text:
    WEBBER v. WEBBER.
    1. Mortgage — Principal and Surety — Fraudulent Conveyances.
    A mortgage given to the brothers of the mortgagor to secure a bona fide indebtedness upon which the mortgagor was liable as surety for his son is not rendered fraudulent by the fact that it was within the contemplation of the parties that other creditors of the mortgagor might thereby be delayed or defeated in the enforcement of their demands.
    2. Same—Rights of Creditors op Surety.
    Creditors of a surety who has mortgaged his property to secure the liability created by his contract of suretyship cannot compel the secured creditor'to exhaust his remedy against the principal before selling the mortgaged premises.
    3. Same—Duty as to Payment op Debt.
    Where it is fairly established by the evidence that a mortgagor was indebted to his son in a considerable amount, that the mortgage in question was given to secure a note made by a firm of which the son was a member, and indorsed by the father, and that the latter subsequently agreed to pay the note upon the understanding that the son was to repay any difference between the amount so paid and the father’s indebtedness to him, equity will not, at the instance of the mortgagor’s creditors, compel the makers of the note to satisfy the mortgage, it being clear that the mortgaged property became, in pursuance of such agreement, the primary fund out of which the debt should be realized.
    4. Same—Subrogation.
    Creditors holding liens on property of their debtor mortgaged by him to secure his liability as surety for another, to whom he was indebted in a less sum than that represented by the mortgage, are, in the order of the priority of their liens, entitled to be subrogated to the rights of the mortgagor surety to the extent that the amount realized on foreclosure sale shall exceed the surety’s indebtedness to his principal.
    5. Equity Practice—Costs.
    Under Chancery Rule No, 90, where several defendants are entitled to costs, the same are apportioned among them; and, by analogy, where a complainant prevails against several defendants, lie should be awarded single costs only.
    6. Insolvent Debtors—Necessity eor Legislation.
    The necessity for a bankrupt or insolvency law, whereby a uniform distribution of the assets of an insolvent debtor may be secured, is emphasized.
    Appeal from Kent; Adsit, J.
    Submitted January 31, 1896.
    Decided April 21, 1896.
    Bill by George W. Webber and Andrew J. Webber against Oscar Webber and others to foreclose a mortgage. From a decree for complainants, certain of the defendants appeal.
    Modified and affirmed.

      William O. Webster (J. W. Champlin, of counsel), for complainants.

      T. J. O'Brien and James H. Campbell, for appellant George F. Beardsley.

      Clute & Clute, for appellant Jacob Neff.

      N. O. Griswold, for appellant Payne Knight.

      W. W. Mitchel (George E. Nichols, of counsel), for Joseph T. Webber, defendant and appellee.
   Montgomery, J.

The complainants filed their bill to foreclose a mortgage upon property in the city of Ionia, consisting of four parcels of real estate, the cost price of which was about $20,700, to secure the payment of a note of $14,500, given by the defendants Joseph T. Webber and Thomas R. Buck, June 30, 1893, and due December 31, 1893, and indorsed and guaranteed by Oscar Webber. The mortgage was given July 14, 1893, by Oscar Webber alone, his wife not joining. The defendants George F. Beardsley, Payne Knight, Lorenzo A. Corey, and Jacob Neff were made parties as subsequent incumbrancers, they having, after the execution of the mortgage, caused levies to be made upon the property as the property of Oscar Webber. Thereupon the defendants filed cross-bills, or answers in the nature of a cross-bill, setting np that Oscar Webber was indebted to them in various sums, and that they had each caused a levy to be made on the mortgaged property; that Oscar Webber was insolvent; and that the mortgage in question was given with a fraudulent purpose of defeating the creditors of Oscar Webber in their efforts to collect their claims, and was being foreclosed with that purpose.

The case as it is presented in this court presents three questions:

First. Was the mortgage given to complainants by Oscar Webber fraudulent in its inception?
Second. If not, was it given under such circumstances, or has it been so dealt with by complainants, as to make it inequitable for them to resort to the mortgage security before they have proceeded against the makers of the note; or can the court protect these lienholders to any extent because the liability of Oscar Webber is only secondary, and because Webber & Buck, the makers of the note, should in equity and good conscience pay the note?
And, third, if the court should be of the opinion that there is power to compel resort to Webber & Buck, have they shown counter equities which limit the result?

- The circuit judge granted a decree of foreclosure, and provided for no remedy against Webber & Buck, so that his determination must have been based upon a negative finding as to the first two questions. We will consider the questions separately so far as practicable, and in their order.

It appears that Joseph T. Webber (of Webber & Buck) is the son of Oscar Webber, and on the occasion of his engaging in business, in 1886, Oscar Webber, then apparently, and probably in fact, a man of considerable means, undertook to indorse and guarantee the paper of the firm to be from time to time given to Webber Bros., composed of complainants, who are brothers of Oscar Webber; that the purpose of this arrangement was not to enable Webber & Buck to make a temporary loan, but to furnish capital, the expectation being that the loan was to be renewed from time to time, as it in fact was, and apparently increased or diminished as the necessities of Webber & Buck demanded. The $14,500 note secured by the mortgage here in question was given in the regular course of the business, and is beyond all question bona fide, representing on its face actual indebtedness of Webber & Buck, guaranteed by Oscar Webber. So far as complainants knew, Oscar Webber was a surety merely, and such, we think from the evidence, he was in fact.

Oscar Webber had, prior to December, 1892, been a member of the banking firm of Webber & Chapin, doing business at Stanton. On the 28th of December, 1892, this copartnership was dissolved, Mr. Chapin buying the interest of Webber, and agreeing to pay him $6,000 therefor in monthly installments, and agreeing to pay the indebtedness of the firm. At this time there were liabilities on certificates and to other creditors of the bank of about $150,000, and on the face of the books an apparent surplus of $23,000. Chapin continued the business until July, 1893, paying to Webber $3,000 of the indebtedness, and reducing the deposit accounts upon which Webber was liable to about $28,000. At about this date Oscar Webber went to Stanton, and sought to obtain security, but this was refused him, and he returned to Ionia, and saw the complainant George W. Webber on the same day. George asked him how Chapin was getting along, and how much of the paper Oscar was now liable on, and, on hearing that Chapin was turning out paper to the creditors of the bank, and that Oscar was liable on about $30,000 of the bank debts, asked him to pay the note. Oscar said he could not do that, but would secure it, and the mortgage was thereupon given.

We discover nothing in this transaction up to this time either unnatural or unusual. We find the creditor demanding from his debtor security, and receiving it, and while it must have been in the contemplation of both that in case of disaster to Chapin & Co., resulting in their failure to care for the obligations of Webber & Chapin, this security would work preference in favor of Webber Bros., yet under the rule of the common law, which protects the vigilant, this security is protected. Olmstead v. Mattison, 45 Mich. 617; Sheldon v. Mann, 85 Mich. 265; Hill v. Bowman, 35 Mich. 191. The transaction does suggest anew the pressing necessity of a-bankrupt or insolvency law which shall afford some protection to the less greedy and importunate creditors, and which shall render it no longer possible for a debtor in failing circumstances to prefer members of his own immediate family. But the case is not peculiar in this. Such object lessons are so often presented that it seems impossible that the attention of legislative bodies will or can be for much longer diverted from the crying need of reform in this respect. But until there is some legislation which prohibits preference, and provides for a uniform distribution of the assets of an insolvent debtor, the creditor must be accorded the right, which he undoubtedly has under the common law, of taking security, even though the effect may be to delay or defeat a less diligent creditor.

The appealing defendants are, then, subsequent lienholders, and the question is presented as to whether as such they can insist that complainants shall resort to their action against Webber & Buck before selling the mortgaged property. In 1 Brandt on Suretyship and Guaranty (2d Ed.), § 238, it is said:

“It is settled by a long-continued and unvarying current of authority that the surety may by a suit in chancery, after the debt becomes due, and before he pays it, compel the creditor to proceed to collect the debt from the principal, provided he indemnify the creditor.”

The cases cited to sustain the text, and the cases generally which sustain the doctrine, are cases in which the creditor holds no security for the debt, either from the principal debtor or his surety. But we think it is not the rule that, when a surety has given security for the payment of a debt, he may compel the creditor to resort to action against the principal, and postpone the enforcement of his claim by resort to the security. This would be going directly against the terms of the contract. The right which the surety has is to be subrogated to the claim against the principal upon payment of the debt. Colebrooke, Collat. Sec. § 215; McElroy v. Hatheway, 44 Mich. 399.

The doctrine of marshaling securities does not aid the complainants, as it is an essential precedent condition that there be two funds which may be resorted to by the creditor, and the naked promise of the debtor has not, we think, been regarded as a fund in such sense that the creditor may be compelled to resort to suit and levy on property before resorting to property specifically dedicated to the payment of the debt. Wolf v. Smith, 36 Iowa, 454.

The right of Oscar Webber before the levy by the defendants was to discharge this debt, and resort to action against Webber & Buck for the whole or such portion of the debt as Webber & Buck were bound to pay. He would also have this right if his property went to pay the debt of Webber & Buck; and we think it clear that the defendants, having acquired liens upon the property of Oscar Webber, would be subrogated to his right to the extent of this lien. 1 Story, Eq. Jur. § 563; Foy v. Sinclair, 93 Tenn. 296.

This brings us to the question which is the principal one in controversy in this case, viz., whether Webber & Buck or Oscar Webber should in equity pay this mortgage.

