text:
    SHERK v. HOLMES.
    1. Contracts — Nonperformance—False Representations.
    Defendants, -who, in reliance on plaintiff’s statement that he had an option on certain mineral lands, promised to employ him to prospect the lands, could not be held liable for a refusal to carry out their contract, where it appeared that he had no valid option.
    3. Same — Construction.
    Where a contract provided that plaintiff should “at once proceed” to explore certain lands, for which services he was to be paid a stated sum, ' ‘ together with all traveling expenses made necessary in connection with his employment,” no payment could be required from defendants before any expenses were incurred, and hence a failure to advance money therefor was not a breach of the contract.

      3. Appeal — Bill oe Exceptions — Omissions—Presumption.
    Where a bill of exceptions sets out the testimony of the successive witnesses apparently in full, with nothing to indicate that any part of the evidence is omitted, the court will not entertain a presumption that there was evidence in contravention of a claim of fraud clearly established on the face of the record.
    Error to Wayne; Frazer, J.
    Submitted October 11, 1900.
    Decided October 31, 1900.

      Assumpsit by Thomas Sherk against John T. Holmes and George A. Beaton for the nonperformance of a contract. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Jonathan Palmer, Jr., for appellants.

      Herbert L. Baker and Frank B. Clark, for appellee.
   Hooker, J.

The parties made a contract in writing, as follows:

“This agreement, made between Thomas Sherk, John T. Holmes, and George A. Beaton, all of the city of Detroit, Michigan, witnesseth that—
Whereas, said Sherk has information respecting a tract of land of about six hundred acres, situated in Jackson county, in the State of North Carolina, upon which it is believed there is a deposit of mica, of great value; and
“ Whereas j said Sherk has more or less information respecting other parcels of land in the State of North Carolina upon which there are supposed to be valuable mineral deposits; and
Whereas, said Holmes and Beaton have information of a tract of land supposed to contain about six hundred acres, situated in Macon county, in said State, close to the southern boundary thereof, upon which it is believed there is a deposit of asbestos; and
Whereas, said parties have more or less information of other parcels of land in the western part of the State of North Carolina and adjacent parts of the State of Georgia upon which it is said there are valuable mineral deposits of various sorts:
“Now it is agreed:
“1st. That said Sherk shall, within the next fifteen days, prepare descriptions of the lands in addition to said Jackson county mica lands in respect to which he has information. Such descriptions are not expected to be definitely accurate, but sufficient to identify the different parcels of land to which he intends to refer, and shall furnish such descriptions within the time above mentioned to Holmes and Beaton.
“2d. Said Sherk is at once to proceed to the territory above mentioned, and bestow his time and attention in prospecting said Jackson county mica lands, and such other mineral lands as the' parties hereto may agree upon, and is to report all that he finds to said Holmes and Beaton. Said Sherk is not to engage in any other pursuit without the consent of Holmes and Beaton. For his services he is to be paid by Holmes and Beaton one hundred and fifty dollars a month, together with all traveling expenses made necessary in connection with his employment. Such employment is to continue until a corporation shall be organized for the purpose of taking over said Jackson county mica lands, not exceeding, however, one year from the date hereof. After further exploration of said Jackson county-mica lands, if the result of such exploration proves to be satisfactory, Holmes and Beaton are to furnish the money necessary for the purchase of said lands, and to develop the same, and to carry on the business of mining thereon. Said Sherk shall not be subjected to any part of the cost or expense of the purchase or development of said last-mentioned lands, or be in any way made liable therefor.
“ 3d. The interests in said Jackson county lands, and the business carried on in connection therewith, shall be divided between the parties as follows: Said Sherk shall have one-fourth, said Holmes and Beaton the remaining three-fourths.
“4th. If the parties hereto decide to purchase any of the other parcels of land of which said Sherk shall furnish the descriptions within the said fifteen days, then and in such case said Holmes and Beaton shall provide the money to make such purchase, to develop such lands, and to establish and carry on the business of mining thereon, and said Sherk shall not be made liable for any part thereof. The interest in such lands shall be divided between the parties as follows: Said Sherk shall have one-fifth, said Holmes two-fifths, and said Beaton two-fifths.
“ 5th. If the parties hereto shall decide to make the purchase of said asbestos lands in Macon county, or to purchase any lands aside from the Jackson county mica lands and aside from the lands in said list furnished by Sherk, then and in such case all the parties hereto shall furnish the money to pay for such purchase, and to develop such lands, and to carry on mining operations thereon in proportion to their interest therein, as follows: Said Sherk one-fifth, said Holmes two-fifths, and said Beaton two-fifths.
“6th. If Holmes and Beaton so decide, one or more corporations shall be organized by the parties hereto for the purpose of owning any of such mineral lands and for the purpose of carrying on mining operations thereon, and in such case the mineral lands designated by Holmes and Beaton to be owned and controlled by any such corporatipn, the title to which and rights held by either of the parties hereto shall be at once conveyed to such corporation or corporations, so as to vest such corporation or corporations with such title. But, whenever any such corporation or corporations are organized, the stock thereof shall be divided in the proportions hereinbefore mentioned, and issued to each party accordingly.
“7th. If Holmes and Beaton so decide (but not otherwise), said Sherk will consent to act as superintendent for a corporation that may be hereafter organized to operate what is known as the ‘Lyle Knob Property,’ situated in Macon county, North Carolina, but in that event said Holmes and Beaton shall make the bargain for such services, and the proceeds thereof shall be treated as an income of the business, in which the said Sherk has one fifth and said Holmes and Beaton the remainder.
[Signed] “Thomas Sherk.
“John T. Holmes.
“Geo. A. Beaton.
“Dated Nov. 9th, 1897.”

