author: Long, J.

text:
    Adelia A. Olin v. David C. Lockwood et al.

      Replevin — Contest between, mortgagees — Judgment.
    1. How. Stat. § 8342, which provides that “when either of the parties' to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact ma.y be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter [288], and the finding of the jury or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties,” is only applicable to a case where one party is the general owner, and the other a lienor or part owner.*

    2. Where a prior mortgagee replevies the mortgaged property from the second mortgagee, and its value as found by the jury exceeds the amount of the mortgages, and the jury further find that the property was unlawfully detained by the defendant, the plaintiff is entitled to’a judgment and to the costs of suit.
    Error to Iron. (Stone, J.)
    Submitted on briefs October 2, 1894.
    Decided November 20, 1894.
    Replevin. Plaintiff brings error.
    Reversed, and judgment entered in this Court in accordance with the opinion.
    The facts are stated in the opinion.

      Julius J. Pateh, for appellant.

      Moriarty & Abbott, for defendants.

       For cases bearing upon the proper construction of and practice under said section, see Upham v. Caldwell, 100 Mich. 264, and note.

   Long, J.

Action of replevin. Neither plaintiff nor defendants are the general owners of the goods replevied, but are mortgagees. Plaintiff took them into her possession under the writ against defendants. There is no dispute of fact. Plaintiff had a prior mortgage lien on the property, which the jury found amounted to $611.07, and the defendants’ second mortgage amounted to $376.35. The value of the property was found to be $1,060. The jury also found by their verdict that the property was unlawfully detained by defendants. Upon this verdict, the court directed a judgment to be entered in favor of the defendants against plaintiff for the amount of their lien of $376.35, and, that defendants have execution therefor. Judgment was given plaintiff for costs of suit against defendants, and execution for the collection of such costs awarded. Plaintiff brings error.

It is insisted that under this verdict the only judgment which could be entered was one in favor of plaintiff for costs against defendants; that if defendants desired to have the goods in their possession they should have tendered plaintiff the amount of her lien and costs; but that, not having made such tender, they could not waive return and have their lien assessed against plaintiff, and thus have their money judgment against her. Plaintiff’s mortgage was conceded to be the first lien, and had to be first paid out of. the property. For the purpose of enforcing this lien by foreclosure and sale, the plaintiff was entitled to possession of the goods and chattels; and the jury found that they were wrongfully detained by defendants. It cannot be said,'because the jury found the value to be $1,060, that plaintiff, on such foreclosure sale, could realize that amount. If the goods fell short of bringing the amount-of the two mortgages and costs, certainly the loss should not fall upon the first mortgagee; and yet, under the judgment entered, this would be the result, for the plaintiff, being compelled to pay the defendants the amount of their mortgage lien in full, might not be able to realize that amount out of the goods after satisfying her mortgage and costs of foreclosure.

How. Stat. § 8342, provides that when either of the parties to an action of replevin, at the time of commencement of suit, has only a lien upon, or special property or part ownership in, the goods, and is not the general owner, that fact may be proved on the trial or on the assessment of damages, and the .finding of the court or jury shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties. Under this statute it is claimed by defendants that the court properly directed a finding of the amount of the lien of each party, and that the only judgment which could in justice be rendered is the. one directed by the court. This provision of the statute is applicable to a case where one party is the general owner, and the other a lienor or part owner. Here the parties both had liens only. The prior lienor had the right of possession, unless the amount of her lien was paid or tendered. If the defendants desired to have a return of the property, this was the way to obtain it; but they had no right to a money judgment against the plaintiff. Under the findings of the jury the judgment should have been in favor of the plaintiff and for costs of suit. Kennedy v. Dawson, 96 Mich. 79; Frederick v. Circuit Judge, 52 Id. 529.

Inasmuch as there is no dispute of fact, the judgment below will be reversed, and judgment entered here in accordance with the above, with costs of this Court in favor of the plaintiff.

. McGrath, C. J., Grant and Montgomery, JJ., concurred. Hooker, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Michael J. Enright v. George Duff et al., Police Commissioners of the City of Port Huron.

      Municipal corporations — Removal of police — Authority of commissioners.

    By the amended charter of the city of Port Huron (Act No. 392, Local Acts of 1893), the police force, which had been under the control of the common council, and the members of which were not subject to removal until charges had been preferred against them, and they afforded an opportunity of being heard in their defense, was placed under the control and management of a commission created by the act, with exclusive power to appoint members of the force, and to suspend or remove policemen under and for such causes as should be fixed by the ordinances and charter of the city and the rules adopted by the commission. It was further provided that the existing police force should continue to hold their offices until their successors should be appointed and qualified. And it is held that the members of the police force had no fixed tenure of office at the time of the enactment of said statute; that its evident purpose ,was to confer upon the commission authority to reorganize the force; and that a policeman who received his appointment under the earlier law cannot complain of his removal by the commission for his alleged physical incompetency, on the ground that charges were not preferred against him, and the question of his physical incapacity tried and determined by said commissioners.