There is no question that, when the note was given to complainants, it was the note of Webber & Buck, with Oscar Webber as guarantor of payment. It is now claimed by Joseph T. Webber that his father, Oscar Webber, was indebted to him in the sum of $12,625, and that, after the mortgage in question was given, he asked his father how he, Joseph, was to receive his pay, and that his father agreed to pay the $14,500 note to complainants upon the understanding that he (Joseph) was to repay him any difference between what was due from his father to him, and the amount of the indebtedness to-complainants. If this claim is sustained by the proofs, and such an arrangement was in-fact made, there can be no question that, in equity, this mortgaged property became the primary fund out of which this debt might and should be realized, not only as between Oscar Webber and complainants, but as between Joseph and the creditors of Oscar.

The question of fact involved has given us no little difficulty, and the conclusion we have reached after the most careful consideration does not rest upon the absolute faith in the correctness of our conclusion which we would like to feel in all cases. We have not had the witnesses before us, and can only judge of their credibility by what appears in the record of the case. The two defendants Oscar and Joseph Webber were called by the appealing defendants, and gave testimony which, if true, fully established a liability of Oscar to Joseph on account of money held in trust for many years, and left in control of Oscar by his wife, the mother of Joseph. There are circumstances which cast suspicion upon the transaction, and create some doubt; the chief one being the long delay in paying over this fund, although there have been times when Oscar could have done so without inconvenience, and when the fund would have been very useful to Joseph, who was, during much of the time, borrowing money to do business with, and this on his father’s indorsement. On the other hand, this is explained by saying that this fact of the indebtedness of Oscar to Joseph furnished the reason for the indorsement. Without enlarging upon the circumstances, which cannot be of interest in other cases, we have determined upon the whole case that the indebtedness from Oscar to Joseph is fairly made out.

The decree of the circuit court should be modified in two particulars: First, the defendants holding liens are entitled, in order of priority, to be subrogated to the claim of Oscar Webber to tbe extent that tbe amount realized on the sale of the mortgaged premises should exceed the amount of Oscar’s indebtedness to Joseph; and we think complainants’ costs in the court below should be limited to single costs. Under Chancery Rule No. 90, if the defendants had prevailed, the costs would have been apportioned, and we see no reason why complainants should be entitled, when they prevail, to more than single costs. No costs will be awarded to either party in this court.

Long, C. J., and Moore, J., concurred with Montgomery, J. Hooker, J., did not sit.

Grant, J. I concur in-the opinion of my Brother Montgomery, except that portion of it referring to the necessity of a bankrupt law, and as to that I express no opinion.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    FITZHUGH v. RIVARD.
    Justice’s Judgment—Docket Entry—Adjournment.
    A justice’s judgment, rendered upon the failure of the defendant to appear on the adjourned day, is void, where the docket entry does not show the place to which the cause was adjourned. Waldron v. Palmer, 104 Mich. 556, followed.
    Error to Bay; Maxwell, J.
    Submitted April 7, 1896.
    Decided April 21, 1896.
    Replevin by Charles Eitzhugh, Jr., and another, against Leander Rivard. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.
    Lindner, Porter & Haffey, for appellant.

      Simonson, Gillett & CourtrigM, for appellees.
   Montgomery, J.

Defendant in this case relied upon a judgment rendered by a justice of the peace. The docket entry showed that the cause was adjourned for six days, without stating the place to which the same was adjourned. The case is ruled by Waldron v. Palmer, 104 Mich. 556. It is sought to distinguish this case from that, on the ground that in the present case the defendant in the case before the justice understood that the case was to be heard at the office of the justice. It is sufficient to say that, although the court assumed this to be the' fact, no proof was offered to show it. We do not mean to intimate that the docket entry could be supplemented in a jurisdictional matter by such proof, if offered.

The judgment is affirmed.

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


author: Grant, J.

text:
    CITY OF DETROIT v. LEWIS.
    1. Taxation—Trusts and Trustees—Nonresidents.
    It is competent for the legislature to impose a tax upon credits the legal title to which is vested in trustees, residing within the State, in trust for nonresidents.
    2. Same—Construction oe Statute.
    Resident trustees, holding credits for the benefit of nonresidents, are within the terms of section 8, subd. 6, and section 14, subd. 6, of Act No. 206, Pub. Acts 1893, providing, respectively, that, “for the purposes of taxation, personal property shall include all credits of every kind belonging to inhabitants of this State,” etc., and that “personal property under the control of a trustee or agent, whether a corporation or a natural person, may be assessed to such trustee or agent in the township where he resides.”

    3. Same.
    A trustee, against whom a judgment for taxes has been rendered, is entitled to pay it from the trust fund, and to credit himself with the amount so paid.
    Error to Wayne; Carpenter, J.
    Submitted April 10, 1896.
    Decided April 21, 1896.

      Assumpsit by the city of Detroit against Alexander Lewis and another to recover the amount of taxes assessed against certain mortgages held by defendants as trustees. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    On the 5th of July, 1892, the Detroit Gaslight ■ Company and Camille Weidenfeld, of the city of New York, executed a contract, the material parts of which are as follows:
    “ Whereas, said second party is desirous of purchasing so much of the property of said first party as is used for the purpose of making and distributing gas, and is also desirous of acquiring all of the capital stock of said first party, and has offered the said first party the price and terms therefor hereinafter named, and the directors of said first party deem it wise, and best for the interests of the stockholders of said first party, that such sale be made; and,
    “ Whereas, in order to consummate such transaction, it will be necessary to obtain the assent of all the stockholders of said first party:
    “Now, therefore, said first party agrees that it will, as soon as practicable, present the said proposition to its stockholders, and use reasonable efforts to obtain the authority of all of them to the sale of said property and stock, and, if successful in such efforts, to notify the said second party, within 90 days from the date hereof, of its readiness to carry out the sale aforesaid. And, upon receiving such power and authority from its stockholders, said first party agrees to sell, by good and sufficient conveyance, to said second party and his associates, or to such person or corporation as he may designate: * * * Provided, that if such assent, ratification, and authority from such stockholders be not obtained within 90 days from the date hereof, then this agreement becomes void and of no effect, at the option of the party of the second part, to be declared within 30 days after the expiration of said period of 90 days, and he shall have the right to purchase the holdings of the stockholders so assenting, for a pro rata proportion of said purchase money, and in any event the party of the second part shall have no cause of action against the party of the first part for its failure to obtain the assent, ratification, and authority of all of said stockholders.
    “ And, in consideration of the premises, the said second party agrees to purchase the said property and stock, and to pay therefor the sum of $1,450,000, in manner following : $450,000 within nine months after receipt of notice of the authority given by said stockholders as aforesaid, $500,000 on or before one year from the date of such first payment, and $500,000 on or before two years from the date of such first payment; such deferred payments to bear interest at the rate of 6 per cent, per annum, payable semiannually, until paid, and to be secured by a purchase-money mortgage upon the property so transferred, executed by said second party to such persons as said first party shall designate to hold the same as trustees for the stockholders of said first party. Such mortgage shall contain the usual interest clause contained in the long-form real-estate mortgage in common use in this State.
    “Concurrently with the payment by the party of the second part of said first payment of $450,000, and the execution and delivery of said purchase-money mortgage, the said party of the second part shall be entitled to, and shall be put into, the possession of said property and stock; and the board of directors of said party of the first part shall at once hold a meeting of said board of directors, and severally resign as such directors, and, as each resignation shall be accepted, the remaining members of said board shall elect such person to fill the vacancy as shall be named by the party of the second part,- and continue so to do until all of said directors shall be persons designated by said party of the second part. * * *
    “All money on hand and accounts due to said first party at the time of the transfer shall be retained by the said first party, and transferred by it to the trustees, for the benefit of its stockholders.
    “It is intended and understood that the property of said first party not expressly transferred hereby, and the purchase money aforesaid, shall be, by said first party, prior to the transfer of its capital stock to said second party, transferred to certain persons, to be designated by said first party (presumably, the persons named in said mortgage as trustees), to hold the same for division and distribution among the stockholders of said first party authorizing the sale of such stock; and, wherever the word ‘ stockholders ’ is used herein, the stockholders authorizing such sale of stock to said second party are the ones meant, and not such as may be stockholders after such transfer.”
    This contract, it appears, was carried out, the stock secured, transferred to the new corporation, and on Feburary 1, 1893, Mr. Weidenfeld executed to the defendants and Charles B. Lothrop, all of Detroit, a mortgage for $1,000,000. The description of the property, and the terms of payment, are immaterial. The mortgage was in the usual form, but does not appear to have been accompanied by any note or bond. It specified that the parties of the second part held as trustees and as joint tenants, and not as tenants in common. It does not contain the provisions of the trust. On February 20, 1893, the Detroit Gaslight Company assigned and transferred to said trustees all its rights under the above contract, “particularly the covenants of said Weidenfeld for the payment of the within purchase price; the same being secured by mortgage executed and delivered at the date hereof, but dated February 1, 1893, to the trustees aforesaid.” The defendants are the surviving trustees.
    In 1894 the assessors of Detroit assessed this mortgage, and two others to the same trustees amounting to $7,500, to the defendants, as trustees, at their face value; the total amount of the tax being $15,888.52. The defendants appeared before the assessors, and denied their liability, and appealed to the board of review, which decided against them. Upon their refusal to pay, the city instituted this suit, and recovered the full amount of the tax. The case was tried before the court without a jury, upon an agreed state-of facts, of which, except as above stated, the material ones are these: There were 11,397 nonresident shares of the stock of the gaslight company, at $50 per share, $569,850; 8,603 resident shares, at $50 per share, $430,150.
    The statute under which this tax was assessed is subdivision 6, § 8, Act No. 206, Pub. Acts 1893, which provides that—
    “For the purposes of taxation, personal property shall include all credits of every kind belonging to inhabitants of this State, over and above th§ amounts respectively owed by them, whether such indebtedness is due from individuals or from corporations, public or private, and whether such debtors reside within or without the State.”