The plaintiff, Sherk, has brought this action to recover damages for nonperformance. The circuit judge left the case to the jury, and a verdict was returned for the plaintiff, and upon the rendition of judgment upon the verdict the defendants have appealed.

The defendants claim that the contract was obtained from them by means of the false statement that plaintiff had an option on the lands in contemplation of the parties, and that upon finding out that fact they declined to perform until he' should get such option; that he obtained two options, but neither was based upon a valid consideration. They claim also that, if said contract was binding, plaintiff broke it by neglecting to perform the services agreed upon. He claims that his reason for not performing the contract was that the defendants- did not provide money for the expenses of his trip. The court left the question of fraud to the jury, and also the construction of the contract as to expenses.

The representation was material if the parties saw fit to so consider it; and if the statement that he had an option was believed and relied upon, as the record indicates, the defendants might refuse to perform the contract until it should be procured, and it would not be unreasonable for them to hesitate in incurring expense until assured by a valid option that they could reap the benefit of their expenditure. There was positive evidence, admitted to be true, that the representation was made, and that it was untrue. It conclusively appeared that no consideration was paid for the alleged option subsequently obtained. The uncontradicted testimony shows it to have been believed and relied upon, and that objection was made because the option was not furnished. These things appearing without contradiction, the defendants were entitled to a verdict by direction of the court.'

It- is said that we cannot assume that there was no evidence in contravention of defendants’ claim of fraud, and that the record does not show that all of the testimony was incorporated in the bill of exceptions; but we think otherwise. See Schermerhorn v. Merritt, 123 Mich. 313 (83 N. W. 405), and authorities there cited.

We are also of the opinion that the construction of the contract should not have been left to the jury. It was in writing, and unqualifiedly provided that Sherk should “at once proceed to the territory,” etc. This was not contingent upon his being furnished with money for disbursements, nor was there a provision that money was to be advanced, but he was Jo be paid for his services a stated sum, “together with all traveling expenses made necessary-in connection with his employment. ” We are of the opinion that such payment could not be required before the expenses’ were incurred, and that a failure to advance money was not a breach of the contract.

The judgment is reversed, and no new trial ordered.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    BESSER v. WRIGHT.
    Appeal — Findings—Conflicting Evidence.
    A finding by the circuit judge, on conflicting testimony taken in open court, that the omission of a reservation from the vendee’s copy of a contract for the sale of land, supposed to be in duplicate, was a clerical error, will be given great weight on appeal.
    Appeal from Alpena; Emerick, J.
    Submitted October 12, 1900.
    Decided October 31, 1900.
    Bill by Herman Besser against John E. Wright and Harry Wark to enjoin the cutting and removal of certain timber. From a decree for complainant, defendants appeal.
    Affirmed.
    , O’Brien & Francis, for complainant.

      Charles B. Henry, for defendants.
   Hooker, J.

On December 31, 1897, Besser and Wright made a written contract, supposed to be in duplicate. The copy taken by Besser was as follows, viz.:

“Hillman, Mich., Dec. 31st, 1897.
“H. Besser agrees to sell to John E. Wright the west half of the southwest quarter of section 31, town 31 north, range five east, for the sum of $100, twenty dollars of which is to be cash, and the balance in five equal annual payments, with interest at 6 per cent, per annum; said Wright to pay all taxes assessed against the land hereafter. All cedar, ash, and elm timber reserved. Wright to have the privilege of paying in full at any time.
“H. Besser.
“John E. Wright.”

That taken byljWright did not contain the words, “ All cedar, ash, and elm timber reserved.”

Some time after the execution of said contract, Wright sold this timber to Wark, who made some ties from some of it, whereupon this hill was filed to restrain the further cutting of timber and the removal of the ties made. The circuit judge found that the omission from Wright’s copy of the contract of the words quoted was clerical, and granted a decree making the injunction perpetual upon payment by complainant to Wark of the value of the labor performed by him. The case is not free from doubt, but we think the judge, who saw the witnesses, was justified in finding that a preponderance of the evidence supported complainant’s claim. His opinion contains a fair review of the testimony, which we need not repeat.

The decree is affirmed,-with costs.