      Certiorari to St. Clair. (Yance, J.)
    Argued October 2, 1894.
    Decided November 20, 1894.
    Eelator applied to tbe circuit court for mandamus to compel respondents to reinstate him as a member of tbe police force. Eespondents bring certiorari to review order granting tbe writ.
    Eeversed.
    Tbe facts are stated in tbe .opinion.

      Nortlmp & O’Donnell, for relator.

      Phillips & Jenhs, for respondents.
   Montgomery, J.

This is certiorari to review the decision of the circuit judge granting a mandamus to compel the reinstatement of the. relator as a member of the police force of the city of Port Huron.

It appears by the return that the police commissioners removed the relator after having caused a physical examination to be made, and having apparently satisfied themselves that the relator was physically incompetent. No charge was brought against the relator of any misconduct, nor is any now suggested. His contention is that he was entitled to have charges regularly preferred against him, and the question of his physical incapacity tried and determined by the board of commissioners, before they were justified in causing his removal.

Prior to 1893 the control of the police was in the common council of the city, and an ordinance had been adopted which provided, by section 6, that—

“No policeman shall be removed until charges shall have been preferred against him, and he afforded an opportunity of being heard in his defense. But pending the hearing of such charges, the chief of police may suspend such member from duty.”

It is contended by the police commission — First, that this ■ordinance, if it be deemed in force, should not be construed to have application to cases of removals for physical incapacity, — that the word “charges” implies something more than a determination of physical incapacity for the service; and, second, thát, under the amendment to the laws hereinafter noted, the power to reorganize the police force and to displace the incumbents was conferred upon the police commission when organized, and that those holding under earlier appointment could, upon the reorganization, be displaced by the appointment of successors. If this contention be sound, it becomes unnecessary to determine what would have been the relator’s right under the earlier law.

The provisions of the amended charter are found in Act No. 392, Local Acts of 1893. At page 1165, section 48 provides that—

The police force of the city of Port Huron, as now organized, shall be under the control and management of a police commission hereby created.’’

After providing for the constitution of the commission, it is further enacted as follows:

“ Said commission shall, within 60 days after the passage of this act, and on the first Monday of June in each year thereafter, appoint a chief of police, who shall be ex officio marshal of said city, and perform all the duties to be performed by the marshal under the charter and ordinances of said city. Said commission shall have the exclusive power to appoint members of the police force, to suspend or remove the chief of police or policemen under and for such causes as shall be fixed by the ordinances and charter of said city and the rules adopted by said commission.’’

Further:

Said commissioners shall serve without compensation, and the city clerk shall be ex officio clerk of said commission: Provided, that the chief of police or any policeman shall not be appointed or removed except by a vote of the majority of the members of said commission: And Provided, further, that the present police force, including the chief, shall continue to hold their respective offices until their successors are appointed and qualified.”

We think that by these provisions it was intended to confer upon the commission power to reorganize the police force in the first instance. The commission is given exclusive power to appoint members of the police force. It is further provided that the present police force, including the chief, shall continue to hold their respective offices until their successors are appointed and qualified. This provision is certainly not apt to express an intent that successors shall only be appointed to the members of the force after the incumbents have been tried for offenses or incompetency, and dismissed from the service. The members of the force had no fixed tenure at the time of the enactment of this statute, and the evident purpose was to confer upon the new commission the authority to reorganize the force. The relator is not an appointee of the present commission, but derives his appointment from the common council under the earlier law. This being the case, he was subject to removal, and is not in position to complain of the action of the commission.

The order directing his reinstatement will be reversed.

The other Justices concurred.


text:
    Seth W. Fields v. Merrill Colby, Highway Commissioner of the Township of Iosco.
    • Equity practice — Appeal—Highways—Public necessity — Cul de sac.-

      1. "Where the record in a chancery appeal case consists of the bill, answer, replication, decree, and a claimed copy of the proofs taken in open court, but no case has been settled as provided by the statute, the proofs cannot be considered, but the cáse will be heard on the bill and answer.

      2. A bill in equity is no evidence for the complainant; and where the case is submitted on bill and answer, and no exceptions are filed to the latter, relief must be based on the admissions in the answer; and, if it denies or does not admit any averment that is material to the prayer, for relief, the bill must fail; citing Wiegert v. Franck, 56 Mich. 200.
    3. A sworn answer to a bill in equity must be taken as true where the case is heard on bill and answer; citing Ruhlig v. Wiegert, 49 Mich. 399.
    4. There is no statute or rule of law that expressly determines that, before a public highway can be laid out, it must have certain and definite termini in other public highways.
    Appeal from Livingston. (Person, J.)
    Argued October 4, 1894.
    Decided November 20, 1894.
    Bill to restrain defendant from taking further proceedings to open a highway. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Edward S. Grece and J. L. Pettibone, for complainant.

      John Oummiskey and 8. S. Abbott (Luke 8. Montague, of counsel), for defendant.
   Long, J.

A decree was entered in the court below dismissing complainant’s bill, from which he appeals. The record returned here contains the bill, answer, replication, decree, and a claimed copy of the proofs taken in open court; but, as no case was settled as provided by statute, the proofs cannot be considered. The appeal will not be dismissed, but the case heard here on bill and answer/

A bill in equity is no. evidence for complainant; and where the case is submitted on bill and answer, and no exceptions are filed to the latter, relief must be based on the admissions in the answer; and, if it denies or does not admit any averment that is material to the prayer for relief, the bill must fail. Wiegert v. Franck, 56 Mich. 200. The answer was not sworn to, and the rule must be followed that a sworn answer to a bill in equity must be taken as true where the case is heard on bill and answer. Ruhleg v. Wiegert, 49 Mich. 399.