      Dutcheon, Stellwagen & Fleming, for appellants.

      John J. Speed, for appellee.

       On the question of the place of taxation of trust property, the authorities are collected in a note to Richmond County Academy v. Augusta, (Ga.) 20 L. R. A. 151.

   Grant, J.

(after stating the facts). It is important first to determine the exact status of the credit which is the subject of this litigation. At the time this mortgage was given, the stockholders of the Detroit Gaslight Company, resident and nonresident, had assigned all their shares, under the agreement above referred to. Upon the giving of this mortgage they were not the owners, therefore, of any of the stock of that corporation, but had parted with their title to it. All their interests were then represented by this mortgage, which, when collected by the trustees, was evidently to be divided among the cestuis que trustent, the former stockholders, in proportion to the amount of stock formerly held by each. There is no presumption that the interests of either the resident or nonresident parties had been assessed to them at their domiciles in 1894. By their voluntary act the legal title was vested in three citizens of Michigan, as trustees, and remained so vested at the time the assessment was made. Under these facts the principal questions are: (1) Was it competent for the legislature to impose a tax on credits in' the hands of resident trustees in trust for nonresidents of the State ? and (2) does the act of 1893 impose a tax on credits so held ?

The learned counsel for the defendants contend that the legislature has no power to impose such tax, and cite and rely upon the following cases: State Tax on Foreign-Held Bonds, 15 Wall. 319; Graham v. St. Joseph Tp., 67 Mich. 655; Kirtland v. Hotchkiss, 100 U. S. 491; City of Davenport v. Mississippi & M. R. Co., 12 Iowa, 539; People v. Eastman, 25 Cal. 603; Commissioners of Arapahoe Co. v. Cutter, 3 Colo. 349.

These authorities, and many others, have established the rule that the situs of a credit is the domicile of the owner, and that a credit due from a citizen of this State to a citizen of another State is not subject to taxation at the domicile of the debtor. In none of these cases, however, was the legal title to the credit vested in trustees resident in the domicile of the debtor. So, too, the fact that the credit is secured by a mortgage upon the land of the debtor, or that it is in the hands of an agent for collection merely, does not authorize an assessment against the nonresident creditor. Goldgart v. People, 106 Ill. 25; Grant v. Jones, 39 Ohio St. 506; Territory v. Delinquent Tax List, (Ariz.) 24 Pac. 182; Commissioners of Arapahoe Co. v. Cutter, supra; Herron v. Keeran, 59 Ind. 472 (26 Am. Rep. 87).

In Goldgart v. People, however, it is said:

“ If the owner is absent, but the credits are in fact here, in the hands of an agent, for renewal or collection, with the view of reloaning the money by the agent as a permanent business, they have a situs here for the purpose of taxation, and there is jurisdiction over the thing.” See Burroughs, Tax’n, 44.

In Grant v. Jones it is said:

“Whenever the person holding such choses in action resides in Ohio, he must list for taxation such credits, whether he holds them as owner, guardian, trustee, or agent. If they are held within the State in any such capacity, they are within ,the jurisdiction of the State for purposes of taxation. If they are not so held, but are owned and held by a nonresident, they are not subject to taxation.”

Similar language is also found in Herron v. Keeran.

We must not be understood to indorse the doctrine of the three cases last cited, in so far as they appear to hold that credits owned by a nonresident, and placed in the hands of an agent for collection and reinvestment, obtain such a situs in this State as will subject them to taxation. We are not dealing with such a case, but with one where the absolute legal title is in persons residents of this State. It is clear that these authorities, which are cited by the defendants, recognize a distinction between cases where the legal title is in the nonresident, and where it is in trustees, guardians, or agents at the domicile of the debtor.

The question is little discussed by the text writers. Perry says, “In the absence of a statute, the law would look upon the trustee as the owner, and assess the property at his .domicile.” 1 Perry, Trusts, § 331.

Lewin says, “Trustees are liable to be rated for the property vested in them.” 1 Lewin, Trusts, p. 236.

Cooley says, “In general, personal estate in the hands of a trustee is to be assessed to him at the place of his domicile.” Cooley, Tax’n (2d Ed.), p. 375.

“Property in trust is, in the absence of a special provision of statute, taxed at the same place as though the trustee were the absolute owner.” 25 Am. & Eng. Enc. Law, p. 153.

Where trustees holding credits secured by mortgages resided in one county of a State, and the cestuis que trustent resided in another county, an assessment upon the cestuis que trustent at their domicile was held void, and the credits held assessable at the domicile of the trustees. Latrobe v. Mayor, etc., 19 Md. 13; Mayor, etc., v. Stirling, 29 Md. 18.

A cestui que trust residing in Massachusetts was held not taxable there for shares in corporations held in trust for her by trustees residing in another State. Dorr v. City of Boston, 6 Gray, 131.

Funds in the hands of trustees were held assessable at their domicile, though they belonged to nonresident beneficiaries. Davis v. Macy, 121 Mass. 193.

Where a judgment was rendered against trustees for maladministration, and they were directed to pay the amount into the hands of a receiver, to be turned over to a new trustee, it was held that the beneficiaries were not liable for taxes. Smith v. Byers, 13 Ga. 191.

In Price v. Hunter, 31 Fed. 355, trustees in Pennsylvania were held liable for taxes upon a mortgage upon property in that State held in trust for a nonresident beneficiary. The same doctrine is held in the following cases: People v. Assessors of Albany, 10 N. Y. 151; Lewis v. Chester Co., 60 Pa. St. 325. See, also, Trustees of Greene Foundation v. City of Boston, 12 Cush. 51; Greene v. Mumford, 1 R. I. 313; Catlin v. Hull, 21 Vt. 152.

■ We are cited to no authorities, nor have I been able to find any, which hold that where the legal title and ownership of personal property, tangible or intangible, is vested in trustees, the beneficiaries or cestuis que trustent are taxable, or that the funds in the hands of the trustees are exempt from taxation at their domicile, in the absence of a statute making the property assessable to the cestuis que trustent.

It is, however, contended that the terms of the statute, “all credits of every kind belonging to inhabitants of this State,” do not include trustees holding credits for the benefit of nonresidents. It follows from the authorities above cited—and we think the holding based upon sound reason—that the term “inhabitants” includes resident trustees, in whom is vested the absolute legal title to choses in action. Our statute, however, appears to control the question. It provides, “ Personal property under the control of a trustee or agent, whether a corporation or a natural person, may be assessed to such trustee or agent in the township where he resides, except as otherwise provided.” Act No. 206, § 14, subd. 6, Pub. Acts 1893.

It appears by the stipulated facts that the trustees have commenced foreclosure proceedings, and that one of the defendants in that suit has answered, denying all indebtedness upon the mortgage, and has interposed a cross-bill charging fraud and deception on the part of the Detroit Gaslight Company in the sale of the property, and praying a cancellation of the mortgage. That suit is pending and undetermined. Counsel, in their brief, say:

“If the pending foreclosure suit is decided in favor of the defendants in that case, can it be possible that the law will compel the defendants in this case to pay, not only the large judgment in this case, but also like taxes assessed before the determination of the foreclosure suit, out of their individual property, when they have been remiss in no way? ”

That question may arise when the defendant trustees shall be called upon to account for the trust funds, provided the mortgage is declared void. It is not now before us. It is not claimed that they have not in their hands moneys sufficient to pay these taxes. In their appeal from the action of the assessors to the board of review, they set up this pending suit, and state that they have in their hands moneys paid to them as interest on this mortgage; and it is also a fair inference from the record that the $450,000 of the purchase price has been paid to them, and for whioh an accounting is asked in that suit. Several of the cases above cited appear to have been brought and decided upon the theory that the trustees, having legal title to the property, were obligated to pay the tax. In Latrobe v. Mayor, etc., supra, it is said:

“ That the taxes assessed upon a trust estate constitute a legal cause of action against the holder of the legal title, we do not doubt; for at law the legal estate, in the hands of a trustee, has the legal incidents and obligations of an absolute title, subject only to the claims in'equity of the cestui que trust.” .

Such suits must, of necessity, be brought against the trustees; and, when judgment is rendered against them, they are entitled to pay the judgment from the trust fund, and credit themselves with the amount so paid. Where a court has adjudged the tax to be valid, it would seem to logically follow that the trustees will be protected in its payment from the trust fund.

The judgment is affirmed.

Montgomery, Hooker, and Móore, JJ., concurred. Long, C. J., did not sit.


text:
    MICHIGAN LAND & IRON CO. v. CLEVELAND SAWMILL & LUMBER CO.
    Injunction—Refusal tó Suspend.
    A court of equity will not further suspend an injunction against the maintenance of a dam whereby the lands of another would be overflowed, on the ground that by such injunction the one who constructed the dam would suffer damages greatly in excess of those caused by such overflow, in that he would thereby be prevented from flowing his logs to his mill, where two suspensions of 60 days each, during the season of the year most favorable for getting out timber, have already been granted, of which suspensions the builder of the dam has negligently failed to take advantage.