The other Justices concurred.


text:
    CORRIGAN v. HINKLEY. CORRIGAN v. DAVIS.
    Tax Sales — Vacation—Compensation for Improvements.
    Under section 142 of Act No. 229, Pub. Acts 1897, providing that no purchaser under any tax sale shall enter into possession of the land purchased until six months after notice to the parties in interest, a purchaser taking possession without giving such notice cannot, in a proceeding to vacate the decree under which he purchased, recover the purchase price, or the amount of taxes subsequently paid, or the value of his improvements made upon the land.
    Appeals from Ogemaw; Sharpe, J.
    Submitted October 18, 1900.
    Decided October 31, 1900.
    Petition by Michael Corrigan against Eugene Hinkley and Roscoe D. Dix, auditor general, and by Patrick Corrigan against Erank Davis and the auditor general, to vacate the decree in a tax proceeding. From decrees dismissing the petitions, petitioners appeal.
    Reversed.

      F. L. Snodgrass, for petitioners.

      Boss & Harris, for defendants.
   Hooker, J.

The only questions raised by the records in these cases are whether one who takes possession of lands sold for delinquent taxes, without giving the notice of six months required by law, can recover the purchase price, and the amount of taxes subsequently paid, and the value of improvements made upon the land during his occupancy, in a proceeding to vacate the decree under which he purchased; the circuit judge having required such payment as a condition precedent to the vacation of the decree. The complainant has appealed.

Section 148, Act No. 889, Pub. Acts 1897, provides:

“No purchaser under any tax sale hereafter made, or of any State tax land or any State bid hereafter sold, shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest as provided for in the preceding sections, unless he shall have acquired from said parties their title thereto, under conveyance from said party or parties of his or their interest in said land.”

The defendant must be presumed to know the law, of which his deed gave him notice. He was a trespasser in entering upon these lands, and is not entitled to pay for his improvements. He had not even a colorable right of entry, as in the case of Croskery v. Busch, 116 Mich. 288 (74 N. W. 464). We must hold that section 104 of the tax law of 1893 (1 Comp. Laws 1897, § 3927) has no application to one vyho enters in violation of section 142 aforesaid.

The other questions are ruled by Croskery v. Busch, supra, both being discussed in that case.

The complainant is entitled to a decree in each case reversing that of the circuit judge, and vacating the tax decree as to said lands, in accordance with the prayer of his petition, with costs of both courts.

The other Justices concurred.


author: Per Curiam.

text:
    PATTERSON v. BOARD OF REVIEW OF GRAYLING TOWNSHIP.
    Taxation — Exemptions—Law Library.
    Under section 9, subd. 7, of the general tax law (Act No. 206, Pub. Acts 1893), which provides that the library of every individual shall be exempted from taxation,' a law library belonging to an individual is exempt.

      Certiorari to Crawford; Sharpe, J.
    Submitted October 9, 1900.
    Decided November 7, 1900.

      Mandamus by Joseph Patterson, prosecuting attorney, to compel the board of review of Grayling township to restore to the assessment roll a law library stricken from the roll as exempt. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Joseph Patterson, in pro. per.

      George L. Alexander, for respondent.
   Per Curiam.

The only question in this case is “whether a law library is exempt from taxation,” under the provisions of section 9 of the tax law (Act No. 206, Pub. Acts 1893), which provides:

“The following personal property shall be exempted from taxation, to wit: * * * 7. The library, family pictures, school books, one sewing machine used' and owned by each individual or family, and wearing apparel of every individual.”

We think that libraries belonging to individuals, whatever may be their character, are exempt under this section, and such we understand to have been the uniform interpretation that has heretofore been placed upon it.

The order of the circuit court is reversed, and a mandamus denied.


text:
    BOARD OF STATE TAX COMMISSIONERS v. QUINN.
    1. Taxation — State Tax Commissioners — Correction of Roll-Changed Valuations — Duty of Assessor.
    Section 39 of the general tax law (Act No. 206, Pub. Acts 1893) provides that the assessor shall assess the taxes according to the valuations entered in the assessment roll by the board of review. Act No. 154, Pub. Acts 1899, §§ 152-154, authorize the board of State tax commissioners to change and correct the valuations in the assessment roll as made by the board of review, and to add property omitted therefrom. Held, that the term'“ board of review,” in section 39, applies to the local board or the State board, as circumstances require, and, where the State board has changed the valuations, the taxes should be assessed according to the valuations as so changed.
    2. Same — Ministerial Duties — Subordinate Offioers.
    An assessor may not refuse to spread the taxes upon his roll according to valuations fixed by the board of State tax commissioners because he is of the opinion that the action of the board is irregular and. void for nonconformity to the requirements of the statute.
    3. Same — Local Self-Government^Constitutional Law.
    Act No. 154, Pub. Acts 1899, creating a board of State tax commissioners to supervise and correct assessments, is not void as an infringement upon the constitutional right of local self-government.

      Mandamus by the board of State tax commissioners to compel John H. Quinn, assessor of the city of Ishpeming, to spread the taxes upon his roll according to the increased valuations fixed by said board.
    Submitted October 30, 1900.
    Writ granted November 7, 1900.

      Horace M. Oren, Attorney General, for relator.