It appears that in August, 1893, a petition was made by the requisite number of freeholders to the defendant, as commissioner of highways, to lay out and establish a highway. The land to be taken may be seen from the plat on following page.

The commissioner served the proper notice of hearing, and, before the day of hearing, a protest was filed with him. On the day of hearings the commissioner made his order, in dne form, for laying ont and establishing the highway. This bill is filed to enjoifi the defendant from opening the highway, or taking any farther proceedings therein, or from interfering with complainant in the possession of his premises, which are proposed to be taken. The bill avers that the original petition for the laying out of the highway was procured by the false representations of Munsell and Walters, for whose accommodation, it is claimed, the highway was to be established, in that they represented that the‘road was a public necessity, and was to be opened for the public benefit, but that the whole expense was to be paid by Walters and Munsell, and that the road was to be only .two rods wide, and that Walters and Munsell had no way of reaching their land except by this road, and had been forbidden to cross those lands. It is also alleged that this highway is not a public necessity, and that Walters and Munsell- had permission to cross other lands to get to their own, and purchased said land with full knowledge of the situation. It is also claimed that the only proceeding which they could of right take is for a private road to their lands, and in which proceeding they would be compelled to pay the whole expense, as the road to be laid out is a cul de sac.

The answer admits the proceedings to lay out the highway, and asserts—

“That, in pursuance of said application and notice, defendant found the said highway necessary, and did determine and did lay out and establish a highway, as described in said bill of complaint, and that said highway was and is a legal and valid public highway, under the laws of the State, and that all the proceedings for' the laying out thereof have been regular and according to the laws of the State; that the said highway is a public highway, under the laws of this State, and is for the benefit ■of not only the said William Walters and Henry J. Mun-sell, but for all the inhabitants of this State; and that the application therefor was for a public highway, as appears by said application, and not for a private way or road; and that the freeholders who signed said application for said highway did so for the express purpose of having a public highway laid out; and this defendant denies that any false or fraudulent representations were made to any ■of said petitioners for said highway, and denies that any ■of said freeholders were told that the said highway was to be a private road, and not a’ public highway. He denies that any false or fraudulent representations were made to said freeholders or to any one; and this defendant says that the said William Walters and Henry J. Munsell had no way of reaching their said premises, or either of them, by any road; that, as this defendant is informed and verily believes, they had been in the habit of crossing the fields •of other adjoining owners from the public highway for some time, but had acquired no right of way across any •of the lands to the said premises; that, as he is informed .and believes, soon before the laying out of the said highway, the said Henry J. Munsell and William Walters had 'been, each of them, forbidden to any longer cross the said ■premises of others to their said lands; and this defendant .avers that all the said questions as to the necessity of said public highway, and the necessity of establishing and laying out the same, came before this defendant at the time of the laying out of said highway, and were passed upon by him officially, as said highway commissioner, and that this defendant also considered -the protest that was presented to him at the time of the laying out of said highway, and that the complainant and others were given ■opportunity by this defendant to make such objections, jpresent such protests, and make such showing as was legal in the matter, before the final determination of this defendant, as said commissioner, to lay out and establish said highway; that in said proceeding this defendant, as ■said highway commissioner, determined the question of whether said highway was the -.best and most feasible one for a highway to said premises, and determined that it was."

This answer must be taken as true, — that the laying out of the highway was a .public necessity, and that no false representations were made in procuring it to be laid put. It is admitted by counsel for complainant that, under certain circumstances, a cul de sac might be considered a public highway; but it is said that no such circumstances exist here, as it is for the private use of Walters and Mun-sell only. The answer denies this, and asserts that it is a public necessity, and the commissioner has so found in his order. There is no statute or rule of law that expressly determines that, before a public highway can be laid out, it must have certain and definite termini in other public highways.

We think the case is settled upon the facts set up in the answer, which are conclusive upon us.

The decree of the court below must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


author: Grant, J.

text:
    Maria S. Whitaker et al. v. The Erie Shooting Club and Jay W. Keeney.

      Adverse possession — Marsh land.

