text:
    PARKS v. BROOKS.
    1. Trusts — Deeds—Setting Aside Instrument — Executors and Administrators — Fraud—Fiduciary Relations.
    The principal defendant was the administrator de honis nonoí the will of Polly Robinson, deceased, and his son was one of the heirs and devisees under said testament, of a remainder in testator’s farm, subject to a life interest in one of her daughters. Defendant, who was an uncle of complainants and fully trusted by them, administered the estate for many years. The son became subject to ill health and went to a warmer climate, during which.time his father advanced to him considerable sums of money. Approaching complainants for the purpose of procuring a release or quitclaim of their interests in the real property mentioned, in his son’s favor, defendant falsely represented the nature and effect of the conveyance, in that he stated it was only intended to vest in the son an interest which he would finally have anyway and told the grantors that they would have no interest in the property ultimately. These representations were untrue, and complainants were induced by them and by other misleading representations to sign the paper, which later proved to be a quitclaim deed of their remainder interest. The son died before the life tenant. Defendant administrator • survived his son and the life tenant, having procured a deed from the son conveying the realty to himself, and he finally disposed of the premises for $4,500 more than the inventory value. He converted the proceeds to his own use. Complainants claimed the right to an accounting and to 'follow the funds derived from these transactions as a trust fund. Held, that the court of equity would compel defendant administrator to account for the property as for a portion of a trust estate, that the relations between himself and complainants were of a fiduciary nature, and that he was chargeable with the proceeds of the sale for the benefit of complainants.
    2. Same — Principal and Agent — Trusts.
    One occupying a position of trust and confidence may not place himself in a situation in which his interest may conflict with his duty.

      3. Same — Laches—Fiduciary Relations.
    As the defense of laches rests primarily on. the theory that it would be unjust to permit a claim to be enforced by reason of changed conditions or altered situation of the parties resulting from delay, mere lapse of time unaccompanied by any elements of estoppel will not deprive a complaining beneficiary of his remedy against his trustee.
    4. Same — Mistake—Equity.
    As a general rule a mistake of law is no ground for equitable relief, but if the mistake has been induced by false representations of a party, standing in a relation of trust and confidence towards the injured one, the court of equity may interfere to remedy the injustice; or if it appear that a fiduciary perceived or knew of the mistaken view so held, and took advantage of the fact, the court will be more inclined to interpose its remedial powers.

    5. Same — Fraud—Accounting.
    And equity will require an accounting, if fraud is charged and proved or if fiduciary relations exist.
    6. Same — Accounting—Discovery.
    Chancery courts not only have a general supervisory authority over trustees and strictly trust estates, but have power to correct breaches of trust and fraudulent conduct on the part of all persons that may occupy relations of confidence; and it is not essential that the accounts be mutual or complicated or that the bill be framed for a discovery; nor is the objection that complainant h^p an adequate remedy at law tenable as a defense to the proceeding.
    Appeal from Oakland; Smith, J.
    Submitted June 28, 1915.
    (Docket No. 68.)
    Decided December 21, 1915.
    Bill by Edgar A. Parks and others against Eugene Brooks and others to set aside a deed. From a decree for complainants defendant Brooks appeals.
    Affirmed.

      Andrew L. Moore and Glenn C. Gillespie, for complainants.

      Aaron Perry and John H. Patterson, for defendant Brooks.

       Mistake of law as to effect of instrument as a ground for its cancellation is discussed in note in 28 L. R. A. (N. S.) 785.

   Steere, J.

This bill is filed by complainants to set aside as to them a quitclaim deed of certain property in Oakland county given, March 9, 1903, by themselves and Austin R. Parks to Francis Eugene Brooks, their cousin, son of defendant Eugene Brooks, on the ground that the same was obtained through fraud and misrepresentation on the part of said Eugene Brooks, and given without any consideration therefor. Complainant Ella J. is wife of Edgar A. Parks.

The property in question was a part of the estate of Polly Robinson, grandmother of said Edgar A. Parks, Austin R. Parks, Polly E. Bray, and Francis Eugene Brooks. Said Polly Robinson was a resident of the village of Birmingham, Oakland county, Mich., and died on or about January 31, 1889, testate, leaving as direct heirs at law and beneficiaries under her will two married daughters, Anna E. Parks and Martha J. Brooks. At the time of testatrix’s death, Anna E. Parks had one daughter and two sons, said Polly E. Bray, Edgar A. Parks, and Austin R. Parks; and Martha J. Brooks had one son, said Francis E. Brooks, subsequently deceased, son of defendant Eugene Brooks, who is the husband of Martha J. Brooks, and therefore uncle by marriage of complainants.

Testatrix’s will was dated October 5, 1881, and disposed of an estate inventoried at $61,809.62. Excepting five small bequests aggregating $150, this estate was all left to and divided between the two daughters Anna E. and Martha J. and their children, with a provision that, in case of the decease of any one of the children before receiving his or her share, said share should go in equal proportions to the surviving brothers and sisters of such deceased child or children. Luther Stanley, of Birmingham, was nominated executor in this will, and for a time acted as such; but after three or four years he resigned; and defendant Eugene Brooks was appointed on December 27, 1892, by the probate court of Oakland county, administrator de bonis non with the will annexed, and had continued in charge of the estate as such administrator up to the time of filing this bill.

A portion of the estate was a business block in Pontiac, located on the main business street, and a farm of 110 acres in the township of Troy. By the provisions of testatrix’s will; the Pontiac store property and the Troy farm, so called, were given for life to her daughter Martha J. Brooks, wife of defendant Eugene Brooks, and after her decease to her son Francis Eugene Brooks. This is the property involved in the present litigation, complainants’ deed of which to their cousin it is sought to have set aside. Material paragraphs of the will essential to an understanding of the questions at issue are as follows:

Third. I give and bequeath to my daughter, Martha J. Brooks, my house and five village lots in Birmingham, which is my present homestead, together with all the household furniture therein. I also give and bequeath to my said daughter the use of my store and lot in Pontiac, Oakland county, Michigan, during her lifetime, and after her decease I give and bequeath the said property in Pontiac to her son, Francis Eugene Brooks.

Sixth. I give and bequeath to my daughter, Martha J. Brooks, the use of my farm, situated on the northeast quarter of section 19, in the said township of Troy, during her liftime, and after her decease I give and bequeath said property to Francis Eugene Brooks.

Twelfth. After the legacies and bequests hereinbefore mentioned are disposed of, settled and paid, I give and bequeath all of the remainder of my personal and real estate which I now have or may hereafter acquire as follows, to wit: The use of one-half thereof I give and bequeath to my daughter, Anna E. Parks, during her lifetime, and after her decease I give and bequeath the said one-half of my said property to her children to be divided equally between them. I give and bequeath the use of the remaining half of all my said property to my daughter, Martha J. Brooks, during her lifetime, and after her decease I give and bequeath the said remaining half of my said property to her heirs.

Thirteenth. I hereby order and direct that in case of the death of any of my grandchildren before the time of receiving his or her share of my property as above specified, the share belonging to such deceased child or children shall belong to the brothers and sisters of such deceased child, to be equally divided between them, and in case of all the children of one of my said daughters shall die before the time of receiving their share of said property, then I order and direct that the said shares shall be given to the children of the other daughter, to be equally divided between them.

Fourteenth. I hereby order and direct that before any of the rents and profits of the lands hereby set apart to my daughters for their respective use that my executor or legal representatives shall first retain and pay the taxes out of such rents and profits upon the lands of the children of such daughters, and that my said executor shall see that no timber be cut upon such land while held for the grandchildren.

Anna E. Parks died February 26, 1903. Francis E. Brooks died December 5, 1907, while his mother, Martha J. Brooks, was yet alive and in the enjoyment of her life estate. She died March 25, 1914, about seven years after the death of her son. The fact that Francis E. Brooks died before his mother, who held the life estate to the property in question, is the event which gives importance to the deed sought to be set aside, which was obtained before his death by his father, defendant Eugene Brooks, from the children of the latter’s wife’s sister, Anna E. Parks, as the children of Anna E. Parks, but for said deed, would have become fee owners of the Pontiac business property and Troy farm on December 5, 1907, entitled to possession and full enjoyment thereof on March 25, 1914, by happening of the contingency provided for in the concluding portion of paragraph 13 of their grandmother’s will.