      H. O. Young (JB. J. Broten, of counsel), for respondent.
   Hooker, J.

The board of State tax commissioners applies for a mandamus to compel the respondent, who is the assessor of the city of Ishpeming, to levy all of the taxes upon his assessment roll, including local, county, and school, as well as State, taxes, according to the increased valuations placed upon property upon said roll, and not according to the valuations of the local board of review, which its petition alleges that he refuses to do. The petition states that it was made to appear to the board that certain property in the city of Ishpeming had been omitted from the assessment roll of the city, and that individual assessments therein had not been made in accordance with law, and that thereupon said board made an order requiring the city assessor of said city, and the supervisors and assessors of other municipalities in said county, to appear before said board with their respective assessment rolls at a time and place therein designated, and that said order was duly served upon each of said officers. It alleges further that, at the time and place mentioned, said board met,- a majority of the members thereof being present, and reviewed the assessment rolls produced, including that of the respondent, and determined upon satisfactory evidence that a number of additions and alterations should be made to respondent’s roll; and the board placed in a proper column, after the respective descriptions of said property, the true cash value as determined by said board, and added to the said roll as corrected the certificate required by section 152 of the tax law, being section 152 of Act No. 151 of the Public Acts of 1899; and that it became the respondent’s duty to spread the taxes upon the basis of said corrected valuations. The respondent does not deny his refusal to so spread the taxes, but by way of answer attacks (1) the constitutionality of the law establishing said board ; (2) the validity of its order, and subsequent action in reviewing and certifying the roll; (3) the claim of the board that the law requires him to spread the tax upon its valuation.

It is maintained that the act creating this board is susceptible of a construction in harmony with the idea of local self-government, and that, if it can be said that it was designed to obtain information for the purpose of the State and local authorities, upon which the latter might act in the performance of their duties, it may not be unconstitutional ; but that, if it is to be construed to authorize the board to alter and change the assessment roll, it deprives constitutional officers of their powers, and the municipalities of their constitutional right of local regulation of such'matters, which, it is said, existed at the time the Constitution was adopted, and was recognized and preserved by it. We think sections 152, 153, and Í54 of said law inconsistent with the theory that the work of this board is merely advisory. It seems to have been contemplated that the board should review the assessments of individuals. Hence section 152 provides for notice to persons whose assessments are questioned, and an opportunity for them to be heard. The board establishes the valuation, and its action is .made final. There is no hint that it is advisory to the assessor. He has no further act to perform in relation to establishing such value; not even to place the values determined by the board on the roll. It is done by the board, and it is called a “change” and a ‘ ‘ correction ” of the roll. Not only may the board deal with individual assessments, but, when a general review is required, it may be made. This is especially provided fox-, and indicates that what precedes it with reference to individual assessments was not supposed to cover a general review. The board reviews the roll, and determines, not what shall be done by some one else, or at another time, but the “amounts of the assessments;” and it may change them to conform to the law. Section 154 shows that it was intended that their conclusions should be acted upon, for it requires the board of supervisors to levy against property which has in previous years escaped taxation a tax for the several years that it has escaped at the rate which has been paid by others during said years, which it is made the duty of the board of supervisors to ascertain.

It is said that it was not intended that the assessor should spread the tax upon the basis of the roll as corrected by the State board, and that this is evidenced by the failure of the legislature to amend or repeal section 39, Act No. 206, Pub. Acts 1893, which provides that “the supervisor * * * or assessing officer * * * shall proceed to assess the taxes apportioned to his township or assessment district according and in proportion to the valuations entered by the board of review in the assessment roll.” We think a construction is possible which can give effect to all of the provisions of the statute. In case the State tax commission should make no change in a particular roll, the tax would be spread upon the roll as left by the local board of review. If such changes should be made, however, it would practically nullify their action to hold that the assessor should follow the strict letter of the act, and assess upon the basis of the roll as left by the local board of review. Had the tax law, including the amendments, been passed as a whole in the first instance, we should find no difficulty in saying that the intention was discernible, and that the term “board of review” was used as descriptive of the character of the board, and meant the board of final review in that particular instance, and that the term was intended to apply to the local board or the State board, as the circumstances might require. There is no reason for applying a different rule of construction where the apparent inconsistency arises between the original act and the amendatory sections, for all is to be considered as one act for the purpose of construction, under the well-settled rule.

The answer states, upon information and belief, that the action of the board was irregular and void for nonconformity, in some particulars, to the requirements of the statute. We have several times held that it is not the duty of an- officer to omit a statutory duty because of an opinion that the action of his superiors has not conformed to law. He has merely to do his duty as prescribed by law, leaving the regularity of the action of others to be determined by the courts. Union School Dist. v. Parris, 97 Mich. 593 (56 N. W. 924); City of Jackson v. Jackson County Treasurer, 117 Mich. 305 (75 N. W. 617); Laubach v. O’Meara, 107 Mich. 29 (64 N. W. 865); Scholtz v. Smith, 119 Mich. 634 (78 N. W. 668); Attorney General v. Finney, McGrath, Mand. Cas. No. 1318.