    1. The requirements of an adverse possession necessary to establish title to real estate are well understood, but the difficulty arises in applying these requirements to the particular case, which, as a rule, must be controlled by its own facts and circumstances.
    2. The established rule of this Court is that “it is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question” (Murray v. Hudson, 65 Mich. 670, 673); that the occupation need not be such as to inform a passing stranger that some, one is asserting title; that if it be. such as to notify and warn the owner, should he visit the premises, that a person is in possession under a hostile claim, it is sufficient.
    3. Complainant’s ancestor, in 1837, purchased a piece of marsh land near one of the Great Lakes, which land was at times entirely submerged by the waters thereof. The principal use of which the land was capable, aside from cutting the hay growing around a sulphur spring thereon, was for hunting birds. The ancestor died in 1890. For ten years prior to his death, he lived within 40 miles of the land, but never ex-i ercised any acts of possession over the same. January 16, 1860, a tax deed was executed by the State for the taxes of 1857, and was recorded the same year, and thereafter the land was assessed to the grantees, who paid the taxes, and who were understood by all living in the neighborhood to be the owners of the land. In May, 1879, one of the grantees leased his half of the land to a shooting club. The lease was recorded in 1880. The lessee caused signs to be posted at various places around the land, upon which was painted a notice that the land belonged to the club, and that all trespassers would be prosecuted. At the expiration of this lease a similar one was executed by a grantee of the same lessor to another shooting club, and recorded. During the occupancy by these clubs, said signs were placed in position every spring, and taken up every fall, because the ice would carry them away. Watchmen were also employed during the shooting season to keep off trespassers. All of these acts of possession were continued from 1880 up to 1893, when complainants filed a bill to set aside said tax deed and the last-mentioned lease as a cloud upon their title. The lessor answered the bill, claiming title by adverse possession, and asking that his title be affirmed. And, in affirming a decree granting said affirmative relief, it is held:
    a — That, while it may well be conceded that paying taxes, or asserting title, or the common understanding in the neighborhood, or making surveys, or an occasional renting for trapping and shooting, was not sufficient to establish title by adverse possession, yet such acts were all competent evidence to be considered in determining the question.
    b — That the notices which were posted around the land from early in the spring till late in the fall, every year for 12 successive years, were notice of an adverse title and possession; that the owner, if he had visited the land, could not have failed to understand their meaning, as they were inconsistent with his rights as the original owner of the fee.
    Appeal from Monroe. (Kinne, J.)
    Argued October 4, 1894.
    Decided November 20, 1894.
    Bill to quiet title. Complainants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Willis Baldwin (Ira G. Humphrey, of counsel), for complainants. r

      Be Forest Paine, for defendant Erie Shooting Club.

      Ira R. Grosvenor, for defendant Keeney.
   Grant, J.

The complainant Maria S. Whitaker is the widow, .and the other complainants are the heirs at law, of Harry Whitaker, deceased, who died in June, 1890. Harry Whitaker purchased the land in question in 1837. The object of the bill is to remove a cloud from complainant’s title, caused by a tax deed made by the State of Michigan, January 16, 1860, to Elias W. Hedges and Andrew J. Keeney for the taxes of 1857, a deed from Andrew J. Keeney to Jay W. Keeney, dated August 14, 1889, and a lease executed by Jay W. Keeney to the Erie Shooting Club, August 28, 1889. The defendant Keeney answered, claiming title by adverse possession, and asking affirmative relief, affirming his title. The shooting club answered, admitting the execution of the lease and its incorporation, and leaving complainants to their proofs on their other allegations.

The Situation and Character of the Land:

The land is a piece of marsh situated in the south-east corner of Monroe county, about 120 rods from the mainland, on the west, and a mile from the sea wall of the shore of Lake Erie, on the east. Between it and the mainland is mud, which is at times covered with water. Upon it is a large sulphur spring. Around the spring the land is a little higher, and, on a few acres, grows hay-fit for use. At low water the land around this spring is from a foot and a half to two feet above the water. When the wind blows from Lake Erie the land is entirely submerged. The only way to reclaim it, so as to render it fit for cultivation, would be the erection of a dike around it, several feet high. The only use to which it can ever be put, aside from the cutting of the hay around the spring, is for hnnting birds, muskráts, and mink, but its principal use is for hunting birds.

Abandonment by Complainants’ Ancestor:

From 1837 to 1892 neither the complainants nor their ancestor exercised any act of possession. For 10 years prior to his death Harry Whitaker lived in Detroit, 40 miles distant.. Maria S. Whitaker testified on behalf of the complainants as follows:

“Q. Do you know what became .of his property?
"A. Well, it was overflowed. We had nothing to do with it.
“Q. What did you do with this spring lot?
“A. I don’t know as anything. We all supposed it went. We considered it all lost. We thought it wasn’t worth anything.
“Q. And you abandoned it?
“A. Yes.
“Q. You never paid any taxes on it?
“A. No, sir, I think not. I never knew any being paid.
“Q. When did you first know your husband left this property?
“A. I knew he bought it at the time, but, as I say, we had given it up. It was overflowed, and we supposed it was worth nothing. I don’t suppose he knew it was worth anything.”

Prior to 1860 the land was sold for taxes to various parties, who took no steps to obtain possession.

Defendants’ Connection with the Land:

Mr. Hedges and Andrew J. Keeney knew that Mr. Whitaker had abandoned the land at the time of the purchase of the tax title. Their tax deed was placed upon record January 30, I860. From that time to the present the taxes were assessed to and paid by them. Hedges and Keeney leased the right to trap upon the premises to various parties every year, some years receiving $4 or $5; some, $12 or $15; and other years receiving nothing. They also caused some willows to be planted near the spring, and occasionally cut hay. No other acts of actual possession are shown, except that they occasionally went to the land to look after it, as owners of land usually do. From 1860 to the commencement of this suit, it was understood by all living in the neighborhood that this was the property of Hedges and Keeney. On May 8, 1879, Andrew J. Keeney executed to the Bay Pointe Shooting Club a lease of the undivided half interest of the land, which interest is now the sole subject of controversy here, for the purpose of hunting a,nd shooting snipe, wilk fowls, and all other birds recognized as game by the laws of the State, and for all other purposes necessary and incident thereto, and for no other use or purpose. This lease was recorded November 15, 1880. This club immediately caused signs to be painted, and posted at various places around this land the following notice:

Lands of Bay Pointe Shooting Club. All Trespassers will be Prosecuted. [Signed]
“A. J. Keeney, President.”