Defendant Eugene Brooks had entire charge of the estate for many years, its final settlement being deferred by provisions of the will. The beneficiaries apparently had full confidence in him, relied upon his judgment, and left its management entirely to him without interference.

Upon the death of Anna E. Parks in February, 1903, a partial distribution to her heirs followed under the provisions of the will, and at about the same time defendant obtained from them the quitclaim deed in question running to his son, who was then residing with his parents at Birmingham, apparently in good health, attending the Detroit Medical College as a student. Receipts for the legacies he then paid them are dated March 9 and 10, 1903, and the deed is dated March 9, 1903. This deed, covering the Pontiac store property and Troy farm, was carefully and skillfully drawn to cover their contingent remainder by a competent attorney of Pontiac whom defendant employed to prepare it. He then took it to his niece and nephews and obtained their signatures, himself acting as notary and signing the certificate of acknowledgment. It is undisputed that no consideration was paid, nor did anything of value ever pass to the grantors for signing this instrument. The circumstances of its execution and the representations by which he obtained complainants’ signatures are matters in dispute which will be referred to later.

Not long after he had secured the deed, defendant negotiated with and sold the Pontiac property to Joseph S. Stockwell, the then judge of probate, for $8,000; his son executing a deed of the same to said Stockwell. Defendant received from Stockwell $3,000 in cash and a $5,000 mortgage for the balance running to his son, which he at once caused to be assigned to the Polly Robinson estate, taking out of the estate $5,000 which he deposited to his own account — in effect, as administrator, buying the mortgage for the estate from his son, he himself, however, appropriating the money under the claim as made in court that the son then owed him. The health of his son failed, and he developed tuberculosis in the spring of 1904, going to Colorado at the close of college that year, continuing there and in Florida,in failing health during most of the time until his death in 1907. Defendant testified that he advanced him money from time to time before and during his illness, amounting to as much or more than .was received for this property, but whether he had at that time advanced him $3,000, or $4,000, or $5,000 he could not tell.

On March 2, 1906, the son, Francis Eugene, deeded to his father, defendant Eugene Brooks, the Troy farm for a stated consideration of $6,000. This deed was not recorded until October 2, 1908. The Troy farm had been charged up to defendant in the inventory of the Polly Robinson estate at $6,000 and so carried in the administrator’s account until shortly after recording .this deed to himself, ’ when defendant deducted from the assets of the estate in his hands, amounting to $24,398, the sum of $6,000, thus reducing its assets for which he was accountable as administrator to about $18,000. Thereafter, with the record title of this farm in himself, he continued in control of it as owner until September 23, 1913, when he sold it to defendant Skrine and wife for $10,500, receiving $8,-000 in cash and a mortgage for $2,500. It appears undisputed by these proceedings that all proceeds from the sale of both the Pontiac business property and the Troy farm were appropriated, whether rightfully or not, by defendant Eugene Brooks during the time he was acting as administrator of the estate of Polly Robinson..

Austin R. Parks, one of the sons of Anna E. Parks, testified that he signed the deed in question understandingly, with full knowledge of its import and the contingent interest which he had in the property according to the will of his grandmother, and declined to join his brother and sister as complainants ,in this suit. Defendant Flora W. Martin was the wife of Francis Eugene Brooks, deceased, and is not shown to have any legal interest in this litigation.

The bill of complaint prays that the deeds of the Pontiac store property and Troy farm be set aside and canceled so far as complainants Polly E. Bray and Edgar A. Parks are concerned, if practicable, and, if it is disclosed this cannot be done, that defendant Eugene Brooks be decreed to account to complainants for their respective interests in the property and the proceeds thereof in accordance, as near as may be, with the provisions of their grandmother’s will. It appeared upon the trial, and was ultimately admitted by complainants, that defendants Stockwell and Skrine were innocent purchasers of the respective parcels of property they had secured title to, for value and without notice of any infirmity in their chain of title or claim of fraud in procurement of the quitclaim deed in question, and therefore the deeds should not be set aside as to them.

The suit was heard on pleadings and proofs taken in open court, resulting in a decree that defendant Brooks account to complainants for their respective interests in the property and proceeds from the sale thereof, the details of such accounting to be determined by supplemental decree following the accounting, and the bill was dismissed as to defendants Stockwell, Skrine, and Martin.

The quitclaim deed in controversy, dated March 9, 1903, was acknowledged by the grantors on March 14, 1903, according to the certificate of acknowledgment signed by defendant Brooks as notary. On its face the signatures of all the grantors appear to have been witnessed by defendant and Minnie T.'Jarvis, an employee in the Exchange Bank at Birmingham, where defendant also worked as bookkeeper. It is undisputed that Austin Parks executed the deed in the presence of both witnesses and acknowledged it before defendant Brooks, who then went alone with the paper to complainants at their homes, where they signed it at his request, in'his presence but not in the presence of Miss Jarvis. Edgar Parks and wife deny acknowledging it before defendant or any other notary, while Mrs. Bray states that she acknowledged it to her uncle in answer to his interrogation.

Complainants claim that at the time this instrument was signed by them in their respective homes at the request of defendant he led them to believe, or represented, that the property described in it was a part of their grandmother’s estate, which went directly to their cousin Francis Eugene upon the death of his mother and would not belong to them under any circumstances; that the store property at Pontiac was sadly out of repair and had'been condemned, requiring a large expenditure to put it in condition, and it was then desirable to get a clear.title to the property so that it could be disposed of and Francis receive the benefit of his share as they just had of theirs upon the death of their mother; and that they signed the paper after learning their elder brother had done so, confiding in defendant and believing his representations, without any knowledge or understanding on their part that they were releasing anything of value to them or any property that might some day become theirs, fully trusting in their uncle, who was then and had been for many years in charge of this property as administrator of their grandmother’s estate; that they first learned they had released valuable interests in said estate which otherwise belonged to them under the provisions of their grandmother’s will, after the death of their aunt, Martha J. Brooks, by whose life estate it was burdened, and about the time their uncle filed his final account in the probate court as administrator, asking its allowance and his discharge.

It is the claim of defendant that the matter of releasing complainants’ interest in this property was first suggested by part or all of the children who signed it shortly after receiving their distribution; that he had the deed in question prepared by an attorney in Pontiac and presented it to them for execution, when they signed it freely without any persuasion or misrepresentation on his part, apparently with full knowledge and understanding of its import and nature.

Of the circumstances attending their signing the deed, as detailed by complainants, Edgar Parks testified, in part: That his uncle Eugene Brooks called at their home one day, saying he was in a hurry and did not sit down. He produced a paper which he did not read, but stated that as they had got their share, or were going to get it, it was no more than right that Frank should get something then, and he would like to have witness and his wife sign the paper, which was a release of the store and farm willed to Frank, so that he would have the benefit of the property, and he ought to have it if he was ever going to.

That he “said my brother and sister had already signed it, and he said it was all property that would never come to us anyway. * * * He said it was-willed directly to Frank, and if Frank died it would go to him. N

“Q. Did he explain why he wanted you to sign the paper?

“A. Nothing more than the store property had been condemned, and he said that it would take a great deal of money to repair it. * * * Well, I simply signed it because he asked me to. He told me it was on property that could never come to me; that it went direct; it was left direct to Frank.”

That witness believed those statements, and, relying upon them, signed the paper without reading it, first learning he had signed a deed conveying a valuable interest in the estate after the death of his aunt in 1914.