Having reached the conclusion that the act cannot be given the construction contended for, and that it was designed to give large powers of review to the State board, whose action should be final, and is to be acted upon by the officers whose duty it is to levy the taxes, there remains the single question of the constitutionality of the law. Counsel have reargued the questions which were before us in the case of Board of State Tax Com’rs v. Board of Assessors of Grand Rapids, 124 Mich. 491 (83 N. W. 209). We are of the opinion that the constitutional questions are covered, and should be considered settled, by that case.

The writ will issue as prayed.

The other Justices concurred.


author: Grant, J.

text:
    JAMES v. SWEET.
    Malicious Prosecution — Evidence—Malice.

       1. In an action for a malicious prosecution, the fact that the city attorney advised that the ordinance under which plaintiff was arrested was void is not evidence of malice.
    2. Citizens and city officers are justified in taking proceedings in the courts to test the validity of an ordinance, and are not subject to an action for malicious prosecution, if they did not act maliciously or oppressively.
    3. Plaintiff was not put under any restraint by the officer until after conviction. He was urged to appeal his case before commitment, and avoid confinement, but by the advice of his attorney went to jail, and remained overnight, where he was not treated as a prisoner, but was provided with a good room and bed, and ate his meals with the sheriff. Held, that the court properly directed a verdict for the defendants.
    Error to Washtenaw; Kinne, J.
    Submitted April 4, 1900.
    Decided November 13, 1900.
    Case by Luther L. James against Zenas Sweet and others for malicious prosecution. From a judgment for defendants on verdict directed by the court, plaintiff brings error.'
    Affirmed.
    Plaintiff sued the defendants in an action for malicious prosecution. The court directed a verdict for the defendants. Section 88, subd. 23, of the charter of the city of Ann Arbor (Act No. 331, Local Acts 1889, as amended by Act No. 336, Local Acts 1895), confers upon the common council certain powers, among which is the power to license and regulate—
    “Auctioneers, peddlers, pawnbrokers, junk dealers, dealers in second-hand goods and merchandise, and transient tradesmen, auctions, peddling, pawn brokerage, taverns, hotels, victualing houses, restaurants, saloons, [or other houses for furnishing meals, food, or drink, and keepers of billiard tables and ball alleys not used for gaming. Whoever occupies any premises within the city of Ann Arbor for a temporary period only, and is not assessed for taxes in said city, and who offers for sale goods, wares, or merchandise, is hereby defined and declared to be a transient tradesman.”
    Under this authority the common council enacted the following ordinance:
    “Section 1. No person or persons, firm or corporation,1 shall ply the vocation of transient trader in the city of Ann Arbor without first obtaining a license as herein provided.
    “ Sec. 2. A transient trader, as used in this ordinance, shall be construed to mean a person, by himself or in company with others, who occupies premises within the city for a temporary period, and is not assessed for taxes in the city, and who offers goods, wares, or merchandise for sale.

      “ Sec. 3. Before any license shall be granted under this ordinance, the person or persons, firm or corporation, desiring the same shall make application to the common council in writing, specifying the kind of business the applicant proposes to engage in, the time it is to be carried on, and the place where such goods are to be sold, and shall, at the time of making such application, deposit with the city clerk of said city the amount of the license fee required by this ordinance.
    “Sec. 4. The license fee required by this ordinance shall be as follows: For the right and privilege of selling goods at retail by sample, ten dollars ($10.00) per day for the first ten days, and five dollars ($5.00) per day for each and every day in addition thereto. For the right and privilege of selling goods from a stock actually kept on hand, from which selections are made by the purchaser, ten dollars ($10.00) per day for the first twenty days, and three dollars ($3.00) for each and every day in addition thereto.
    “Sec. 5. Nothing in this ordinance shall be construed to prohibit the sale of goods, wares, or merchandise to local merchants and dealers who are already engaged in or about to engage in business in said c ity of Ann Arbor.
    “ Sec. 6. The sum so paid by such party or parties may be remitted by the order of the city council, provided it is shown that the party or parties to whom such license has been issued have become a permanent resident of this city, and that the stock of goods owned and controlled by them has become subject to assessment and has been wholly assessed by the city assessor of the city of Ann Arbor, and that the taxes thereon have been paid.
    “Sec. 7. Any person violating any of the foregoing provisions of this ordinance shall, on conviction thereof, be punished by a fine not to exceed one hundred dollars, or imprisonment in the city lockup or the Washtenaw county jail not to exceed ninety days, or both fine and imprisonment, in the discretion of the court.”
    Plaintiff was arrested under this ordinance upon' complaint of defendant Sweet, who was the city marshal; was tried in a justice’s court by a jury, found guilty, appealed his case to the circuit court, and was there acquitted under the instruction of the circuit judge, who held the ordinance void. Plaintiff and his copartners were transient traders within the meaning of the charter and ordinance. They made no defense upon the facts. For the purpose of this case, therefore, the question of whether they were “transient traders” is eliminated by a verdict of the jury. The record does not show what reasons were given by the circuit judge in directing the verdict. The declaration contains counts for false imprisonment and malicious prosecution. Counsel for plaintiff in this court insist only upon the count for malicious prosecution, as that is the only question they have argued.

      Arthur Brown and O. E. Butterfield (John E. Lawrence, of counsel), for appellant.