      Appeal from Marquette; Stone, J.
    Submitted April 10, 1896.
    Decided April 21, 1896.
    Bill by tbe Michigan Land & Iron Companv Limited, to restrain the Cleveland Sawmill & Lumber Company from repairing and operating a certain dam. From a decree for complainant, defendant appeals.
    Affirmed.

      Ball & Ball, for complainant.

      Clark & Pearl, for defendant.
   Grant, J.

In 1889 one John C. Brown entered into a logging contract with R. K. Hawley and Thomas H. McGraw, by which he agreed to cut, skid, haul, bank, and deliver to them, all the pine from certain lands situated in the county of Marquette, Mich., and on the upper part of Dead river and its tributaries. One of these tributaries is known as “Clark Creek,” which flows into Boyce creek, which flows into Dead river. Neither of the first two streams is navigable. The logs could not be floated down either of them without building dams and creating a flood. In 1890 Brown built a dam across Clark creek, situated partly on the lands of Hawley & McGraw, and partly on the lands of the complainant. By reason of this dam, about 120 acres of the complainant’s land were overflowed, and the timber destroyed. Of the construction of this dam the complainant had no knowledge, and first obtained positive knowledge of it about August, 1892, when it presented a claim to Brown for damages, which was never paid. Brown failed, and surrendered his contract to Hawley & McGraw, who, in turn, sold and assigned the entire business to defendant. The dam was used to get out logs during the seasons of 1891 and 1892. It was not used during the seasons of 1893 and 1894, except in the spring and summer of 1894, when it was,used to create floods to help drive the logs below into the main stream. In the winter of 1894-5 defendant cut and banked upon Clark creek, above the dam, mostly on complainant’s land, about 2,000,000 feet of logs. The defendant obtained no permission from the complainant to so use its land, and complainant was not aware of it until the logs were banked and ready for the spring drive. Meanwhile a portion of the dam had been carried away, and the defendant in May applied to the complainant’s agent at Marquette to purchase some timber to rebuild it. Complainant refused, and forbade the defendant to rebuild the dam or flood its lands. The defendant, however, was proceeding to rebuild the dam, when, on June 17, 1895, complainant filed this bill to restrain the construction of the dam and the flooding of its lands.

The answer filed admits the ownership of the lands, and the construction of the dam; the flowage of the complainant’s lands in consequence; that, since the failure of Brown, it has owned and maintained the dam for the purpose of carrying on its lumbering operations; denies any serious injury to the lands of the complainant; alleges that the dam was absolutely necessary for the purpose of providing a flow of water to flow its logs over the rapids lying a short distance below the dam; that it has about $10,000 worth of pine saw logs hung up in said creek above the rapids, and within the flowage of the dam, which cannot be brought down to the defendant’s mill, situated at the mouth of Dead river, without the use of the dam; that it has standing timber situated above said dam of the value of $10,000, which will become entirely worthless if the defendant is restrained from building and using the dam; that it would be inequitable and unjust to restrain it from repairing, maintaining, and operating said dam, thus causing an injury to it 20 times the amount that it is possible for the complainant to suffer.

Upon the filing of the bill a temporary injunction was granted. Upon the coming in of the answer the court made an order suspending the temporary injunction for the period of 60 days, upon the filing of a bond to the complainant to pay it such sum as should be assessed to the complainant as damages. On September 3, 1895, the court granted a further extension of 60 days to enable the defendant to get out its logs. Upon November 5th further extension was applied for, which was denied. Proofs were then taken in open court upon the issues involved, and upon the hearing a final decree was entered, fixing the amount of damages, and perpetually enjoining the defendant from using the dam and flooding the lands of the complainant. The learned circuit judge, in deciding the case, said:

“The court has exercised a great deal of leniency in this matter, having first given an extension of 60 days, and then another extension of 60 days, during the best of our summer and fall season,—being four months’ time,— in which to get out this timber; and, under the testimony and facts known to the court, the season, it seems to me, was pretty favorable last season, in this Upper Peninsula, —somewhat exceptionally so. * * * I think the court has given the defendant ample opportunity to get these logs out. I find that this timber was put in here without any knowledge or acquiescence on the part of the complainant, and it is simply saying to the complainant it shall have the enjoyment of its own property.”

The appeal is taken to this court for the sole purpose of obtaining a further extension of time, a further use of the dam, and a further flowing of the complainant’s lands, to enable the defendant to get out the remainder of its logs. Twice the defendant appealed to the conscience of the circuit court in equity, which, by mere grace, and not by any absolute right, granted the favor. Both parties own timber land along these creeks. Complainant desires to sell its timber, which is of comparatively little value unless it can be floated down these streams. The defendant has the entire control of the streams below, and is undoubtedly seeking to take advantage of the situation to enhance its own interests. It is contended on behalf of the defendant that the damage to it will be so great, by the loss of its logs, while that of the complainant will be so small, that the court should permit the defendant to make use of the complainant’s lands, although it has no legal right to do so. Other considerations, however, enter into the question, and we are not prepared to say that they should be ignored. We do not feel justified in overruling the conclusion reached by the learned circuit judge, who was familiar with the situation, saw the witnesses, and concluded that the gracious hand of the court had been extended to the relief of the defendant to a reasonable limit, and that it had not improved the opportunity with the diligence which, under the circumstances, was required.

The decree will be affirmed, with costs.

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


text:
    BANKS v. CRAMER.
    1. Agency—Undisclosed Principal.
    In an action to recover damages for tlie failure of the defendant to fulfill his agreement to insure plaintiff’s dwelling house, the defendant claimed that, in whatever he did, he acted as agent for a third person, who held a mortgage on the property. Held, that an instruction that,' if the jury should find that defendant was acting as such agent, and that he disclosed that fact to the plaintiff, the latter could not recover, was sufficiently favorable to the defendant.
    2. Appeal—Assignments oe Error—Failure to Except.
    Assignments of error based upon rulings to which no exceptions were taken will not be considered.
    Error to Washtenaw; Kinne, J.
    Submitted April 10, 1896.
    Decided April 21, 1896.

      Case by Frank Banks against Densmore Cramer for failure to fulfill an agreement to insure plaintiff’s property. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Densmore Cramer, in pro. per.

      Arthur Brown (E. B. Norris, of counsel), for appellee.
   Montgomery, J.

The plaintiff sued to recover damages from the defendant for failure to fulfill an agreement to insure plaintiff’s property. The testimony offered on behalf of the plaintiff tended to show that the defendant promised the plaintiff to cause a policy of insurance to be written on his dwelling house in the sum of $300; that the insurance premium was paid; and that plaintiff supposed that the insurance policy had been issued, and retained by the defendant as security for a mortgage which defendant or his father-in-law retained on plaintiff’s property. Plaintiff’s dwelling house was consumed by fire, and he testified that he learned that defendant had pocketed the money, and failed to effect the insurance. The case turned almost wholly upon questions of fact. It seems not to have been contended below that the testimony wholly failed to show any contract, or that, if the jury believed plaintiff’s testimony, there was not an agreement to effect insurance, but it was claimed that the defendant, in whatever he did, acted as the agent of one Twitchell. It appears that, at the time this alleged contract was made, plaintiff effected a loan through Mr. Cramer, and gave a mortgage running to Twitchell. Plaintiff’s testimony tended to show that he supposed that this mortgage ran to defendant. . However that may be, the defendant was engaged in the insurance business, and it did not appear that Twitchell was. It does not necessarily follow that, because defendant represented Twitchell in making the loan, he did not act independently in engaging to effect insurance. The circuit judge instructed the jury that if the defendant was acting as agent for Twitchell, and disclosed that fact to plaintiff, then plaintiff could not recover. We think this instruction sufficiently favorable to the defendant.

There are numerous assignments of error based upon rulings which were not excepted to, and defendant has discussed the testimony in his brief, and endeavored to show that that of plaintiff was untrue. It is needless to say that we cannot deal with such questions on error.

There are no other questions which require discussion.

We are satisfied that no legal error was committed, and the judgment will be affirmed.

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


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    BALDWIN v. SCHIAPPACASSE.
    1. Principal and Agent—Statute of Frauds.
    A contract for the sale of land, signed by an agent whose authority to make the same rests wholly in parol, is within the statute of frauds.
    2. Same—Ratification.
    A principal cannot ratify the act of his agent, who has assumed without written authority to execute an agreement for the sale of his principal’s land, so as to render the alleged agreement binding upon the other party, after such party has disavowed liability thereunder.
    Appeal from Wayne; Frazer, J.
    Submitted April 7, 1896.
    Decided April 28, 1896.
    Bill by Stephen Baldwin against Louis Schiappacasse to enforce a vendor’s lien. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Griffin & Warner (F. A. Baker, of counsel), for complainant.

      Bowen, Douglas & Whiting (William H. Wells, of counsel), for defendant.
   Grant, J.

The bill of complaint in this case is based upon the following instrument:

“Detroit, Mich., February 25, 1893.
“Received of Louis Schiappacasse $1,000, part of the purchase price of the following described property, to wit: Lots 1, 2, 3, 4, 5, 10, 11, 12, and 13, part of Young-blood’s subdivision of part of the southeast quarter of section 11, of town 1 south, of range 11 east, excepting lots 1 and 328 to 350, inclusive, of plat known as ‘Palmer Park Subdivision,’ said exception fronting 18.85 feet on Woodward avenue, extending along the Six-Mile road to the Kelly road, and fronting on the Kelly road 120 feet, which I have sold him for Stephen Baldwin, Esq., subject to said plat, on the following terms: Price #100,000; #24,000 more cash to be paid on examination of abstract on, say, March 10, 1893; balance to be paid as follows: $5,000 in one year, and $70,000 in five years, from date of deed, to be secured by purchase-money mortgage, and to bear interest at six per cent, per annum, payable half-yearly. J. W. Simcock.
“I agree to buy the foregoing property, on the terms named. L. Schiappacasse.”