Ella Parks, Edgar’s wife, gave testimony to the same effect, stating Mr. Brooks said he was in a hurry and talked to them but a moment or two, stating he had a paper which he would like to have them sign, and laid it on the table, telling what property was described in it; that she understood the farm was left to Frank after his mother’s death, and the store property also; that he stated each piece was worth about $5,000, and said he would not ask them to sign off all their rights to everything, but only on that property that went to Frank anyway; that she had never seen a paper of this kind before, but had perfect confidence in him, thinking he understood about the will and that it was all right, as he had been managing the estate for a time further back than she knew anything about; that the paper was something entirely new to her, as she had never heard of it before, and she did not know she was signing a quitclaim deed, but first learned that she had signed a deed containing valuable interests in the estate when Mr. Brooks was putting in his claim for part of the remainder before the probate court.

Polly Bray testified, in part, that she first saw the paper in her own house when her uncle Eugene first brought it there at a time when no one was at home but herself, and asked her if she was willing to sign it so Frank would receive his share before his mother died, describing the two pieces of property to her, and that she did as he requested; that he “did not come, to me at all and ask me about the paper until the day I signed it”; that everything was left to him to look after, and he had been trusted in the management of the estate, and she did not understand she was parting with anything of value which might some time come to her from the estate, but depended upon her uncle and relied upon his statements as to the paper.

Though denying that he made any misrepresentations, and testifying that complainants were fully advised by him of their rights under the will, when asked if, before the time of presenting the deed to complainants for execution, there had been any discussion to the effect that some day he would bring them a deed of this property to sign, Brooks replied:

“I don’t recall whether I did or not, but I don’t think so.”

Asked if he ever told complainants that they would get nothing in the Pontiac property or Troy farm under any circumstances, he replied:

“Well, I might have said the probabilities were that they would not get anything in that property so long as my boy was in good health, and the prospects were that he would live longer than his mother.”

In his version of what complainants said after he had given them their distribution, he quotes them, not as saying they proposed to part with any of their interest of value in the estate, but:

“That Frank should have his part of the property that his grandmother willed him, and not have to wait until his mother died until he got it * * * That Frank should have that real estate that his grandmother willed him, and what his grandmother willed him.”

We are impressed, as was the trial judge, that the testimony of defendant Brooks, considered as a whole, in the light of the undisputed facts and circumstances, is far from satisfactory and convincing; and are not prepared to disagree with the court’s conclusions that:

“His manner -of giving it and his memory or lack of memory are such that I am unable to believe a considerable part of the vital portions of it. * * * If he did not actually misrepresent the contents and character of Exhibit A (the deed), he told them as little as possible and secured their signatures.”

It is urged in behalf of defendant Brooks that he was not a trustee of the property belonging to the estate which he was administering and did not occupy such fiduciary relations towards complainants as to in any way prevent him from acting as agent for his son in perfecting his title to this property, or after-wards receiving the proceeds of its sale or taking title to it from his son in payment of debts the latter owed him; while it is contended for complainants that, by reason of his official position as administrator of the estate, he was at all times acting in a fiduciary capacity and held such confidential relations with complainants as to preclude him from acquiring, directly or indirectly, interests in property of the estate adverse to theirs, or which would tend to defeat their rights as provided by the terms of their grandmother’s will.

It is undoubtedly the law that defendant Brooks cannot, by reason of being the administrator, be classed in a technical sense as the trustee of this estate holding legal title to it and primary use of it in trust for the benefit of another; but, in a broader sense of the expression as commonly understood and as recognized by courts of equity in considering duties and responsibilities of one situated as he is shown to have been, his control of this estate involved fiduciary, confidential trust relations between him and complainants. By whatever name it may be best expressed, the principle applicable to such a situation is thus clearly stated in Keech v. Sanford, 1 W. & T. Eq. Cas. (4th Am. Ed.) 44, 62, which was quoted with approval in Trice v. Comstock, 121 Fed. 620 (57 C. C. A. 646, 61 L. R. A. 176), by Judge Sanborn:

“Wherever one person is placed in such a relation to another, by the act or consent of that other, or by the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject' or property or business, (he is in such a fiduciary relation with him that) he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated.”

In considering the situation presented by this record, strict rules of law touching parties dealing at arm’s length are of scant application. Defendant Brooks is far older than complainants, of a generation preceding theirs, and their uncle by marriage. They had known him from their childhood in the associations and confidence of kinship. They all resided in the same town, where the grandmother of a yet preceding generation had resided, and died many years, before leaving an estate tied up by a somewhat lengthy and complicated will in the details of deferred administration and contingencies, but by its general scheme and most readily understood provisions dividing the estate between her two daughters for life, after which it was to go to their children or heirs. So long as the two daughters lived, none of the grandchildren was given any legal participation in the use and enjoyment of the estate. . So long as either lived, the estate could not be closed, and its executor or administrator was charged with certain duties in respect to conserving it. Since 1892, when appointed as administrator with the will annexed, those duties rested upon defendant Brooks. Through all those years he had full charge and control. Complainants were not consulted as to its management, so far as. shown, nor informed in regard to the details.. They had confi-' dence in, relied upon, and fully trusted him without question until their aunt, his wife, died in 1914. Shortly after their mother died, in 1903, and he had distributed to them several thousand dollars each from their grandmother’s estate, he went to them with a personal appeal for their signatures to a paper which, as they were led to believe, was necessary to let their cousin Frank come into the immediate enjoyment of a portion of the estate which they supposed ultimately would be his, and which their uncle stated would never go to them under any circumstances. That they would and did rely upon him, believed what he said, and did what he asked, seems but natural and beyond reasonable doubt. What he said to them and they to him at that time are matters in dispute, with the preponderance of evidence, we think, in favor of their contention; but significant things which he did in that connection and the results are not in dispute.

At this opportune time he journeyed to Pontiac and employed an able attorney to draw up this deed to his son, which he had properly executed and witnessed at the bank by Austin, the older brother, who states he had talked it over with his uncle before and fully understood just what he was doing. He then went with it to the homes of complainants and procured their signatures when no one else was present. On its face it appeared to have been executed by all in the presence of two witnesses and duly acknowledged. Such in fact was not the case, and he knew it. As to complainants it was not entitled to record. It would undoubtedly have been equally good as a common-law deed between the parties without witnesses or acknowledgment, and the irregularity is only material in its significance as to his conduct. He was a notary, a business man of experience in conveyancing, knew two witnesses were required to the execution of a deed, and provided them for Austin’s signature at the bank, but, with the instrument so prepared that it would appear regular, secured the signatures of complainants when he was alone with them. He promptly had this deed recorded and sold the Pontiac store property, for $8,000, to the judge of probate in whose court he was acting as administrator of this estate, receiving $3,000 in cash and a mortgage of $5,000, which he, .as agent of his son, cashed by selling it to the estate, for which he as administrator purchased it. During this time his son was a student in college, married, dependent upon his father, and, as the latter testifies, heavily indebted to him. There is no evidence that the son ever spoke to or communicated with complainants on the subject, or requested his father to act as agent for him in procuring this deed, -made any suggestions or gave any directions as to what he desired done, or in any manner took part in the proceedings beyond signing such papers as his father prepared and presented to him. Asked if he had consulted his son with reference to his part in the proceeding before he carried it out, defendant answered, “I think I did.” His reason for withholding the deed of the Troy farm, given him by his son, from record for two years and until after his son’s death, was “pure carelessness on my part.” Asked why, at the time he recorded the deed, he deducted from the amount of property which belonged to the estate the $6,000, he answered:

“I had no reason, only I wanted to sell thé place at that time, and advertised it for sale.”

He sold the place for $10,500, giving the grantees a deed with an expressed consideration of $1. That he, though ostensibly acting as agent for his son, was personally, if indirectly, interested in securing this deed from complainants, seems .clear; and it is undisputed that, as a result of his activities as agent for his son, he personally, while administrator of this estate, realized the sum of $18,500 as proceeds from the sale of property which, but for the deed, would by their grandmother’s will have gone to the children of Anna Parks. It cannot successfully be denied that in these transactions he, while in a position demanding official impartiality as administrator of this estate, placed himself in relations which ordinarily excite a conflict between self-interest and integrity.