      A. J. Sawyer & Son (Cavanaugh & Wedemeyer, of counsel), for appellees.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). We affirm the direction of the court. There was no dispute as to the facts, the defendants putting in no testimony.

This ordinance had been in force for some time. Some persons had paid the license fees required, and complaints had been made against others. Mr. Sweet made the complaint after consultation with the mayor, and after plaintiff, the mayor, and Sweet had had one or more conferences about the matter. The mayor informed plaintiff and his partners, who had taken a lease of the store for only two months, that if they paid their license, and afterwards became taxpayers, the money would be refunded, and also suggested that they might give a bond instead of paying the money. Plaintiff was not put under any restraint whatever until after he was convicted. He then,. after consultation with, and by the advice of, his attorney, went with the officer to jail about 5 o’clockp. m., where he remained overnight, appealed his case the next morning, and was discharged. At the jail he was not treated like a prisoner, but was provided with a good room and bed, and ate his meals with the sheriff. He was urged to appeal his case before commitment; and thus avoid confinement. After his nominal arrest, Mr. Sweet applied to the city attorney to prosecute the case. The city attorney declined, giving as his reason that, in his opinion, the ordinance was void, under the case of City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32 (63 N. W. 985). He advised Mr. Sweet not to proceed with the prosecution, but to have the case dismissed, unless he obtained a bond of indemnity. The leading business men of the city were anxious' to have the ordinance tested, and 19 of them executed to Mr. Sweet a bond for that purpose, drawn by the city attorney. Among them were the defendants Reinhardt, Mack, Goodspeed, and Wagner. Two of the business citizens called upon the city attorney, and he told them that, if some good lawyer in the city would give his opinion that the ordinance was good, he would contribute towards prosecuting it. Mr. A. J. Sawyer, an attorney of experience and ability, was consulted, and gave his advice that the ordinance was good, and that the Saginaw Case did not apply. The trial then proceeded. The attorney representing the city asked for a jury trial. Plaintiff was represented by an attorney, and introduced no testimony. The principal defense evidently was the invalidity of the ordinance. The jury was summoned by a constable who was called for that purpose by Mr. Sweet, who told him that this was a business men’s suit, and he wanted him to get business men upon the jury.

Counsel for plaintiff claim that there was a conspiracy on the part of the defendants and other business men to prosecute and convict the plaintiff. We need not set forth the testimony. It is sufficient to say that we find no evidence of any conspiracy, or any attempt to deal unfairly or oppressively with the plaintiff. ' The fact that the city attorney had advised that the ordinance was void was not evidence of malice, or of want of probable cause. Citizens and the city officers were justified in taking proceedings to have the validity of the ordinance determined in the courts, and, so long as they did not act maliciously or oppressively, the law protected them in so doing; otherwise an attorney might close the courts to the determination of these questions, unless some official was willing to run the risk of a suit for false imprisonment or malicious prosecution. The plaintiff was treated with the utmost consideration by all concerned, and there is no testimony tending to show that these defendants or other citizens acted from malice. Rogers v. Olds, 117 Mich. 368 (75 N. W. 933); Tillman v. Beard, 121 Mich. 475 (80 N. W. 248); Brooks v. Mangan, 86 Mich. 576 (49 N. W. 633, 24 Am. St. Rep. 137).

It is unnecessary to discuss the ordinance. It differs from that in the Saginaw Case very materially, in that this ordinance applies to residents and nonresidents alike,' while the Saginaw ordinance was aimed at nonresidents alone, and for that reason was held void. The reasonableness of the license fee was not decided.

Judgment affirmed.

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


text:
    HUNT v. RABITOAY.
    Life Tenant — Purchase of Hostile Claims — Decedent’s Estate — Allowance of Claims — Effect—Partition—Validity —Deed of Insane Grantor.

      1. A life tenant cannot purchase hostile claims to set up in opposition to the original title during his life tenancy.
    2. The allowance of claims against the estate of a deceased person conveys no title to the land which may be sold to pay debts.
    3. Certain recitals in deeds, long possession and occupation, the making of improvements, the sales of land, and an acquiescence for more than 50 years, afford sufficient proof of an actual partition by deed or by proceedings in the probate court.

