64.40 acres. The plaintiff has brought ejectment for a strip of land along the boundary between the parcels of himself and Webb, and the case turns on the true boundary. As we understand the case, plaintiff contends that Webb owns the north 31 acres, and that he owns the remainder, be the same more or less. To determine the south boundary of the 31 acres, he asks that the land shall be measured to the water’s edge, while the defendant maintains that such a measurement would not give him one-half of the land, as the parties intended, as shown by the earlier deed.

We think he is right in this contention. The circumstances under which this land was obtained and divided show that the conveyance was made with reference to the land inside of the meander lines. It is true, as a legal proposition, that, in buying lot 3, they acquired title not only to the water’s edge, but to the middle of the lake; but there is no pretense that the deed to Webb of 31 acres should be interpreted to mean the north 31 acres on the basis of a measurement to the center of the lake. What did it mean, then ? There is no more reason for saying that it extended to the shore than to the center of the lake. The earlier deed shows the nature of the transaction. The parties undertook to divide a parcel of land amounting to 62 acres, as near as may be, which is just what they had within the meanders. We cannot see how the learned circuit judge could have reached a different conclusion, and his judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., took no part in the decision.