It is urged that complainants’ rights are cut off by laches resulting from delay. With this view we cannot concur. Laches does not necessarily grow out of a mere lapse of time. Complainants’ rights in and to this property were prospective and contingent. They were not enforceable until the happening of subsequent events. The possession and use of the property belonged to their aunt during her life. Shortly after her death, they first learned the full significance of the paper they had signed and of their rights under the will, after which this suit was promptly begun. Laches rests chiefly on the inequity of permitting a claim to be enforced by reason of changed conditions or relations of the property or parties resulting from delay. Here the delay has worked no wrong or changes, prejudicial to him, in the relations between complainants and defendant Brooks.

It is urged that complainants claimed ignorance of their rights, and execution of this deed through misapprehension of its import, under their contention, amounted at most to but ignorance of the law, or of their legal rights, which is no defense, and against which stands presumptive knowledge and notice by reason of the will and their deed, both of public record. In that connection, as applied to this case, the equitable considerations of fraud and mistake are allied. The general rule that ignorance of the law excuses no one, and a mistake in a matter of law is no protection, is common to all systems of jurisprudence. This rule is without exception as applied to the general laws of the country and one’s rights or duties as defined by them, but as to strictly private rights under special conditions, involving exceptional cases within equity jurisdiction, it was long ago said:

“If a man, through misapprehension or mistake of the law, parts with or gives up a private right of property, or assumes obligations upon grounds upon which he would not have acted but for such misapprehension, a court of equity may grant relief, if, under the general circumstances of the case, it is satisfied that the party benefited by the mistake cannot in conscience retain the benefit or advantage so acquired. * * * If the mistake of law, or as to his private right, be that of one party only to a transaction, it may be either that the mistake was induced or encouraged by the misrepresentation of the other party, or that, though not so induced or encouraged, it was known to and perceived by him, and was taken advantage of, or it may be that he was not aware of mistake. Whatever may be the circumstances of the case, a court of equity may, under the peculiar circumstances of the case, grant relief. But if it appear that.the mistake was induced or encouraged by the misrepresentation of the other party to the transaction, or was perceived by him and taken advantage of, the court will be more disposed to grant relief than in cases where it does not appear that he was aware of the mistake.” Kerr on Fraud and Mistake, pp. 398, 400.

Under this exception it has been held that where a sister, being ignorant of her rights under a settlement, released them to a brother, the release was not binding. Ramsden v. Hylton, 2 Ves. 304. Vide, also, Jordan v. Stevens, 51 Me. 78 (81 Am. Dec. 556); and Trigg v. Read, 5 Humph. (Tenn.) 529 (42 Am. Dec. 447), where the subject is exhaustively discussed.

It is further urged that, as the case now stands, complainants’ bill is but one “for an accounting for damages for an alleged tort,” which a court of chancery cannot entertain, as their claim involves no series of transactions between the parties concerning mutual demands and they have an adequate remedy at law. As a general rule, equity • courts may compel an accounting where fraud is charged, or fiduciary relations exist. 4 Pomeroy’s Equity Jurisprudence, § 1421.

This bill was primarily filed to set aside, and for relief from, an instrument under seal valid upon its face, purporting to convey title to real estate claimed to have been procured through false and fraudulent representations, and undue advantage taken by one in a position of trust and confidence towards complainants, a subject peculiarly within equity jurisdiction. That the intervention of innocent parties prevented the court from restoring title to complainants, and granting the full relief asked for as to all defendants, did not divest the court of jurisdiction to grant partial relief against the culpable defendant who availed himself of confidential relations to practice the imposition. Chancery courts have general supervisory power not only over trustees and strictly trust estates, but that power extends to authority to correct breaches of trust and fraudulent conduct on the part of all persons occupying relations of special trust and confidence with others. Grounds of equitable jurisdiction having been alleged and proved, a court of chancery may retain jurisdiction to fully dispose of the matter in its related issues.

“In such cases it is not necessary that the accounts should be mutual, or complicated, or that the bill should be framed for discovery, and it is no objection that an action at law sounding in damages may be brought for the breach; the legal and equitable remedies are concurrent, and complainant has his election.” 1 C. J. p. 622.

For the foregoing reasons, the conclusions reached by the trial court are approved, and the decree there rendered is affirmed, with costs to complainants.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay, who sat in this case, took no part in this decision.


source: Caselaw Access Project

author: Bird, J. Bird, J. Ostrander, J.

license: Public Domain

text:
    DARROW v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Taxation — Tax Homestead Lands ■— State — Titee — Deeds —Evidence—Presumptions—Burden.
    A deed from the State land commissioner, conveying to plaintiffs certain real property as tax homestead lands under section 127 of the tax law and under Act No. 211, Pub. Acts 1905 (1 How. Stat. [2d Ed.] §§ 1898, 2021), being in the usual form and reciting facts ^sufficient to show compliance with the statute, made a prima facie case of title in the grantee of the State who purchased the homestead property pursuant to law.
    2. Same — Occupation—Raieroads—Abandonment.
    After six months from the date of recording the conveyance from the auditor to the State, its recitals of the finding and determination of the auditor general and State land commissioner that lands deeded to the State under section 127 of the tax law as tax homestead lands were unoccupied and abandoned lands became conclusive, notwithstanding that the examiner’s report in the records of the land office showed that the lands were .occupied: Act No. 84, Pub. Acts 1903, fixing a limit after which the validity of such deeds to the State may not be questioned. See 1 How. Stat. (2d Ed.) § 2060.
    3. Same.
    Containing recitals of facts sufficient to warrant the State officials in classifying such lands as State homestead lands, the conveyance was not open to attack as not fair on its face. The finding of the auditor general and land commissioner that the land was unoccupied or abandoned was not void because conflicting with the report of the examiner, since their finding is not necessarily based on the conclusion of the latter officer.
    4. Same — Limitation of Actions — Possession.
    The fact of possession or occupancy by the owner did not operate to take the case out of the statute of limitations, and was not a reason for holding the provisions of law inapplicable on constitutional grounds. The owner had lost his rights by permitting the lands to be returned and sold for taxes, and was not entitled to hold possession.
    On Rehearing..
    5. Same — Constitutional Law — Deeds—Limitation of Actions —Mistake—Defenses.
    Though the premises affected by the action of ejectment were in part occupied and used by defendant for station grounds, the deed issued to the . State by the auditor general was fair upon its face, was recorded, and the statute of limitations (Act No. 84, Pub. Acts 1903) began to run; and the defense that the auditor’s deed to the State was based upon a finding contrary to the report of the examiner, and contrary to the facts, or was the result of a mistake, is not available after the six-month period fixed by the statute has expired.
    Error to Delta; Flannigan, J.
    Submitted June 20, 1913.
    (Docket No. 110.)
    Decided October 2, 1914.
    Resubmitted June 8, 1915.
    Former opinion reaffirmed July 21, 1916.
    Ejectment by John Darrow and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Judgment for defendant upon a directed verdict. Plaintiffs bring error.
    Reversed.

      A. H. Ryall, for appellants.

      Frank D. Mead, for appellee.
   Bird, J.

Plaintiffs brought an action of ejectment to recover from defendant the possession of lots 9 and 10 of block 6 of the village of Rapid River, in Delta county. The defendant acquired the title thereto by warranty deed on September, 29, 1896. The lots were bid in by the State for unpaid taxes for the years 1897 to 1906, both inclusive. On April 29, 1910, the auditor general deeded the lots to the State, pursuant to section 127 of the tax law (Act No. 206, Pub. Acts 1893, 1 How. Stat. [2d Ed.] § 1898), which placed them in the list of tax homestead lands. This deed was recorded in Delta county on May 25, 1910. Subsequently they were released and sold to plaintiffs by the land commissioner on December 5, 1910. The plaintiffs made their case by introducing their deed in evidence. The defendant denied the validity of the deed, and offered in evidence certain records of the auditor general’s office, which showed the report of the State land examiner to be as follows: “Owned by Soo Railway Company.. Occupied by section foremen.” In view of this report, it was defendant’s contention that the auditor general had no jurisdiction to deed the lots to the State; that the deed was not fair on its face, and that the short statute of limitations (Act No. 84, Pub. Acts 1903 [1 How. Stat. (2d Ed.) § 2060]) did not apply to defendant. From a directed verdict for the defendant, plaintiffs bring error.