At the termination of that lease, and on August 28, 1889, Jay W. Keeney executed a similar lease to the Brie Shooting Club, which was recorded • March 22, 1890. During the occupancy by these clubs, these signs were placed in position every spring, and taken up every fall, because the ice would carry them away. Watchmen were also employed to keep off trespassers during the shooting season. These acts of possession continued from 1880 to •the commencement of this suit, in 1893.

The requirements of an adverse possession- necessary to establish title to real estate are well understood. The difficulty arises in applying these requirements to each case as it arises. Each case, as a rule, must be controlled by its own facts and circumstances. The established rule of this Court is:

“ It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question." Murray v. Hudson, 65 Mich. 670, 673.

The occupation need not be such as to inform a passing stranger that some one is asserting title. If it be such as to notify and warn the owner, should he visit the premises, that a person is in possession under a hostile claim, it is sufficient. After long and intentional abandonment by the owner in this case, those under whom thé defendants claim obtained a tax deed from the State of Michigan. They immediately placed this on record. This, of itself, was a sufficient disseisin to support an action of ejectment by the original owner. Hoyt v. Southard, 58 Mich. 434. The defendant at once commenced to exercise such acts of possession and ownership as were consistent with the character of the land. Evidence of the general understanding in the neighborhood that he was the owner, and that it was called his, was held competent, as tending to establish the notoriety of defendant’s possession and claim of title. Sparrow v. Hovey, 44 Mich. 63. Pedes possessio is not indispensable. The land need not be fenced. Buildings are not necessary. Where the possession claimed was by cutting grass and pasturing cattle each year during the season, and planting trees, it was held to be evidence of a practically continuous, exclusive, and hostile possession. Sauers v. Giddings, 90 Mich. 50. Openly and notoriously claiming and using land in the only way it could be used” without fencing or cultivation was held to establish adverse possession. Curtis v. Campbell, 54 Mich. 340.- Cropping land, though no one was actually upon it, and nothing done thereon, between harvest and recropping, was held to establish adverse possession. Cook v. Clinton, 64 Mich. 309.

It may well be conceded that paying taxes, or asserting title, or the common understanding in the neighborhood, or making surveys, or an occasional renting for trapping and shooting, is not sufficient to establish title by adverse possession. But they are all competent evidence to be considered in determining the question. The notices which were posted around this land from early in the spring till late in the fall, every year for 12 successive years, were notice of an adverse title and possession. The owner, if he had visited it, could not have failed'to understand their meaning., They were inconsistent with the rights of the original owner of the fee. ' The land was then valuable for little else than shooting. Mr. Whitaker lived within 40. miles of this land for 10 years, with these open, notorious assertions of title and possession posted around the land from early in the spring till late in the fall. This substantially covered all the time during which this land could be used for any purpose except for hunting muskrats. The notice denied all right to use unless authorized by the club.

We need not discuss the question of possession prior to the lease of the Bay Pointe Shooting Club. Ten years’ adverse possession under the tax deed is sufficient.

The decree will be affirmed.

The other Justices concurred.


text:
    Levi K. Fuller et al. v. Andy Byrne.
    ' Conditional sale — Lien—Waiver.
    Where a contract for the sale of a piano provides that the instrument shall remain the property of the vendor until the purchase price and any judgment rendered thereon is paid in full, ' the vendor has the right to obtain such judgment, and the title to the piano will not pass until the judgment is paid.
    Error to Gogebic. (Haire, J.)
    Submitted on briefs October 4, 1894.
    Decided November 20, 1894.
    Replevin. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Button & Norris, for appellant.

      Chamberlain é Trumbull, for plaintiffs.
   Long, J.

Defendant is sheriff of Gogebic county, and levied an execution upon, and took into his possession,' a piano which he found in the possession of Carl Marquardt. The execution was against Marquardt, and the sheriff levied upon the property as belonging to him. The plaintiffs in this suit are piano dealers, and had delivered the piano in question to Marquardt under a conditional contract of sale, which contained the following stipulation:

“The said instrument is and shall remain the property of said Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is'paid in full.”

This action is replevin brought by plaintiffs against Byrne, and the property was taken under the writ. On the trial it appeared that the plaintiffs, before the sheriff levied his execution, had brought suit against Marquardt, and obtained personal judgment for the amount due on the contract. It was therefore contended that plaintiffs had relinquished their claim. The court below directed judgment in favor of plaintiffs for six cents damages and costs of suit.