      4. Partition of lands by guardians of infants and incompetents will be sustained, where the partition is fair and equal.
    5. Only privies in blood or the legal representatives of a de1 ceased party can avoid the deed of an insane grantor.
    Appeal from Wayne; Carpenter, J.
    Submitted April 13, 1900.
    Decided November 13, 1900.
    Bill by Eleanor C. Hunt and others against Frank Rabitoay and others for a partition. From a decree dismissing the bill, complainants appeal.
    Affirmed.
    Complainants seek partition of a part of private land claim 121, situated in the township of Ecorse, Wayne county, containing 55 acres. The entire claim contains 250 acres, was a long, narrow strip fronting on the Detroit river, and was divided by a stream, between which and the river were about 60 acres. This stream was a fork of the river Ecorse. Andre Viger was the original patentee of this claim. He died in 1812, leaving two daughters, Marie and Marie Louise. The record does not show the dates of their birth, but an old probate record of April 3, 1820, recites that the “two girls are now of age.” Marie Louise was non compos mentis. August 25, 1825, one John L. Castignett was appointed her guardian. The other daughter, Marie, had been married to one Bartin. On August 27, 1825, Mrs. Bartin and her husband conveyed by deed all that part of said claim lying between the Detroit river and the fork of the river Ecorse to one Jean Baptiste Massicot, which deed was duly recorded May 30, 1833. Massicot gave three mortgages upon this land, dated, respectively, July, 1828, September, 1830, and February, 1835. They purported to convey the entire land. On May 13, 1835, Massicot conveyed the land by deed to Jean Baptiste Vermitte, which deed also assumed to convey the entire land. On October 7, 1835, Vermitte conveyed the land by deed to Jean B. Bondie. This deed recited that “said tract of land was confirmed unto Andre Viger, and from said Viger confirmed unto Jean Baptiste Massicot by Louis Castignett, Jacques Bartin, and Mary Bartin, wife of said Bartin, and heirs of said Andre Niger, deceased.” Bondie took possession of the land, and lived thereon until his death, October 4, 1859. He erected a house upon it, and paid the taxes. He sold at various times four small parcels, conveying the same by warranty deed. Two of these parcels were sold to George Clark, the ancestor of complainants, under whom they claim.
    Jean B. Bondie died testate October 4, 1859, seised of the remainder of the land thus conveyed to him, and which is the land in dispute. By his will Jean Baptiste Bondie devised this same land to his son Alexander for life, with remainder over to the children of said Alexander, and the children of his two daughters, their heirs and assigns. On September 11, 1865, Alexander, by an instrument in form a lease, conveyed the premises to said George Clark in consideration of $400, and the lessee’s pi’omise to pay all taxes then or thereafter levied against the land, to keep the premises in good repair, and to surrender the same at the expiration of the lease, namely, at the death of Alexander, to his heirs, representatives, and assigns, in good repair. By this instrument Clark became the purchaser of the life estate of Alexander. Clark went into possession under this lease, which was never surrendered or terminated. Clark died intestate October 14, 1877. Complainants (his heirs at law) succeeded to his rights, held and occupied the land, and were in possession at the time this suit was brought. The defendants are the grandchildren of Jean Baptiste Bondie, or their grantees, and are the remainder-men entitled to the land after the falling in of Alexander Bondie’s estate. Alexander Bondie was living when this suit was brought, heard, and decided in the court below. He died in November, 1899, after the case was appealed to this court.
    On September 16, 1833, one Joseph Piatt was appointed guardian of Marie Louise. On April 16, 1836, he applied to the probate court for authority to sell a certain portion of the land formerly belonging to Andre Viger, lying'in the rear of the land in dispute. This petition recited that “said Andre died seised and possessed of 360 acres of land, which one-half of said land descended unto the said Marie Louise Viger, and the other half unto Marie Viger, wife of Jacques Bartin, which was subsequently divided amicably by and among the heirs of said Andre, deceased.” This land was sold under an order of the court, June 27, 1836, to Laurent Drouillard for $495, which sale was confirmed. Drouillard on the same day conveyed the same land to the guardian, Piatt, for $500. In 1825 or 1826, Marie Bartin conveyed to Peter Godfroy, who was the administrator of her father’s estate, all of her right and title to the land fronting on Ecorse creek. This deed does not include the land in dispute, but included the 180 acres in the rear of it. This deed was recorded December 20, 1826. On March 10, 1830, she made another deed, conveying one-half of this rear 180 acres, in which it was recited that the land had been amicably-divided between the heirs of said Andre. On June 24, 1833, Godfroy deeded this land conveyed to him. by Marie Bar-tin to Piatt, the guardian of Marie Louise. This deed also recited an amicable partition of the land by the heirs. The consideration expressed in the deeds from Mrs. Bar-tin to Godfroy was only $60. ■
    Piatt lived on this rear 180 acres until his death, which occurred some time between the years 1854 and 1862. Marie Louise, his ward, lived with and was supported by him. Mr. Piatt stated that he “had that property for taking care of the girl Louise Viger.” On February 18, 1854, Joseph Piatt and his wife, Monique, conveyed to their son Francis the entire south 60 acres of said north 180 acres, in which it was recited, “and the said Francis, his heirs, executors, and administrators, will maintain Marie Louise Viger, if she is the survivor of the said Joseph and Monique aforesaid.” On December 7, 1862, Francis Piatt conveyed the land to one Joseph Dubo, and in this deed the land was incumbered with the duty on the part of Dubo to maintain Marie Louise Viger, if she should be the survivor of the said Monique Piatt. Marie Louise died November 16, 1868. An administrator was appointed upon her estate. The administrator inventoried a half interest in the land in dispute as belonging to the estate. Some claims were allowed, of which Clark took an assignment, and a quitclaim deed from the claimants of their supposed interest in the land. It being represented that Marie Louise died without heirs, and that her property, therefore, escheated to the State, the proper State officers executed a deed to Rebecca Jane Clark, who was the widow of George Clark, of the interest of the State in the land, for a nominal consideration. Thereupon the complainants in this case, and others, filed a bill in chancery against the unknown heirs of Marie Louise Viger to quiet their title. None of the defendants in this suit were made parties to that suit. A decree was rendered in accordance with the prayer of the bill. This cause was heard upon pleadings and proofs, and a decree entered dismissing complainants’ bill.