1. The deed from the land commissioner to the plaintiffs was in the usual form, and its recitals showed a compliance with the law. The introduction of' it in evidence made a prima facie case for the plaintiffs under the provisions of' Act No. 211, Pub. Acts 1905 (1 How. Stat. [2d Ed.] § 2021). Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756); Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363) ; Chiodo v. Williams, 180 Mich. 367 (147 N. W. 492).

2. Conceding that the records of the auditor general’s office disclose that the finding of the auditor general and land commissioner as to the occupancy of the lots was opposed to the finding of the examiner, was this defense open to defendant, unless made within the time allowed by the statute? We think not. The statute has fixed a period within which the validity of such deeds may be questioned, and that time is within six months after the deed from the auditor general to the State is filed with the register of deeds in the county where the lands are situate. Act No. 84, Pub. Acts 1903. The defendant having failed to embrace this opportunity, it is now precluded from doing so.

But it is argued that the deed is not fair on its face, and therefore the statute of limitations never commenced to run. The deed recited that:

“Whereas, the auditor general and the commissioner of the State land office have caused an examination of said lands to be made as provided in section 127 of Act 206 of the Public Acts of 1893, as amended by Act 107 of the Public Acts of 1899, and a certificate having been filed by the examiner'showing said lands to be abandoned, and the auditor general and the commissioner of the State land office having found and determined that said lands have been returned and bid off to the State as above described; that they are abandoned, that no suit is pending in the county where said lands are situated to set aside the taxes or any of them on said lands or to remove the cloud occasioned thereby, and that no application has been made to pay said taxes or to purchase or redeem said lands.”

It is said in Fitschen v. Olson, 155 Mich. 320 (119 N. W. 3), that:

“The mode of determining whether a deed is void upon, its face ‘is to test the deed by making a reference to the authority recited in it for making the sale, in connection with the act giving the auditor power to sell. When the sale is found not to be in accordance with that power, the deed is void upon its face, because the action of the auditor is illegal, and the law presumes it to be known to a purchaser.’ ”

Had the plaintiff followed this rule and had recourse to the law and records, he would have found that the auditor and land commissioner had the power to make the determination, and that they had made it, and determined that the lands were unoccupied and abandoned. Had he continued his investigation, he would have also found that the examiner reported the lots were owned by the defendant and occupied by the sectionmen, but he would have found no provision of law requiring the auditor general and land commissioner to make a finding or classification in accord with such report. Whether the finding of the auditor general and land commissioner should have been in accord with the finding of the examiner is a legal question, which the purchaser would not be presumed to decide at his peril. For these reasons we do not think we should hold that the deed was not fair on its face.

It is further contended that the statute of limitations (Act No. 84) does not apply to an owner in possession. The construction which has been placed by this court upon that statute is that the defendant by reason of its failure to pay its taxes, and by reason of its failure to redeem its premises from sale, has lost its rights to the State, and therefore, not being entitled to the right of possession, the law deems it has no legal possession. This question was fully, discussed and considered in Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756), wherein it was said:

“Said section 127 provides that the determination heretofore mentioned shall be conclusive unless it is assailed by suit within six months. As applied to this case, this provision required the defendant in possession to commence suit against an adverse title. This circumstance does not, in my judgment, render the provision unconstitutional under the principle recognized and applied in O’Connor v. Carpenter, 144 Mich. 240 [107 N. W. 913]. That principle is this:
“ ‘One who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of the claim which the latter asserts, hut takes no steps to enforce.’ Cooley on Constitutional Limitations (6th Ed.), p. 449.
“That principle preserves the rights of the one in possession. It applies only where he has rights. In this case defendant in possession had no rights, and therefore the principle has no application.”

Our conclusion is that plaintiffs’ deed made a prima facie case, and, as the proofs stood at the close of the trial, they were entitled to a directed verdict.

' The judgment of the trial court is reversed, and a new trial ordered.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.

On Rehearing.

Bird, J.

The application for a rehearing in this case brought to our attention the statement that the lands involved herein were used by defendant in the operation of its railway. Fearing lest we had overlooked this point, we granted .the application for a rehearing. Upon the rehearing it was pointed out by plaintiffs’ attorney that this ground of relief was not raised by the defendant, either upon the oral argument or in its briefs in this court, and therefore could not, under the rule, be considered on rehearing, citing in support thereof Hutchins v. Kimmell, 31 Mich. 126 (18 Am, Rep. 164); Smith v. Walker, 57 Mich. 456 (22 N. W. 267, 24 N. W. 830, 26 N. W. 783) ; Nissly v. Railway Co., 168 Mich. 676 (131 N. W. 145, 135 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719). Inasmuch as the validity .of the taxes was not questioned, we think this point not material.

In considering the question as to whether the deed from the auditor general to the State was fair on its face, it was said, among other things, in the opinion, that had the plaintiff investigated “he would have found that the auditor general and land commissioner had the power to make the determination, and that they had made it, and determined the lands were unoccupied and abandoned.” It is insisted that this statement is not in accord with the record, because the examiner’s report (which was by reference made a part of the order of determination) stated that the lots were owned by the “Soo Railroad” and occupied by section foremen. Notwithstanding this statement, the auditor general and land commissioner found that the lots were subject to the provisions of section 127 of the tax law (Act No. 206, Pub. Acts 1893), and in pursuance thereof they were deeded to the State by the auditor general, and the land commissioner afterwards deeded them to the plaintiffs. These deeds were in regular form and contained the recital that the lots had been determined to be unoccupied and abandoned. Nothing appears upon the face of either deed to give plaintiffs notice that they were or might be irregular in any respect. The law makes these deeds prima facie evidence of title. Act No. 211, Pub. Acts 1905. Had defendant attacked the validity of the deed from the auditor general to the State within six months from the date of the recording thereof, the defects relied upon would have been available as a defense. Act No. 84, Pub. Acts 1903. Not having done so, it was precluded from making that defense. Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756). See, also, Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363) ; Chiodo v. Williams, 180 Mich. 367 (147 N. W. 492).

The judgment of the trial court is reversed, with costs to the plaintiffs.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred with Bird, J.

Ostrander, J.

(concurring). Former rulings of this court require us, in my opinion, to reach the conclusion announced by Mr. Justice Bird. It should be stated, however, in order that the scope and effect of the decision may be properly understood, that the auditor general and land commissioner did not determine that the premises here involved were abandoned, but, on the contrary, they expressly found, as the examiner reported, that the premises were occupied. Plainly, a mistake was made when, aft^r such a determination, the auditor general proceeded to deed the premises to the State. But, as is stated by Mr. Justice Bird, the deed is fair on its face, it was recorded, and the applicable and invoked statute of limitations began to run. The passing of the period fixed by the statute has left defendant without remedy for the mistake referred to. It should be stated, also, that upon the trial the defendant offered testimony tending to prove that the land was not only occupied at the time it was deeded to the State as abandoned land, but was used by the defendant as a part of its station grounds. The auditor general thereafter, but at a time when it is conceded his action would not be effectual, issued a certificate of error.

For reasons assigned by a majority of the court in Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756), I concur in reversing the judgment.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred with Ostrander, J.


author: McAlvay, J. Brooke, J.

text:
    RISBRIDGER v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Personal Injuries — Master and Servant — Licensees.
    Decedent was an employee of the defendant railroad company. He was accustomed in going to his work to travel along the right of way of defendant, a route which the public was accustomed to follow. Other servants of the company likewise made use of the tracks as a path to and from its shops. A freight train of the railroad company passing at this point about 5 o’clock in the morning, when it was dark and foggy, with the engine backing at the forward end, the tender in front, and having no light displayed, ran down decedent, who was not seen by any of defendant’s employees and who was fatally injured. Held, on rehearing, that in operating trains over a part of the right of way which was used by employees as a footpath, defendant wasv under no legal obligation to display lights and to sound the statutory signals for a crossing.
    2. Same — Yard Limits — Trespasser—Duty to Warn.