The court below was correct in so finding. The plaintiffs and Marquardt had entered into a contract by which the title .to the property was to remain in the vendors until the “amounts, and interest thereon, and any judgment rendered thereon, is paid in full.” Under this contract the vendors had the right to obtain judgment against the vendee for the amount due, and interest thereon, and the title was not to pass until such ju.dgmen-t was paid. There is no intention shown here to release the lien or pass the title. The mere fact of personal judgment was not, under the contract, to release the lien or pass title, until judgment paid.. See Kirkwood v. Hoxie, 95 Mich. 66, and cases there cited.

Judgment is affirmed.

The other Justices concurred.


text:
    The Preston National Bank of Detroit v. The George T. Smith Middlings Purifier Company et al.
    [See 84 Mich. 864.]

      Assignment of accounts — Evidence—Estoppel—Receivers—Compensation.

    1. A corporation secured a bank by an assignment to it of $150,-000 of good and collectible accounts, then existing or thereafter to' be acquired. And it is held that parol proof is admissible to show in what sense the parties used the word “ accounts,” and what they understood to be included within it; and to this proof and the surrounding circumstances the court will look in determining said questions.
    2. The corporation had placed upon its books certain accounts for goods shipped to consignees, to be paid for when sold, charging the consignees upon shipment, and crediting them with payments and discounts'. The evidence disclosed that both the party who represented the corporation in making the assignment, and the cashier of the bank, understood and agreed that these accounts were included in the assignment. And it is held that, the corporation having treated these accounts as within the terms of the assignment, and obtained the loans from the bank, which the assignment was made to secure, upon the representation that said accounts were within the meaning of that term as used in the assignment, and the bank having relied upon that fact in making the loan, the corporation is estopped to assert the contrary.
    S. There also appeared upon the corporate books certain accounts for goods sold under special contract, and for which notes had been taken. The contracts provided that title to the property should remain in the company until paid for, and that any notes taken should not be considered as payment, but only as evidence of indebtedness, and should not constitute a waiver of the right to a mechanic’s lien. And it is held that said accounts were within the terms of the assignment.
    4. The bank filed a bill to enforce the assignment, and secured a decree for the collection of the accounts by the receivers of the corporation, and that the bank should have a lien upon the money thus collected. And it is held that, the expense of making such collections having been incurred under the express decree of the court, it is inequitable that the receivers should go without compensation, or that they should be paid out of funds which should go to unsecured creditors, and that they are entitled to compensation for their services out of the funds belonging to the bank which they have collected.
    Appeal from Wayne. (Hosmer, J.)
    Argued October 9 and 10, 1894.
    Decided November 20, 1894.
    Petition by complainant to compel the payment of certain moneys claimed under a prior decree. Complainant .appeals.
    Decree reversed, and one entered in this Court in accordance with the opinion.
    The facts are stated in the opinion, and in 84 Mich. 364.

      Julian 0. Dickinson (John D. Oonely and Alfred Russell, of counsel), for complainant.

      Ihomas A. Wilson (Fdtvin F. Oonely, of counsel), for defendants.
   Grant, J.

The assignment and facts out of which this controversy has arisen will be found in 84 Mich. 364. Under that decision a decree was entered giving the complainant “a lien upon all moneys collected by the said defendants Emerson and Eldred, as assignees and as receivers, upon said accounts, and upon all notes, bills receivable, lands, goods, chattels, and other things taken in compromise, satisfaction, or partial or complete discharge .or payment of said accounts. The receivers proceeded under this decree to collect the various accounts and debts due to the purifier company. In keeping their accounts, and in their report to the court, the receivers entered and kept the amounts received in several classes, marked, respectively, Schedules A, B, O, D, E, F, G, and H.

Schedule A is entered as—

“Accounts appearing on the books of the George T. Smith Middlings Purifier Company, January 14, 1890, which were for merchandise sold, upon which the whole or a part has been received by B. H. Emerson and Z. • C. Eldred, receivers.”
“B”: “Accounts appearing on the books of the company for which notes had been given, and which notes were overdue and unpaid at the time of the assignment (January 14, 1890), upon which the whole or a part has been received by the receivers.”
“O”; “Accounts appearing on the books of said company, January 14, 1890, which were for mill ..contracts incomplete at date of assignment, upon which the whole or a part has been received by the receivers.”
“D”: “Accounts appearing on the books of said com-. pany which were for merchandise in the hands of other parties on sale for the benefit of said company, upon which the whole or a part has been received by the receivers,"
“E”: This is the same as Schedule A, excepting that nothing has been received upon the accounts.
“F": This is similar to “B," but nothing has been paid upon the notes which had been given, and were overdue and unpaid at the time of the assignment.
“G": “Accounts which were for mill contracts which were incomplete at date of assignment."
“H": This is similar to “D," but nothing has been paid upon the accounts.

It is conceded that the accounts marked Schedules A and E come within the terms of the assignment to complainant. The receivers contended that the other accounts were not within its terms, and refused to pay them over to the complainant, whereupon it filed this petition to compel such payment. Issue was joined, proofs taken, and the court below entered a decree sustaining the contention of the receivers.

For the sake of convenience, we may group the disputed accounts under two heads, viz., special-contract accounts and consignment accounts.