      Bethune Dnffield (John D. Conely, of counsel), for complainants.

      John W. Beaumont and Eugene 8. Clarkson, for defendants.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The court below entered a decree dismissing the bill, for the reason that complainants could not, during the lifetime of Mr. Bondie, the life tenant, purchase hostile claims and set them up in opposition to the title of the life tenant. Mr. Clark during his life, and complainants since his death, were in possession of the entire property as owners only of the life estate. They stand in the same position as did Alexander Bondie, and have no more right than he possessed. Their relation is so nearly that of landlord and tenant that the complainants cannot be heard to dispute the title of the life tenant. Board v. Board, L. R. 9 Q. B. 48; Caufman v. Presbyterian Congregation, 6 Bin. 59.

Mr. Clark could purchase outstanding titles to set up against the title of the remainder-men upon the termination of the life tenancy. Clark v. Adie, 2 App. Cas. 435; Robertson v. Pickrell, 109 U. S. 608 (3 Sup. Ct. 407); Fuller v. Sweet, 30 Mich. 239 (18 Am. Rep. 122).

It would be unnecessary, therefore, to discuss other questions in the case, were it not for a stipulation filed in this court by the solicitors for the respective parties that the case might be heard here as though commenced after the death of Alexander Bondie. This stipulation, however, makes it necessary to dispose of the case upon other grounds.

Complainants have no title except by deed from the State as escheated land. The administration of the estate of Marie Louise was settled and final account allowed, the land was not sold, and by the administrator no proceedings were taken to sell. The allowance of claims against an estate conveys no title to the land which may be sold to pay debts, and the deeds, made by the owners of claims against the estate, were worthless to convey title.

Two questions are presented for determination: (1) Was there an amicable partition of these lands by deed or by parol ? (2) If such partition was made, was it valid as against Marie Louise, an incompetent ? A third question is also raised, viz.: If the partition was by parol, is it valid ?

Our statute was adopted from that of New York, and before its adoption here the question was decided in Jackson v. Harder, 4 Johns. 202 (4 Am. Dec. 262), in which a parol partition was held valid. See, also, Jackson v. Vosburgh, 9 Johns. 270 (6 Am. Dec. 276). We, however, deem it unnecessary to decide this question.

We think the recitals in the deeds above mentioned, the possession and occupation of the land by each, and the improvements made thereon for a long series of years, and the sale of a portion of the land north of Ecorse creek as belonging to Marie Louise, and the sale of four parcels by-Jean B. Bondie, furnish sufficient proof, after so long a period, that there was an actual partition of the land by deed or by proceedings in the probate court, which have been lost and were not recorded. The recitals in these old deeds and the conduct of the parties are consistent only with an actual partition. After the expiration of 60 years, it is a just conclusion, under the record in this case, that there was a legal partition.

It is urged by complainants that the partition, if one was made, was of the land north of the Ecorse river, and not of the land in dispute, which lay south of it. Without setting out more fully the testimony in detail, we are satisfied that this is not the correct conclusion to be deduced from the facts. There is no testimony in the record to indicate that Mrs. Bartin or her grantees ever made any claim to any portion of the land north of the creek after the partition. On the contrary, as already shown, Mrs. Bartin and her grantees treated the land in dispute as their own, and the guardians of Marie Louise acquiesced. It is also apparent that the land north of the creek was treated as belonging to Marie Louise.

We think partition of lands by the guardians of infants and incompetents is fully sustained by the authorities as well as by reason. Either co-tenant could compel a partition. What may be compelled' by the law parties should be allowed to accomplish amicably, so long as no advantage is taken and the partition is equal. Freem. Co-Ten. §§ 414, 415; 2 Co. Litt. §§ 243, 258; Williard v. Williard, 56 Pa. St. 119; Brooks v. Hubble, (Va.) 27 S. E. 585. The territorial law then in force authorized the guardian “to divide the real estate in as full and ample a manner as the idiot, lunatic, non compos or distracted person might or could were they restored to the full use of their rational faculties.” 1 Terr. Laws, 377. Whatever may be the interpretation of this statute, it certainly evidences an intent to repose a broad power in the guardian.

There is no evidence in this case to show that this partition was an unequal one. If, however, it were unequal, these complainants are not in position to raise that question and to avoid it. They are neither privies in blood nor are they the legal representatives of Marie Louise Niger, and only these two classes can avoid the deed of an insane grantor. They simply hold as purchasers of escheated lands. 1 Jones, Real Prop. § 64; Hunt v. Weir, 4 Dana, 347; Beverley's Case, 4 Coke, 123b; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236 (19 Am. Dec. 71).

Decree is affirmed.

The other Justices concurred.