The bill alleges that, by this document, a sale was made, and that complainant has a vendor’s lien for the purchase price; prays for a sale of the property, and a personal decree against the defendant for the residue. The answer denies that any valid contract' was made with Mr. Simcock as the agent of complainant, or that complainant ratified the act of Simcock in making such alleged contract.

The sole authority which Mr. Simcock had, if he had any, rested in parol. The complainant, some days prior to February 25th, met Mr. Cameron Currie, a real-estate broker, in the street, and told Mr. Currie that his land was for sale, and wanted to know if he could find a purchaser. Mr. Simcock was interested with Mr. Currie at that time in other property matters, and he spoke to Mr. Simcock about selling the complainant’s land. The price fixed was $100,000. The contract was not signed by the complainant, nor by an agent authorized by writing. The authority, whatever it was, rested entirely in parol. It needs no citation of authorities to show that this contract was void under the statute of frauds, and did not bind either complainant or defendant, until the complainant had ratified the act in some manner which would take it out of the statute. In fact, Simcock had not even verbal authority to fix the terms provided in this contract. The check was handed to complainant on the evening of February 25th, but this was not sufficient compliance with the statute. He, in fact, did not then accept the contract or ratify the act of his alleged agent. On the contrary, he insisted upon other terms; and, on the 27th day of February, Mr. Simcock went to the defendant with a written statement of terms, which were insisted upon by Mr. Baldwin, different from those in the contract. The defendant and those interested with him refused to accept these terms. Shortly after, an interview was had between complainant and defendant and other parties interested. At that interview, after considerable talk about the terms, complainant declared that, if the deal was not fixed up by 5 o’clock of that day, he should call the deal off. To this the defendant replied, “If that is so, all right,” and the parties separated. After this, complainant tendered a deed, and signed a paper ratifying the act of Mr. Simcock, and handed it to the latter. This latter document, however, was never shown to the defendant, and, of course, was not binding upon him. Dickinson v. Wriqht, 56 Mich. 42.

Until complainant had placed himself in such a position that defendant could enforce the contract against him, he was not in position to enforce it against the defendant. Until that was done, there was in fact no contract binding upon either party, and the defendant was at liberty to withdraw. Pom. Cont. § 166; Duvall v. Myers, 2 Md. Ch. 405; Bodine v. Glading, 21 Pa. St. 50 (59 Am. Dec. 749). After such withdrawal, the complainant could not bind the defendant by any act of ratification. The paper executed by Simcock and the defendant was not a continuing offer to purchase, which might at any time be accepted by the complainant. It purported to express the terms of an agreement of sale, void because there was no written authority to make it, and incapable of being ratified after the refusal of the defendant to be bound by it.

It is-evident from the testimony of Simcock, the defendant, and the other parties present when it was executed, that it was not intended to express all the terms •of the sale, but was only a preliminary contract. It was contemplated and understood that provisions were to be made for the release of lots as they should be sold by the defendant and those interested with him.. These and others provisions were to be inserted in -.the final papers, which were to be between complainant •and all these parties, and not with defendant alone. If the instrument had been signed by the complainant, or if Simcock had been authorized in writing to sign it, other important questions would arise, which, in the view we take of the case, it is unnecessary to discuss.

The decree is affirmed, with costs.

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


author: Hooker, J.

text:
    MILLER v. BROOKS.
    Contract—Mistake—Failure op Consideration.
    A representation by one of the parties to an exchange of property, to the effect that he had been advised by attorneys that a certain writing, transferred by him as a part of the consideration in the exchange, constituted a lien upon the property to which it related, and was practically a chattel mortgage, will not authorize a judgment against such party, in an action based upon an alleged mistake as to the legal effect of such instrument, for the value which was placed by the parties upon the writing, where it does not appear that he was not so advised and did not so believe; especially where the party receiving such writing was permitted by the holder thereof, before the exchange was effected, to take the advice of his own attorney as to such instrument, and where such party states upon the trial that he believed and acted upon such advice.
    Error to Berrien; Coolidge, J.
    Submitted April 7, 1896.
    Decided April 28, 1896.

      Assumpsit by Ionia Miller against Perry Brooks to recover a balance claimed to be due upon a contract for an exchange of property. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Potter & Potter and Charles N. Sears, for appellant.

      Hammond & Hammond, for appellee.
   Hooker, J.

Brooks was the owner of a livery barn, and a lease of the ground upon which it stood. He made % written contract with Vincent and Lawrence to sell them the barn for $650; the rent of the ground being paid to May, 1894, Vincent and Lawrence to pay rent falling due thereafter to McCord, the owner of the land. One hundred and eighty-four dollars and fifty cents was paid on delivery of the contract. The remainder of the consideration was to be paid in monthly installments. Some weeks after the contract was made, Brooks made an exchange of property with the plaintiff, receiving a small farm, for which he gave a house and lot, and assigned the contract made with Vincent and Lawrence. The contract was valued at $465, in the trade, that sum being unpaid upon it. The plaintiff also took from Brooks an assignment in writing of the lease. The exchange of property was negotiated by the plaintiff’s husband, who was her agent. The defendant told him that an attorney at Niles advised him that the contract with Vincent and Lawrence constituted a lien upon the barn, and he also told him that, if Vincent and Lawrence did not pay up, he could take possession of the barn. The plaintiff’s husband took the writing to an attorney, the defendant permitting him to take it, for the purpose of getting counsel. He stated that his attorney advised him that the contract was perfectly good for $465, and that he believed and acted upon this advice. It is asserted, however, that Vincent and Lawrence had sold the barn to one Cribbs, who had promised to pay Brooks. The plaintiff’s husband put a lock on the barn, but other parties, claiming to own the barn, took it off. He was subsequently advised by other counsel that he could not hold the barn, and it was finally torn down and removed. Thereupon this action was brought to recover the sum of $465, and the plaintiff recovered.

The case seems to have been based on the representation alleged to have been made by the defendant, viz., that the writing constituted a lien upon the barn. Counsel for the plaintiff disavow a claim of. fraud, and the declaration does not allege fraud; but the plaintiff asserts that a “ mistake was made, through which she was injured,” viz., that it was stated by the defendant to the plaintiff’s husband that he had been advised, by Col. Bacon and other lawyers, that the writing constituted a lien on the barn, and was “practically a chattel mortgage.” It does not appear that he was not so advised, or that he did not believe it. The' plaintiff seems to have misunderstood the legal effect of the writing, which her agent saw, and upon which advice of counsel was taken and acted upon, on her behalf. No fraud was alleged, and we see no ground upon which her judgment can be sustained. The court should have directed a verdict for the defendant, as requested.

The judgment is reversed, and a new trial ordered.

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


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    MOORE v. CITY OF KALAMAZOO.
    1. Municipal Corporations — Personal Injuries —Defective Sidewalks—Evidence—Notice.
    In an action against a city for injuries received by stepping into a hole in a defective sidewalk, evidence (a) that there were other defects in the immediate vicinity, and (t>) that others had stepped into the same hole in the walk, is admissible as bearing upon the question of notice.
    2. Same—Instructions to Jury.
    It is not error for the court to refuse to instruct the jury, in a suit against a city to recover for injuries received by reason of a defective sidewalk, to the effect that the defendant, with 300 miles of sidewalk, would not be held to as great diligence in caring for the same as a small village would be.
    3. Same—Damages.
    In an action for injuries due to a defective sidewalk, where the declaration alleges that the injury prevented plaintiff from attending to her necessary household affairs and business, whereby she lost all the profits therefrom; that the injury is permanent; that prior thereto plaintiff was a strong, healthy woman, but is now lame, and crippled for life,—it is proper to allow plaintiff to show what her earnings were previous to the injury, and to instruct the jury that the deprivation of such earnings during the time that she has already been injured, and the time that she will remain incapable of earning anything in the future, should be taken into account on the question of damages.

      4. Same—Aggravation of Injuries.
    A request to charge, in an action against a city to recover for a personal injury due to a defective sidewalk, that it was the plaintiff’s duty, after receiving the injury, to use proper care and treatment looking towards a recovery, and that, if she aggravated the injury by her own acts, defendant would not be liable for the part of the injury thus caused, is properly modified by adding that, if she did what a reasonably prudent person would have done under like circumstances, she was not negligent.
    Error to Kalamazoo; Buck, J.
    Submitted April 8, 1896.
    Decided April 28, 1896.
    Case by Abbie Moore against the city of Kalamazoo for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      George P. Hopkins, for appellant.

      D. O. French (N. H. Stewart, of counsel), for appellee.
   Hooker, J.

The defendant appeals from a judgment for $4,500 in favor of the plaintiff, who complained of an injury to her knee, crippling her permanently, suffered by reason of the defendant’s sidewalk. The brief filed by counsel for the defendant does not discuss the assignments of error seriatim, and we shall therefore deal with the questions discussed, rather than specific assignments.