These special contracts were written, and provided that the company agreed to deliver to each vendee the machinery and materials for a flouring mill, and to put them in the mill. The vendee agreed t9 pay a certain amount upon the execution of the contract, another when the machinery was ready to ship, another during the construction of the mill, another when the mill was ready to start, and the remainder was to be evidenced by executing and delivering to the company negotiable promissory notes, which were to be secured by a first mortgage upon the premises. It was further agreed that, the title to the machines, machinery, and material should remain in the said company until fully paid for, and that if notes were given they should not be considered as payment, but only as evidence of indebtedness. It was further provided that the taking of such notes, or security therefor, should not waive the right of the company to a mechanic’s lien. The notes did not pay these accounts, and they were still as valid, as accounts, as they would have been had no notes been given. The retention of the title to the goods as security for the payment of the purchase price did not operate to change the character of the accounts. If the accounts had all been of this kind it would be unreasonable to hold that the assignment conveyed nothing, yet such would be the logical conclusion of the defendants’ contention. Such construction would have enabled the company to defeat the security altogether by making such arrangements with its customers after it was given.

The consignment accounts were also evidenced by written contracts. The goods were shipped to consignees, to be paid for when sold. The prices were fixed, the consignees had the entire charge and control over the goods, paid their own storage and other expenses, and were to render a quarterly account of the goods sold. Of this latter class was an account against W. It. Dell & Son, of London, England, who had the entire charge of the business upon the continent of Europe, amounting to over $29,000 at the time of the assignment. All these accounts appeared upon the books of the company, and were all kept in the same manner. Dell & Son were charged upon the books with goods sold, and were credited with payments and discounts allowed them.

It is contended by counsel for the receivers that the contract of assignment covers only such accounts as were collectible, viz., such accounts as could be sued upon and judgment obtained by the production in evidence of the books; such as had become a positive obligation against the debtor, where there was an unconditional liability on the part of the debtor to pay. If the word “account” had an inflexible technical meaning, and that were the one contended for, there would be force in this contention. But it has not. Webster defines it to mean—

“A registry of pecuniary transactions; a written or printed statement of business dealings, or debts and credits, and also of other things subjected to a reckoning or review.”

Bouvier defines it as—

“A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation,” and cites the authorities for his definition.

Parol proof is therefore admissible to show in what sense the parties used it. and what they understood to be included within it. To this-proof and the surrounding circumstances the court will look to ascertain the intention of the parties and determine in what sense they use words of flexible meaning.

It is clearly established by the evidence that Mr. Smith, who represented the company, and Mr. Hayes, the cashier of the bank, understood and agreed that these accounts were included in the assignment. Smith, in order to obtain large loans at the bank, included in his representations the accounts now in dispute, and referred to these foreign accounts, and particularly to those of Dell & Son and of one Tyson, who had a large account in Australia. Complainant wrote to ascertain the financial standing of Tyson. Dell & Son were not ordinary agents for the sale of goods for their employer. But we are not required to interpret the contract between them and the company. It is enough to say that the company placed these upon its books as accounts, treated them as accounts within the terms of the contract, obtained the loans upon the representation and reliance' that they were, and- that both it and its" assignee^ are thereby estopped to assert the contrary. The receivers have no rights either at law or in equity which the purifier company did -not have, and they can make no defense in this suit which the company could not make were it the sole party.

It is also contended that the receivers are not entitled to compensation for their services out of the funds belonging to complainant which they have collected. We think otherwise. The expense incurred in collecting has been done under the express decree of this Court, and it is inequitable that the receivers should go without compensation, or that they should be paid out of funds which should go to unsecured creditors.

The decree is reversed, and decree entered in this Court in accordance with the above opinion, with the costs of both courts to the complainant.

The other Justices concurred.


text:
    The Reeder Bros. Shoe Company v. Anton Prylinski.

      Fraudulent purchase — Rescission—Right of assignee.

    1. The right to recover property, the title to which never passed by reason of the fraudulent representations of the purchaser as to his financial condition, passes to an assignee of the vendor’s business and book accounts.
    2. The failure of a vendee, who knows that he is in failing circumstances or insolvent, to disclose that fact to a vendor, will not make the purchase fraudulent, unless coupled with an intent on his part, at the time of the purchase, not to pay for the goods; citing Zucker v. Karpeles, 88 Mich. 413.'

      Error to Bay. (Maxwell, J.)
    Argued October 5, 1894.
    Decided November 20, 1894.
    Replevin. Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Simonson, Gillett & Gourtright, for appellant.

      Peter Doran (T. A. E. <& J. G. Weadoclc, of counsel), for plaintiff.
   Long, J.

Plaintiff, a corporation, brought replevin, and -took into its possession a stock of boots and shoes sold by George H. Reeder & Co. to defendant. The goods were ■sold in January, 1893, to be delivered at various times, and most of them were delivered before the plaintiff corporation was organized. George H. Reeder & Go. consisted ■of George H. and Milton Reeder The plaintiff corporation was organized on March 15, 1893, the stockholders being the two Reeders and six other persons, George H. Reeder & Co. thereupon sold and conveyed their business to the corporation, together with their book accounts.