      Held, that the additional fact, not adverted to in the first, or original, holding in this case, that plaintiff’s intestate was inside the cattle guard situated at the crossing and was within the yard limit of defendant railroad company, furnished further reason for denying any right of recovery to the estate.
    3. Same — Yards-—Obligation.
    It being impracticable to prevent trespassing upon railroad tracks enclosed by a cattle guard, a trespasser takes the risk of any resulting injury; the company owes no more strict duty than not to wilfully or wantonly kill or injure him.
    4. Same — License.
    And even if decedent should be considered a licensee upon the right of way, he had no ground or right to expect that the corporation would forego its reasonable and ordinary use of the tracks.

      Error to Jackson; Parkinson, J.
    Submitted May 1, 1914.
    (Docket No. 24.)
    Decided April 19, 1915.
    Rehearing granted. Resubmitted January 19, 1916.
    Original opinion reversed and judgment affirmed March 30, 1916.
    Rehearing denied September 27, 1916.
    Case by Ada E. Risbridger, administratrix of the estate of Chauncy E. Risbridger, deceased, against the Michigan Central Railroad Company for the unlawful killing of plaintiff’s decedent. Judgment for defendant upon a directed verdict. Plaintiff .brings error.
    Affirmed.

      Price & Whiting, for appellant.

      Wilson & Cobb (Henry Russel and Frank E. Robson, of counsel), for appellee.
   McAlvay, J.

Plaintiff, as administratrix, brought suit against defendant to recover damages on account of injuries to her husband which resulted in death, claimed to have been caused by the negligence of defendant. Upon the trial, when plaintiff rested her case, the court, upon a motion to that effect made by defendant’s counsel, directed a verdict in favor of defendant and against the plaintiff, upon which a judgment in due form was duly entered. Plaintiff brings error.

The material assignments of error necessary to be considered relate to the action of the trial court in directing a verdict for defendant. In reviewing a judgment on a verdict directed for defendant, this court considers the testimony in the light most favorable to the plaintiff. The case made by plaintiff tended to show the following facts:

The injury occurred in the city of Jackson, where at the time plaintiff’s decedent was an employee of defendant, and had been so engaged for a week and a half as a car repairer in its junction shops in said city. The plaintiff’s decedent, with his family, lived on High street, in the southwest part of the city. The junction shops were located northeasterly from said street at a distance of more than one mile, and between High street and the shops the right, of way and tracks of defendant’s railroad extend continuously. At these shops defendant employed a large force of men. Many of these workmen, who lived in the southwestern part, of the city, had been in the habit for many years of going to their work in the morning and returning at night along defendant’s track. It was a good smooth footpath all the way, and where it crossed the river the bridge was covered over solid.

Plaintiff’s decedent, also, during the time of his employment, went to and from his work along these tracks of the company, having been accompanied the first two mornings by an old employee of defendant, who was his next neighbor. Many people not in defendant’s employment also frequented these tracks, going back and forth along them on foot. Such use of these tracks by workmen and others was well known by the employees of the company and the crew of the train which struck and killed Mr. Risbridger. The deceased was 53 years of age, in good health, and of good habits. He had no experience in railroad work prior to this employment. This accident occurred between 5 and 6 o'clock in the morning of November 16, 1910, when the deceased and others of defendant’s employees at the junction shops were, on their way to their work walking along these tracks.

There were no eyewitnesses to the accident. Decedent's body was found along defendant’s right of way about 75 feet northeasterly' from Belden street. He had left the house to go to his work about 5 o’clock that morning, which was dark and foggy, and had arrived at the place where he was killed before daylight. On that morning a gravel train, consisting of a very powerful locomotive and tender, 75 empty flat cars, and a caboose, of a total length of more than 3,000 feet, started from the Junction to go to Colon, a distance of 55 miles, on the Air Line Division of defendant’s road. The engine which pulled this train was backing up with the tender piled high with coal. Proceeding westerly in this manner, the back end of the tender was the front end of the train.

It is admitted that there was no headlight upon the back end of this tender as it proceeded. On the part of plaintiff, testimony was introduced tending to show that there was no light of any kind upon the rear end of the tender, and that this engine did not whistle or ring its bell. The crew of this train consisted of a conductor, who was riding in the engine on the fireman’s side, the engineer and fireman, who were also in the locomotive cab, the head brakeman, who was stationed on top of the coal on the tender for the purpose of exchanging signals with the rear brakeman by means of his lantern, and to know that the train was all right, and the second brakeman, who was back toward the rear of the train.

There are two tracks on this right of way, running parallel with each other, which are used as double tracks. The south track belonged to the Lake Shore & Michigan Southern Railway Company, and the north track, being the one upon which Risbridger was claimed to have been killed, belonged to the defendant. In the operation of the road all trains moving to the east take the south track, and all trains moving to the west take the north track. Deceased was found while it was still dark by Alfred De Fresna, a switchman in defendant’s employ, on his way to work. He was lying with his head near the south rail of the west-bound track, his legs extending diagonally towards the east track. His hat and dinner pail were on the ground near him. One foot was cut off between the knee and the ankle, entirely separated. Another man named Kimball, also employed by defendant, arrived at this place about the same time. These men undertook to do something for deceased and found that he was still alive. He revived when moved slightly, and said only a few words about being cold and wanting his hat, and then expired. De Fresna, as soon as he arrived there, ran to the signal tower, which was about a block northeasterly from the place where the body was found, for the purpose of having the towerman telephone for an ambulance, which he did, and the ambulance arrived soon after.

None of the crew of this gravel train saw any one on the track that morning, or knew that the train had struck a man, until they arrived at Colon, their destination, when the conductor received such information by telegram from the superintendent. There was testimony in the case presented by plaintiff tending to show that there was considerable blood found on the forenoon of the day on which the accident occurred on the ties and south rail of the defendant’s track at the place where the accident occurred. It also appears without dispute that, at the same time this gravel train going west passed the place where the accident occurred, a freight train passed going east toward Jackson on the south track.

There is no dispute in this record but that along these tracks the entire distance down through this railway yard the employees of defendant and all persons who desired had for many years used these tracks on their way to their work in defendant’s junction shops, or wherever they might be going, as a footpath, and this, was well known to the employees of defendant who operated trains over the tracks.

The errors assigned by appellant which we will consider relate to the charge of the court as given to the jury in granting defendant’s motion to direct a verdict, which was to the effect that defendant owed no duty toward plaintiff’s decedent, because he was a trespasser walking along the tracks of defendant’s road; that he assumed all risks in using such tracks as a way to walk upon for his own convenience or purposes, his being upon the track not having been discovered at the time by the employees of defendant. Taking this case made by plaintiff as epitomized, it must be admitted that such a case was presented as entitled plaintiff to have it submitted to the jury, unless, taking the facts as true, we find that no recovery could be had by reason of some well-settled rule of law.

We find from the facts, stated that for many years the employees of defendant, the employees of others along this track, and citizens had used these tracks as a footpath going to and from their work, or for their personal convenience. The record is clear that this was known to defendant’s employees. The crew who operated the gravel train in question were acquainted with the fact that such a custom existed. It follows that defendant company must be charged with knowledge of such a custom. This custom had grown up in a thickly populated city of considerable size. These tracks had become a footpath for the general public, which use had continued for years with the knowledge of defendant, without even posting notices prohibiting it. The inference follows that it consented to such use.

Under these circumstances, it would seem that there should rest upon defendant some duty, at least of reasonable care, owed by it toward these people whom it had permitted to make such use of its tracks. When this accident occurred, defendant must be held to have expected that the tracks were being used, as they had been used for years, by individuals on their way to work, or about their business. It would seem that the law should impose a duty upon defendant to use reasonable care in operating trains along these tracks in the darkness on that morning, where it would be reasonably expected persons were using them for a footpath. The rule laid down by the trial court is that plaintiff’s decedent on these tracks, being a trespasser, must take his chances; that defendant owed him no duty of care whatever. Admitting that such a rule is applicable in some cases, under the circumstances of this case -it appears, to say the least, to be extremely harsh.