Evidence tending to show that there were other defects in the immediate vicinity has so often been held admissible as bearing upon the question of notice that ,we think it unnecessary to cite authorities, especially as counsel framed a request to charge in which he asked the court to limit the use of that testimony to the subject of notice, and alleges error upon the failure of the court to give it. We think the request was given, in effect, and the omission of a part, not being prejudicial, does not call for a reversal of the case.

Evidence that others stepped into the same hole in the walk is admissible under the case of Lombar v. Village of East Tawas, 86 Mich. 14. It is unimportant whether they received injury or not, as was said in Corcoran v. City of Detroit, 95 Mich. 86. Two witnesses testified to stepping into holes in that vicinity, which was substantially the same as saying that they saw the holes. It was said that one fell, but this testimony was stricken out. The evidence allowed to remain was admissible upon the question of notice.

The court committed no error in declining to instruct the jury, as requested, to the effect that the defendant, with 300 miles of sidewalk, would not be held to as great diligence in caring for its walks as a small village would be. The law requires that reasonable care shall be given to walks, and makes no distinction between localities, except as circumstances affect the question of what is reasonable. We should not care to lay down the rule that sparsely settled or small communities must have better- or more carefully guarded walks and ways than large cities. The cases cited do not, in our opinion, state any such proposition, or support it.

The remaining questions relate to the subject of damages. It is said that the court erred in admitting proof relative to plaintiff’s earnings, and also in stating to the jury that they ‘ ‘ should take into account her past earnings, and the deprivation of these earnings during the time that she has already been injured, and the time that you find, from the evidence, that she will remain incapable of earning anything in the future,” for the reason that the “declaration contains no allegation which would permit her to recover upon any such theory.” The declaration states-that she was “prevented from attending to her necessary-household and lawful affairs, duties, and business during all of this time performed, and thereby was deprived of and wholly lost all the advantages and profits to be derived therefrom and thereby; ” and, ‘ ‘ the injury so received being permanent and incurable, she is an invalid for life; and plaintiff avers that prior thereto she had been and was a strong, healthy, and able-bodied woman, but that she is now injured permanently, and must remain in such lame and crippled condition the balance of her life; wherefore the said plaintiff has been injured and sustained damages to the amount of $5,000. We think these sufficient allegations to warrant the admission of such testimony and the charge given.

It is contended that plaintiff’s conduct in neglecting to care for her injury, and in failing for several weeks to call a surgeon, and in keeping about the house, in an effort to perform her ordinary work, aggravated her injury, and that much of the injury would have been avoided by proper care and treatment. Counsel for the defendant offered the following request, viz.: Defendant’s sixteenth request:

“It was the duty of the plaintiff in this case, after receiving her injury, if she received any, to use proper care and' precaution, and the proper treatment looking toward a recovery; and if she aggravated the alleged injury in any manner by her own acts, whether by being upon her feet and walking around or otherwise, the defendant would not be in any way responsible for that part or portion of the injury or suffering or loss of time caused by reason of the conduct of the plaintiff herself.”

The court gave this, and added:

“ You will understand this instruction, gentlemen, the same as the other,—that if she did. .what a reasonably prudent person would have done under the same circumstances, then it would not be negligence on her part. If she did what a reasonably prudent person would not have done, then it was negligence.”

He also gave the following requests:

“You are instructed that the plaintiff was bound to use such care and caution, after her injury had taken place, as an ordinarily prudent, cautious person would have used under like circumstances; and that, if the injury was such as not to entirely disable her at the time received, but one that would develop later on, the plaintiff cannot be charged with knowledge of what might subsequently develop, but would only be required to act as an ordinarily prudent person would, under the circumstances.
“If, on the contrary, you find that the plaintiff, in keeping about her work after the injury, did what a reasonably prudent and careful person would not have done, and that thereby the injury was greatly aggravated, the defendant would not be liable for the injury, pain, and suffering brought about by that want of care and prudence on the part of the plaintiff herself. In that case the city would still be liable for the injury, so far as it was the natural result of the sprain by stepping into the hole in the walk, if you find that she was so injured.”

To these he added:

“But the city would not be liable for any injury not the result of the sprain, but of her own negligence, if you should find that she was negligent.”

Counsel’s request (numbered 16, quoted above) would relieve the defendant from liability for all aggravations which could be ascribed to the conduct of the plaintiff, whether imprudeht or not when viewed from the standpoint of ordinary prudence. This is going too far, and we think that the instructions of the circuit judge were in accord with the correct rule. The subject was discussed in the recent case of Reed v. City of Detroit, 108 Mich. 224.

We are asked to direct a new trial upon the ground that the jury awarded excessive damages, but we cannot say that this is conclusively shown.

The judgment is therefore affirmed.

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


text:
    MICHIGAN TRUST CO. v. ADAMS.
    Fraudulent Conveyances—Unrecorded Deed.
    An allegation that a warranty deed was executed and delivered to the grantor’s wife with an intent to defraud his creditors is not sustained by evidence merely that the deed was withheld from record for a number of years, and that the grantor continued to collect the rents for the property conveyed, where it appears that the grantor had at the time other property amply sufficient to pay his debts, and where it further appears that the deed to the land in controversy was withheld from record through inadvertence, and that the grantor accounted to the grantee for all rents by him collected. Fetters v. Duvernois, 73 Mich. 481, distinguished.
    Appeal from Kent; Adsit, J.
    Submitted April 8, 1896.'
    Decided April 28, 1896.
    Bill by the Michigan Tr ust Company, administrator of the estate of Elisha M. Adams, deceased, against Edward M. Adams, to set aside a deed alleged to have been made in fraud of creditors. From a decree for complainant, defendant appeals.
    Reversed.

      More & Wilson, for complainant.
    Taggart, Wolcott & Qanson, for defendant.
   Hooker, J.

In 1871 Elisha M. Adams united with Francis D. Boardman in the execution of a bond to secure payment to the Michigan Asylum for the Insane, at Kalamazoo, for care and maintenance to be afforded to one George P. Boardman, an insane patient, and son of Francis D. Boardman. Both Francis D. Boardman and Adams were possessed of considerable property. In 1875 Adams corUt'-eyed the premises in controversy to his wife, who' neglected to have her deed recorded until after his death, which occurred in 1884. Subsequently the land in controversy was conveyed to the defendant, her son, through several voluntary conveyances. Adams is claimed to have been insolvent at the time of his death, in 1884. Boardman died in 1883. In 1893 the treasurer of the asylum caused the appointment of the complainant as administrator of the estate of Adams, and filed a claim in probate court for services rendered in the care and maintenance of George P. Board-man before Adams’ death, upon the allowance of which the bill in this case was filed, attacking defendant’s title, and seeking to have the property applied upon the claim, and the circuit court granted the relief prayed.

In our opinion, the testimony shows an absence of fraudulent design, when the deed was made, notwithstanding the failure to record the deed. It appears that Adams had ample property with which to pay his debts, and a gift, under such circumstances, will not be set aside, in the absence of evidence of a fraudulent intent. We think the case should not be ruled by that of Fetters v. Duvernois, 73 Mich. 481, upon which counsel for complainant rely. It is radically different, in essential features. In that case the conveyance was a quitclaim deed, which the parties intended to operate as a will, which was probably never delivered, and, upon its face, was but the quitclaim of a future interest. It was voluntary, and not to be used in case of the grantor’s recovery. In this case the instrument was a warranty deed of a present interest. Its execution was accompanied. by delivery, and it was withheld from record through inadvertence. It does not appear that the possession was retained by the grantor to the exclusion of his wife, and, although he collected rents, he is shown to have accounted to her for them. The following cases cited by counsel seem to us to cover the points involved: Cutter v. Griswold, Walk. Ch. 437 (see cases cited in note to annotated edition); Page v. Kendrick, 10 Mich. 300; Gale v. Gould, 40 Mich. 515; Fraser v. Passage, 63 Mich. 556; Wooden v. Wooden, 72 Mich. 353; Hinders Lessee v. Longworth, 11 Wheat. 199, 210; Lloyd v. Fulton, 91 U. S. 479; Ware v. Purdy, (Iowa) 60 N. W. 526.

The decree is reversed, and bill dismissed, with costs of both courts.

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


text:
    BEEKMAN v. SYLVESTER.
    1. Joint Debtors—Release—Construction op Statute.
    The filing in court of a release given under 2 How. Stat. § 7784, to one of several joint judgment debtors, who, under the preceding section, has' settled or compromised his individual liability on the judgment, is not a prerequisite to the validity of the release.
    S. Same—Failure to Discontinue.
    A judgment cannot be enforced against one of three joint judgment debtors, where the other two show a discharge from the judgment, and there has been no discontinuance as to them, since j udgment in such case must be against all or none.
    Error to Alpena; Kelley, J.
    Submitted April 9, 1896.
    Decided April 28, 1896.

      Assumpsit by John G. Beekman against Lyman J. Sylvester and others to renew a judgment. From a judgment for plaintiff, defendants bring error.
    Reversed.

      J. D. Turnbull, for appellants.

      Joseph Cavanagh, for appellee.
   Hooker, J.

On February 13, 1885, a circuit court judgment was recovered by the plaintiff and one Bishop against the defendants, Lyman J. and Rose Sylvester and William J. Carney. Action was commenced against all of the defendants by declaration filed February 11, 1895. The return shows the service to have been made upon each defendant on February 13, 1895. The defendants moved for a correction of the sheriff’s return, claiming that the declaration was not served until February 14th, and pleaded the general issue, with notice of the statute of limitations. The parties stipulated to leave the question of the date of service to the jury, and, if they should find that the declaration was served on February 14th, the return was to be amended. They do not appear to have so found, but rendered a verdict for the plaintiff. As there was evidence on both sides of the question, we cannot disturb the verdict upon this ground.

The defendants offered in evidence a release reading as follows:

“State op Michigan, )
County of Alpena. )
The Circuit Court for the County of Alpena.
“ Jesse P. Bishop and John G. Beekman, Assignees, etc., vs. Rose Sylvester, Lyman J. Sylvester, and William J. Carney.
“For valuable consideration to me in hand paid, I hereby release the above-named Lyman J. Sylvester and Rose Sylvester, two of the defendants herein, from any and all liability in and to and under the judgment heretofore rendered against said defendants in this case; and I hereby agree to and with said Lyman J. Sylvester and Rose Sylvester that at no time in the future shall they, said Lyman J. Sylvester and said Rose Sylvester, become liable to pay said judgment, but to hold said other defendant for the amount due on said judgment.
“John G. Beekman,
“ Assignee Alpena Lumber Co.”

The plaintiff contends that this release is not admissible as a defense, because not duly filed with the clerk of the circuit court of the county of Alpena, under 2 How. Stat. § 7784. On the other hand, counsel for the defendants contends that the release was valid between the plaintiff and the Sylvesters, and that, while the statute does not apply, it released Carney, under the common-law rule, inasmuch (it is said) as, under our rule, a release is good, though not under seal. See opinion of Morse, J., in Seligman v. Pinet, 78 Mich. 57. We disagree with counsel for the plaintiff in his construction of section 7784, above quoted. The preceding section provides for the discharge of one partner after dissolution, by settlement, without discharging the remaining partner from his ratable proportion of the debt, and the provision is made applicable to joint debtors by section 7787.. Section 7784 permits the clerk to discharge a judgment, as to the released debtor, upon his filing the proper evidence; but we think such filing and discharge are not a prerequisite to release, which may be shown upon the trial of an action brought to enforce the judgment.

Counsel for the defendants asserts a willingness to agree with counsel for the plaintiff that this is not a good statutory release, though he says that he does not base it upon the reasons given. As none are given by him, and we think of none why this statute does not cover the case, we feel constrained to hold that the Sylvesters were released from liability, and that Carney was released in part, and that, at most, he could have been held liable for one-third of the face of the judgment and interest. But as the plaintiff’s action was planted against three defendants, and he did not discontinue, under Circuit Court Rule No. 71, as to the Sylvesters, he is not in a position to sustain his judgment, even against Carney, as he was entitled to no judgment, if not against all. Mace v. Page, 33 Mich. 38; Winslow v. Herrick, 9 Mich. 380; Ballou v. Hill, 23 Mich. 60; Larkin v. Butterfield, 29 Mich. 254; Anderson v. White, 39 Mich. 130; Detroit v. Houghton, 42 Mich. 459; Munn v. Haynes, 46 Mich. 140; Post v. Shafer, 63 Mich. 85; Seligman v. Gray, 66 Mich. 341.

The judgment is reversed, and a new trial ordered.

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


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    CODDE v. MAHIAT.
    Equity—New Trial—Res Judicata.
    Equity will not relieve a party against a judgment at law, and grant a new trial, upon the ground that the verdict was obtained by perjury on the part of the prevailing party, after a motion for a new trial has been denied by the court which rendered the judgment, and such denial has been affirmed on appeal. Gray v. Barton, 62 Mich. 186, followed.
    Appeal from Wayne; Lillibridge, J.
    Submitted April 21, 1896.
    Decided April 28, 1896.
    Bill by August Codde against Mary Mahiat to set aside a judgment, and for a new trial. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.
    The defendant, Mahiat, obtained judgment against the complainant for breach of promise of marriage, which was affirmed in this court. Mahiat v. Codde, 106 Mich. 387. Upon appeal to this court, complainant gave no bond to stay execution. Execution was issued, some real estate of the complainant levied upon, and sold. After the affirmance by this court, complainant filed this bill in equity to set aside the sale and judgment, and to obtain a new trial. The basis upon which he seeks relief is that the verdict was obtained by perjury on the part of the defendant. He now claims to have discovered new evidence, to the effect that the defendant stated to other parties that she was not engaged to complainant, had no love or affection for him, and would not marry him. Attached to the bill are two affidavits, in which the affiants make oath that they heard her make such statements. A demurrer was interposed, sustained, and the bill dismissed.

      Oscar M. Springer (H. H. Hatch, of counsel), for complainant.

      William Stacey, for defendant.
   Grant, J.

(after stating the facts). Gray v. Barton, 62 Mich. 186, rules this case. It is so nearly identical in its facts and circumstances with this that we deem any further statement or discussion unnecessary.

The decree is affirmed, with costs.

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


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    HYNES v. HICKEY.
    1. Appeal—General Objection.
    An objection to a question as “incompetent” is too general for consideration on appeal, unless the ground of the objection is apparent.
    3. Evidence—Burden of Proof.
    In an action for damages for failure to feed and properly care for plaintiff’s horses, evidence tending to show that they were returned in bad condition by defendant, who had contracted for their keeping, and that such condition was due ■ to want of proper care and food, casts on defendant the burden of proving other cause, if there was any, for their condition.
    Error to Saginaw; Wilber, J.
    Submitted April 21, 1896.
    Decided April 28, 1896.

      Assumpsit by Thomas Hynes against James Hickey for the breach of a special contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. A. Burritt, for appellant.

      James H. Davitt, for appellee.
   Grant, J.

The defendant agreed with the plaintiff to feed and properly care for a mare and colt for a certain length of time. Defendant received and kept them. Plaintiff paid the consideration agreed upon, and after-wards brought this suit, to recover damages for the alleged failure to feed and care for them as the contract provided. Plaintiff received verdict and judgment for $25.

Two errors, are assigned:

1. Plaintiff was asked the breed of the mare. To this defendant’s counsel said, “ Objected to as incompetent.” The objection was not sufficiently specific, and cannot be considered, since the ground of the objection was not apparent. Stevens v. Hope, 52 Mich. 65; Rivard v. Rivard, ante, 97, and authorities there cited.

2. Plaintiff introduced evidence tending legitimately to show that the animals were returned in bad condition, and that this was due to want of proper care and food. It was not error to instruct the jury that the burden of proof was then cast upon the defendant to show other cause, if there was any, for their bad condition. Collins v. Bennett, 46 N. Y. 490.

Judgment affirmed.

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


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    LEWIS V. BELL.
    1. Evidence—Expert Witness—Competency to Testify.
    The fact that one has been employed in a stable for two years and a half, where he has had charge of 40 horses, and that he has, as he testifies, “watched the symptoms” of horses, does not, in the absence of any showing that he has had skill or experience in the diseases of animals, render him competent to give an opinion as an expert as to the cause of death of a horse.

      2. Negligence—Instructions—Matter of Common Knowledge.
    In an action to recover for the death of horses, alleged to have been occasioned by improper driving, it is not error for the court to state to the jury a matter of common knowledge as to the condition of horses, where he instructs them that, if the condition of the horses in question was such that a man of ordinary prudence would have known that it was unsafe to proceed, it was defendant’s duty to place them somewhere.

      Error to Wayne; Lillibridge, J.
    Submitted April 23, 1896.
    Decided April 28, 1896.
    Case by Oscar H. Lewis against John N. Bell for the death of a team of horses, alleged to have been caused by defendant’s immoderate driving. From á judgment for defendant, plaintiff brings error.
    Affirmed.

      Turner & Crawford (James M. Goodell, of counsel), for appellant.

      Fraser & Gates, for appellee.
   Grant, J.

Defendant hired from the plaintiff, a livery stable keeper in Detroit, a team of horses, to drive around the city. He used them three hours, and, when returned, they were in a very weak condition. One died the same day, and the other the next. Plaintiff instituted this suit, claiming that the defendant had failed to properly drive and to take due and proper care of the horses, and that their death resulted in consequence. The evidence on the part of the defense tended to show that the horses were properly driven, and that they died from an overdose of medicine administered a day or two before, namely, a ball containing 3 drams of aloes, 1-i drams of calomel, and some gentian. The defendant had verdict and judgment.

Two errors are assigned:

1. A witness for the plaintiff was asked his opinion as to what caused their death. Objection was made to this that the witness had not shown sufficient experience or knowledge to justify his opinion. The ruling was correct. The witness was not shown to have had any skill or experience in the diseases of animals. He had been employed in a stable for 2-J- years, where he had the superintendence of 40 horses, and said he had “watched the symptoms of horses.” This expression, whatever it may mean, did not show sufficient knowledge to render his opinion of any value.

2. Complaint is made because the court, in its instruction, used tbe following language: “Now, we all know tbat we have driven horses that have given evidence of scouring, and have driven them to the journey’s end, and come back safely.” The judge stated a matter of common knowledge, and immediately followed it by instructing the jury that if they should find that the ‘ ‘ scouring was such that an ordinary man, with ordinary sense and judgment, would know that it was unsafe to proceed, then it was the duty of the defendant to have turned around, and placed the horses somewhere.” The instruction was correct.

Judgment affirmed.

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


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      In re SANBORN’S ESTATE.