It is admitted that there was no headlight on this train. There is testimony tending to show that there was no light of any kind upon the rear of this tender, which was the front end of the train. There was no lookout, and, had there been one, there was not sufficient light’to show the tracks ahead of the train. There is also evidence tending to show that no whistle was blown or bell rung. It is contended by defendant that the evidence shows there was an ordinary hand lantern on the end of the tender and that the whistle was sounded and the bell rung. These were questions of fact for the jury, if material. The speed of the train was from 9 to 15 miles an hour. The city ordinance prohibited a greater speed than 6 miles an hour.

The exact question involved in the instant case is one of first intention in this court. We' find, however, that there are authorities which hold that, under facts similar to those presented here, persons so using the track of a railroad company as a footpath are regarded as licensees, and that trains at such places must be operated with this knowledge in mind, which calls for the exercise of reasonable care. We quote from an accepted authority as follows:

“As a general rule, the fact that a railroad company allows the public to pass constantly on or over its tracks with knowledge of the custom warrants the inference that it consents to the use, so that a person so using the track is regarded as a licensee, and trains must be operated with this knowledge in mind, and this calls for the maintenance of a lookout, the giving of timely warning, and the keeping of the engine under proper control. The care demanded in this situation is reasonable care. The test is whether there has been such use of the track as a footpath as to support reasonable grounds to the operatives of the train upon such a track to anticipate the presence of persons on or so near the railroad track as to endanger them. And for the purpose of this rule it makes no difference that the railroad company has posted signboards warning people not to trespass on the right of way. The rule requires engines to be operated at such places with lighted headlights at night.” White's Supplement to Thompson on Negligence, vol. 8, § 1725, and cases cited.

In our opinion, the rule laid down by the foregoing authority is a reasonable one, and it cannot be considered as a departure from the former decisions of this court. It is but an application of the principle frequently applied that from acquiescence in a course of conduct for an extended time duties and obligations arise.. To hold in the instant case that the years of acquiescence upon the part of defendant to the use of its tracks in the manner stated created no duty of a reasonable care on the part of defendant toward these licensees would be contrary to both reason and authority. Our conclusion is that the trial court was in error in directing a verdict for defendant.-

The judgment of the circuit court is reversed, and a new trial ordered.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

On Rehearing.

Brooke, J.

Counsel for appellee criticise the statement of fact contained in our former opinion in this case. Certain inaccuracies and omissions do appear, which, though not controlling, may be noted as follows: The speed of the train, instead of being from 9 to 15 miles, was not to exceed 10 miles an hour. The only evidence to the contrary was given by the witness Snydex, who said:

“Well, now, I ain’t a very good judge of trains, but I should think it was running close to 15 miles an hour.”

Upon cross-examination he testified:

“I don’t claim to be able to judge the speed of trains; have had no such experience in railroading as to enable me to judge on that. I don’t claim my judgment on that subject is reliable.”

As to whether or not the forward end of the train, which was the tender of the engine, was protected by a light, the record discloses that two witnesses, whose duty it was to see that an ordinary white light (railroad lantern) was in place upon the tender while backing, gave positive testimony to the effect that the light was burning at the beginning of the trip at the Junction, and that it was burning brightly at the first stop some four miles west. The witness Snyder testified repeatedly that no light of any kind appeared upon the train. Upon cross-examination, however, he gave the following testimony:

“Q. I am talking about on the outside of the train.
“A. I didn’t see any.
“Q. I know you didn’t see any; I want to know if you will say positively under oath that there were none?
“A. I would say I didn’t see any.
“Q. Of course you would. Would you say positively they were not there?
“A. No; they might have been there. I didn’t see any.”

Two witnesses swore positively to the blowing oí the whistle at the crossings and to the constant ringing of the automatic bell. The witness Snyder testified as follows:

“I heard no whistle on that train, and no bell; even after I got out on one side, I didn’t hear any bell ringing.”

In our former opinion it was said that there was no lookout. Plaintiff’s witness Platt (examined under the statute) testified that he got up on top of the tank near its forward end with his lantern. He said:

“I went up on the tank in the performance of my duties that morning. I got up there to ride my train over the interlocker — to watch for your train, see everything is all right, the signals are all right, go up there as a lookout. * * *
“Q. You weren’t watching ahead that night for anything on the track?
“A. If there had been anybody on the track ahead of me, that is, within range of a lantern we had set up there — -I covered this territory where this man was struck or was supposed to be hit by our train — I would have seen him. * * * I naturally was looking ahead.”

This witness further testified that he continued in this position until he passed the Belden road, which would carry him beyond the point where plaintiff’s decedent was killed. The record contains no evidence tending to show that defendant’s railroad track was graded or ballasted in any other manner than was necessary for its proper maintenance; or, in other words, there is nothing in the record to indicate that the defendant maintained its track “as a good smooth footpath” at the point in question, unless the same could be said of any similar piece of track in the State.

In our former opinion it was stated that “the custom had grown up in a thickly populated city of comparative size.” While it is true that the city of Jackson is a city of considerable size, and in some portions thereof is thickly populated, the accident happened in the southwestern suburbs of the city, where the population is comparatively sparse. A further fact, not stated in our original opinion, is, we think, important. From the point where plaintiff’s decedent presumably entered upon the railroad tracks to the point where he met his death he crossed four streets. At each street intersection, the right of way being occupied by- two distinct companies, there were two warning signs stationed. Upon the defendant’s tracks likewise at each of said crossings there were placed ordinary cattle guards, some made of wood and some of metal. While the record shows that at times, at one or another of these various crossings, the cattle guards were taken up by the defendant company for its own purpose, there is no evidence contained in the record tending to show that on the morning plaintiff’s decedent met his death any of the cattle guards were out of place. A further important fact not alluded to was that plaintiff’s decedent was killed at a point well within the yard limits of the defendant company at' a point where switching operations were of frequent occurrence. *

The conclusion in our former opinion rested upon the assumption that the exact question presented was new in this State, and the case was therefore determined under the principle enunciated in volume 8, § 1725, White’s Supplement to Thompson on Negligence. No discussion of the Michigan cases bearing upon the question is contained in the opinion. It being asserted by counsel for appellee that by our former opinion several earlier decisions of the court have been overruled, it is necessary to carefully examine those cases. I am of the opinion that the exact question presented is not new in this State.

In Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914), the plaintiff was injured while walking along defendant’s track near its station on her way to the main street of the village of Durand, instead of going through the station to her point of destination by a slightly longer route. She alleged in her declaration that a custom had grown up, which had been in force seven years, to permit, allow, and compel the passengers to walk over the aforesaid course and ground to reach the highway in the village of Durand. This court, speaking through Campbell, J., said:

“The only ground urged for plaintiff was that the railroad track was very generally used as a shorter cut from the village to the depot than was furnished by the regular road. So far as defendant’s use of it is concerned, it was not shown to have differed in any way from that generally made of railroad tracks on railroad premises, and no other means of travel on it appeared than would be found on any such track. The company never took measures to light it, or to facilitate ingress and egress. The travel over it was just such as will be found anywhere along such tracks, which cannot be closed more effectually than by a cattle guard. It is impracticable to keep off trespassers from an open track, and all who go upon it do so on their own risk of such dangers as are incident directly to such use.”