    1. Infants—Guardian ad Litem.
    Failure to appoint a guardian ad litem for infant legatees, on application made in their behalf to the circuit court for leave to appeal from an order of the probate court allowing the executor’s account, is a mere irregularity, which may be cured by the appointment of such guardian in the circuit court after an appeal from its decision on the first-mentioned appeal.
    2. Appeal From Probate Court—Accounting—Fraud.
    Whether an agreement whereby legatees consented to the allowance of an executor’s account as presented to the probate court therefor was obtained by fraud cannot be properly litigated on an appeal to the circuit court from an order of the probate court allowing such account, but the question should be determined on an application for distribution of the estate.

      3. Wills—Executor as Trustee—Discharge.
    Before an executor is entitled to a discharge from official re sponsibility as such, on the ground that the fund coming into his hands as executor has, pursuant to the terms of the will, become converted into a trust fund, for which he is only liable as trustee to account in a court of equity, he must show some act done to change the character of his holding, and that the fund is properly placed.
    Error to Wayne; Hosmer, J.
    Submitted January 16, 1896.
    Decided May 12, 1896.
    Mehitable D. Sanborn and another appealed from an order of the probate court of St. Clair county allowing the final account of John P. Sanborn, as executor of the estate of James W. Sanborn, deceased. Prom a judgment vacating the order and dismissing the appeal, all parties bring error.
    Reversed.
    The following are the provisions of the will material to this controversy:

      “Fifth. My wife and children shall have their reasonable support and maintenance, and my children their education, until the youngest of my children shall arrive at the age of 21 years, out of my estate.
    “ Sixth. When the youngest of my children shall arrive at the age of 21 years, then all the rest, residue, and remainder of my estate shall be divided into four shares, in case my wife and three children are then living, and, if all are not then living, then into so many shares as there may be survivors of them, and each of them shall, during the terms of their natural lives, have and receive the interest on one of said shares; and in case of the death of any of my children, they leaving children, then the children last mentioned shall have and receive the share upon which his or their father or mother was drawing the interest, to have and to hold the same forever. And, upon the death of my wife, the share herein set apart for her use shall be divided into so many parts as there are children of mine then living, and the interest paid to such children as aforesaid, and the principal paid to their heirs as aforesaid.

      “ Seventh. I hereby nominate and appoint John P. Sanborn, of Port Huron, and Newell Avery, of Detroit, to be the executors and trustees of this, my last will and testament, hereby giving to them, and to the survivors of them, or, in case of the death of both of them prior to the full completion of this my last will, then to such person as may be duly appointed by the probate court of St. Clair county, full and complete authority to carry on my business as to them may seem best; to sell, dispose of, and convey any and all real estate owned by me; to carry oh or settle and close up any and all partnerships in which I am engaged; to carry out and complete all contracts entered into by me. And I hereby direct and enjoin it upon them to pay the legacies aforesaid at such time after my decease as they reasonably can, except such as for the payment of which I have fixed a certain time; and I further enjoin it upon them to make such liberal allowances for the support of my wife and family, and the education of my children, as to them may seem best. And I hereby revoke all former wills by me made.”

      H. W. Stevens (Ethridge E. Bacon, of counsel), for Mehitable D. and Frederick D. Sanborn.
    P. H. Phillips, for Elizabeth A. and Mabel S. Botsford.

      Henry M. Duffield (A. B. Avery and N. E. Thomas, of counsel), for John P. Sanborn.

       Rehearing (application of John P. Sanborn) denied July 8,1896.

   Montgomery, J.

On the 7th day of April, 1891, the probate court for St. Clair county made an order allowing the final account of John P. Sanborn, surviving executor. By an order of the circuit court which was under review in Sanborn v. Mitchell, Circuit Judge, 94 Mich. 519, leave was given to the legatees named in the will to appeal from this order. An appeal was taken by Mehitable D. Sanborn and Frederick D. Sanborn on their own behalf, and on behalf of William H. Sanborn, an incompetent person, and Elizabeth A. Botsford and Mabel Sanford Botsford, infants. The case was transferred to the circuit court of Wayne county, and on the trial of the issue the circuit judge held that under the terms of the will of James W. Sanborn, as to the transactions involved in the final account, John P. Sanborn was acting as a trustee, and not as executor, and was not bound to account to the probate court, and refused to enter upon a hearing of the account, and vacated and set aside the proceedings in the probate court allowing the account, for the reason that the accounting should be had in equity. Each party has sued out a writ of error.

John P. Sanborn contends that the infant Botsford children were not parties to the appeal, and that the ap-. pellants Mehitable D. Sanborn and Frederick D. Sanborn are bound by agreement that the account should be allowed, as it was, by the probate court, and that, therefore, the order should not be set aside on their appeal, but that the order of the circuit court should have been for a dismissal of the appeal. The legatees contend that the agreement by which they assented to the allowance of the account by the probate court was obtained by fraud, and that the allowance of the appeal from the probate court, made after a showing on this subject, together with the decision of this court in Sanborn v. Mitchell, refusing to disturb the order, concludes the parties, and that the minor children are before the court, though informally; and, on their own appeal, the legatees assert that under the will the powers conferred on John P. Sanborn were executorial, and that he was not a trustee, except as executor, and, furthermore, that if, under the terms of the will, it be held that certain of the duties which he may be or has been called upon to exercise are those of a trustee, yet until there has been an accounting in the probate court, in which he has charged himself as trustee, and has set apart the funds received by himself as executor to himself as trustee, the probate court has jurisdiction to call him to account.

Application for leave to appeal was made as well on behalf of the infants as on behalf of M. D. Sanborn and Frederick D. Sanborn, and the application is so treated in Sanborn v. Mitchell. The failure to have a guardian ad litem appointed was an irregularity. The executor has not moved to dismiss the appeal as to them. A guardian ad litem has been appointed for the infants in this court, and we do not think their appeal should now be dismissed. The informality can still be cured by the appointment of a guardian ad litem in the circuit.

To remove any misapprehension which might arise from the language in a portion of the opinion in Sanborn v. Mitchell, it is proper to say that we do not think the question of whether there was fraud in inducing Mehitable D. Sanborn and Frederick D. Sanborn to consent to the allowance of the executor’s account can be properly tried on the accounting in the circuit. This would lead to confusion. The questions on this accounting relate to the administration of the estate, the charges of the executor, etc. Whether these legatees are estopped can better be determined on an application for distribution of the estate.

No case has been presented in this court in which the question as to the duty of an executor named in a will containing such powers as those in the present will, to account to the probate court, has been directly passed upon. In Cranson v. Wilsey, 71 Mich. 356, the executor of a will containing similar provisions was sued at law on his bond, the bondsman being joined with him. In that case the will required the fund to be invested in real-estate securities, at 10 per cent. In the opinion of the court, by Mr. Justice Campbell, it was said:

“If the property had been invested in real-estate securities, as required, the question might have arisen whether this was not equivalent to such a compliance with the order of distribution [which had been previously made by the probate court] as would have changed the nature of their holding. Upon this question we express no opinion. It is at least a doubtful proposition. But we think it is a dangerous and incorrect doctrine that executors can discharge themselves of their official responsibility without doing some act to change the character of their holding, and place the fund safely where it ought to be.”

/ It is unquestionably true that the same person may be named as executor in a will, and by the same instrument constituted a trustee. Whether these executors are constituted trustees, in such a sense that they might, upon a final accounting, discharge themselves from the obligation of their bond by showing a proper investment of the remaining assets in their hands, we need not determine. No such accounting has been had in this case, and the executor insists that it is not his duty to make one, although annual accounts were for years rendered to the probate court, in which no attempt was made to distinguish the trust funds, or show where or how invested, as distinguished from the general funds of the estate. Assuming that the will creates such a trust as is contended, we think that, before the executor can discharge himself of his official responsibility, he must do some act to change the character of his holding, and show that the fund is placed safely where it ought to be. This question has been considered by the courts of many of the States, and this duty is recognized in the better reasoned of the cases in which the question has been raised. In re Hood’s Estate, 98 N. Y. 363; In re Higgins’ Estate, 15 Mont. 474; Hall v. Cushing, 9 Pick. 395.

In Hood v. Hood, 85 N. Y. 561, the will bequeathed all the residue of the estate, real and personal, in trust to sell and dispose of said real estate, and collect and realize the personal estate, and, after paying certain incumbrances, to divide the balance into as many shares as there were children, and pay the income of each share to the wife of the deceased, if living, and, if not, to the legal guardian of the child to whom the share belonged, until the child should attain the age of 21 years, and, when the child should reach that age, to pay over the share set apart for him, with accumulations. By the twelfth clause of the will the wife and son of the testator were appointed "executors and trustees,” with, power to sell or lease his real estate, in their discretion. In an action on the bond of one of the executors, for failing to invest the funds, and for converting portions of the same to his own use, it was contended that the funds misappropriated were in his hands as trustee, and not as executor. The court held that the proceeds of land sold were .legal assets in the hands of the executor, for which he was accountable as such; citing and following Stagg v. Jackson, 1 N. Y. 206. The same case was again before-the court of appeals in Re Hood’s Estate, 98 N. Y. 363, where it was held that, whether or not, under the will, it was possible for the executor to exchange the character of executor for that of trustee, he had not done so; he not having credited himself, in his accounts as executor, with any sums turned over to himself as trustee. This ruling was again reaffirmed in Re Hood’s Estate, 104 N. Y. 107. See, also, Everson v. Pitney, 40 N. J. Eq. 539; Hall v. Cushing, 9 Pick. 395.

The judgment will be reversed, and the case remanded to the circuit court, with direction to proceed to an accounting. Costs will be awarded against the executor.

The other Justices concurred.