In the case of Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442), plaintiff was injured while crossing the unfenced station grounds of the defendant. The court there said:

“It is apparent that persons living upon that street west of Main street find the distance to the business portion of the town shorter by going in a direct line across the tracks than by taking the highway running northeast to Main street, and then south; and, the station grounds, being unfenced, people are in the habit of walking upon and across them at will. There is no evidence indicating an invitation or license unless it be found in the fact that the defendant has taken no steps to prevent it. * * * Counsel for the plaintiff make the claim that the common practice of crossing the unfenced grounds of the defendant at this point for over 20 years had established a public easement, but they cite no authority which sustains the contention. In our opinion the evidence does not create a suspicion of the existence of an easement. There is nothing that indicates, a license even, unless it is to be inferred from the fact that the defendant did not care to contest the right of every person whose convenience might lead him to cross the premises. Technically, such people were trespassers; but it is not to the discredit of the defendant that it did not resort to violence or litigation to stop a practice that did it no harm. Whether these persons were trespassers- or naked and gratuitous licensees (which last we do not mean to intimate) is unimportant. In neither case had they the right to expect the defendant to_ forego a reasonable use of its land, in which respect it stood on the same plane as a private person” (citing O’Neil v. Railway Co., 101 Mich. 437 [59 N. W. 836]).

In the recent case of Winnie v. Railway Co., 160 Mich. 334 (125 N. W. 351), plaintiff, an employee of defendant, was injured while crossing the tracks of defendant in its yards at a point where the railroad company maintained signs notifying the public that there was no thoroughfare, that trespassers are not allowed, and that the place was dangerous. Speaking through Justice Montgomery, we there said:

“Notwithstanding this, people had, as the evidence showed, quite generally been passing over the tracks of the defendant from Treat street to Michigan street, but whether at the precise point at which plaintiff received the injury there was some doubt. But it would appear that tracks had been worn by people passing over these tracks frequently. * * *
“The case was submitted to the jury upon the two last named propositions; the circuit judge instructing the jury, in effect, that if the public had traveled over these tracks to such an extent that the defendant company knew or ought to have known of the custom, and had not stopped it, and had been accustomed to use lights and give warnings, the failure to use the lights and give the warning on this, occasion would be a breach of duty to the plaintiff, and he would be entitled to recover. * * *
“We think the case should not have been submitted to the jury upon the first question. It is difficult to conceive what more this company could have done to give warning to the general public that this was a place of danger. The evidence tended to show that a fence had been maintained which had been torn down from time to time. The yard was very plainly devoted to railroad tracks, in which cars and engines were frequently moving back and forth and were themselves a warning of danger, and, with the notices posted as they were, the public who saw fit to pass over these tracks did so with full knowledge of the danger. Except by stationing men at the highway along the track, it is impossible to conceive how the company could have more effectively warned the public that this territory was not a thoroughfare” (citing Perego v. Railway Co., 158 Mich. 225 [122 N. W. 535]).

The general doctrine affecting the duty of railway companies to trespassers is set out in section 1705 of White’s Supplement to volume 8 of Thompson on . Negligence, as follows:

“Railway Company Under no Obligation to Provide in Advance Against the Possibility of Injury to Trespassers. — Except at public crossings and a few other places, the right of way of a railroad company is its exclusive property and it owes a trespasser no greater duty than any other owner of property would owe a trespasser under the same circumstances. The railroad company is not required to anticipate the presence of a trespasser on its track or property, and this rule applies, to children as well as to grown persons. The railroad company owes no higher duty to a trespasser than not. to wantonly or wilfully injure him. It is only required to exercise ordinary care after discovering his peril not to injure him. The railroad company owes no duty to such persons to employ competent operatives, nor to keep its tracks safe for pedestrians by the use of only sound ties. It is under no obligation to stop its trains at railroad junctions- merely for the benefit of trespassers.”

Following section 1705, and up to section 1725, the author discusses the question at large, citing authorities from nearly every jurisdiction in the United States. Section 1725, the one quoted in our former opinion, and upon which our decision was predicated, is supported by decisions from several of the Western and Southern States, but finds no support in the decisions of this court.

Assuming, for the purposes of this case, that the whistle was not blown and the bell was not rung, plaintiff’s decedent is not within the class for whose benefit the statutory signals are required. In the case of Lepard v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105), the authorities are carefully collected and commented upon by Mr. Justice Stone. He concludes his opinion with the following statement:

“The whole history of the legislation upon this subject shows that it has been for the benefit of the traveler upon the highway who is about to cross, is crossing, or has crossed the highway, and probably might be invoked by a passenger who was injured by reason of a collision caused through the neglect to give the signals required.”

Further, assuming that the engine was being operated without lights, we find ourselves confronted with the decision of Winnie v. Railway Co., supra, where the court charged that, if the defendant had been accustomed to use lights and give warning, the failure to use the lights and give the warning would be a breach of duty to the plaintiff, which would entitle him to recover. We there said:

“The case should not have been submitted to the jury upon [this] question.”

The facts under which the injury occurred in the Winnie Case were, in my opinion, much more favorable to plaintiff’s, recovery than are those in the case at bar. The only point more favorable to plaintiff in this case than in that is that in the case at bar there is no evidence that warning signs were posted from point to point at the street crossings ordering the public to'keep off. This fact, however, cannot be considered of controlling significance, for, after all, the only purpose of the warning sign is to give .notice to the trespasser of the peril he exposes himself to in his unlawful use of the railway tracks. If he receives that notice through other instrumentalities, he is as adequately warned as if he stopped and read a sign advising him of his danger. This court has frequently held that the existence of the railway tracks themselves must be regarded by one entering upon them as notice that he is going into a place of danger. But in the case at bar, in addition to the fact that plaintiff’s decedent must have known he was traversing a right of way occupied by two parallel tracks within the switching grounds of the defendant company, the cattle guards which he could only cross in the half light of the early morning with more or less difficulty must have served as a further warning. The right of way of the defendant at' the point- where the injury occurred was fully fenced and protected by the statutory warning signs at the various crossings traversed by plaintiff’s decedent before his injury. Even in some jurisdictions where trespassers are permitted to recover while traversing a railroad right of way longitudinally, such recovery is forbidden when the trespasser, or licensee, is injured within the yard limits. The reason for the rule is well stated in the case of Waldrep v. Railroad & Banking Co., 7 Ga. App. 342 (66 S. E. 1030), where the court said:

“The inference that the railroad company has impliedly invited, or at least has impliedly licensed, the public to pass along or cross its tracks, which may exist as to other portions of its right of way, and which at most is an exception by which a trespasser is-raised to a licensee, cannot b§ raised as to switch-yards, because such an inference is so inconsistent with the continuous use of its tracks for switching purposes as not to admit of the presumption that there is an invitation or permission granted by the railroad to the public. * * * The supreme court and this court have both recognized that the peculiar use to which that portion of a railroad company’s tracks included in its switchyard is subjected is fatal to the creation of any inference which admits of joint occupancy at any time by any member of the public” (citing Grady v. Railroad & Banking Co., 112 Ga. 668 [37 S. E. 861]).

While the evidence in the case at bar clearly shows that the track upon which plaintiff’s- decedent met his death was used from time to time by trespassers and that such use was known to the inferior employees of the defendant, the use thereof fell far short of that made to appear in the Winnie Case, and our former opinion cannot stand unless that case is squarely overruled. I am of opinion that our orginal determination of the case at bar, under our own authorities, was wrong. The question of gross or discovered negligence is. not involved.

The report of the Interstate Commerce Commission shows that for the year ending June 30, 1914, 5,471 men, women, and children lost their lives in the United States while trespassing upon railroad tracks and cars, and that in the same period 6,354- other men, women, and children were injured in the same manner. The custom of our citizens to use the private rights of way of steam railroads as footpaths is extremely common. Railroad companies are practically helpless so far as preventing such use is concerned. The inferior employees of every railroad know of such use, and if the duty to maintain a lookout, and operate trains with reasonable care, having reference to the safety of trespassers, is imposed upon the railroads by reason of such knowledge, their efficiency as public agencies will be seriously impaired.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.

      Generally as to duty of railroad company to keep lookout for trespassers on tracks, see notes in 25 L. R. A. 289; 8 L. R. A. (N. S.) 1069, 1076; 41 L. R. A. (N. S.) 264; particularly as to speed, 11 L. R. A. (N. S.) 352.