Defendant had been trading with George H. Reeder & Go. since May, 1892, and discounted the firm's bills up to the time the goods in controversy were sold; the last bill ■discounted being sold' in September, 1892. At that time, plaintiff claims, the defendant made a statement to Milton Reeder as to his financial condition, in which he claimed to own the stock of goods in his store, amounting to $3,500 ■or $4,000; that he owed no persons but Baldwin & Go., of Detroit, and Snedicor & Hathaway, and those were small bills, not due; that he owned the building in which he was doing business, and the residence where he lived. On these representations the bill of September, 1892, was sold, ■amounting to about $130. In January, 1893, Geo. H. Reeder & Co. gave him credit for a bill of goods of about-$650; lie at that time stating that his financial condition was about the same, and that there had been no change therein since September before.

In June, 1893, after the assignment to the plaintiff corporation of this account, it was discovered that the representations made by the defendant in January previous were not true; that, instead of the title to the store and house being in him, it was in his wife; and that he owed her about $1,800 in addition. Plaintiff, claiming that, by reason of these false representations, the title to the goods did not pass to the defendant under the sale made by George H. Eeeder & Co., and that the corporation had the right, under its assignment of the account, to assert its ownership to the goods, made demand for their return, and, upon the demand being refused, took them under its writ of replevin.

Defendant, on the trial, admitted that the buildings belonged to his wife, and that he was indebted to her, but denied that such fact affected his solvency, or that he made the representations as to his financial condition as claimed. It appeared that chattel mortgages were given by defendant to his Detroit creditors in July, 1893, after the goods in controversy were replevied. On the trial the plaintiff prevailed.

1. It is contended by defendant that plaintiff could not recover, for the reason that, if the representations were made as claimed, they were made to George H. Eeeder & Co., and not to plaintiff, and that only the party injured by the fraud could complain of it; that the transaction is voidable only by the party injured, and not by a stranger. Several cases are cited in support of this proposition. But those cases are not like the present. Similar cases were referred to in Sweet v. Converse, 88 Mich. 1, 12, in which it was said:

“ All of the cases cited concede that the rule contended for — that a right of action for fraud is not assignable— has po application to an assignment of something which is in itself tangible, capable of delivery, involving a right of property. In such case, the right to whatever remedy the assignor has follows the ¿ssignment.”

The action here is not for fraud and deceit, but to recover the property, on the ground that the title never passed. The assignee is in the same position as the assignor of the demand, with like rights of recovery. It was not an assignment of a right of action for the fraud, but the right of the assignor to recover the specific property.

2. It is contended that the court erred in its charge to the jury on the question as to what would amount to fraudulent conduct on the part of the defendant, and by reason of which the title to the goods did not pass. The following is a portion of the charge complained of:

“If a fraud is practiced, the title never passes. The buyer never had them [the goods], or - any interest in them. They were all still the property of the plaintiff. Now, this is not only so if these representations were false and were actually made, but it is also so if the defendant was in failing circumstances when he ordered these goods, and did not disclose these facts to the plaintiff. I repeat, gentlemen, in addition to the right to cancel this contract on the ground of false representations, a concealment of the actual facts of his circumstances may be a fraud. Now, if he was insolvent, and did not inform the plaintiff in this suit of it, the plaintiff had a right to retake' these goods, and can recover in this action. If he was in failing circumstances when he bought these goods, and did not disclose that fact, the plaintiff had a right, on discovering the facts, to rescind the contract and save the goods. In these cases the title to’the property never vests in the defendant If a man is in a store, apparently doing good business, but in failing circumstances, or absolutely insolvent, a sale to him is void or voidable, unless he communicates the true circumstances to the parties from whom he purchases. Now, if you find either of these three facts, — that the fraudulent representations were made, that he was in failing circumstances, or that he was insolvent,-^ you will find a verdict for the plaintiff. * * *
“If you find that the representations were made, or that he was in failing circumstances, and did not disclose it, or that he was insolvent, and did not disclose his condition, you will find for the plaintiff. If, on the other hand, you find all these things — First, that the representations were not made; second, that he was not in failing circumstances, or did disclose his failing circumstances; third, that he was not insolvent, but in a condition to pay, — you will find for the defendant.”

This charge does not embody the law of this State, as held by several decisions of. this Court. In Zucker v. Karpeles, 88 Mich. 413, 433, the court below instructed the jury:

“If Karpeles was insolvent at the time he purchased the goods, and knew that he was insolvent, and failed to disclose this to the plaintiffs in the case at the time of the purchase, the purchase, under those circumstances, is .deemed in law a fraudulent purchase.”

It was said by this Court:

'“We think the court erred in this instruction. There are some authorities which support the view of the law stated by the court, but the weight of authority is the other way, — that it does not render a purchase fraudulent simply from the fact that the purchaser knew at the time that he was insolvent, and failed to disclose that fact to his vendor. It is necessary, in order to make his purchase fraudulent, that he should, at the time he purchased the goods, intend not to pay for them;” citing Shipman v. Seymour, 40 Mich. 274.

It is claimed, however, on the part of plaintiff, that some other portions of the charge modified this portion, and placed the right to recover«on the true ground. We have examined the charge as a whole, and cannot find that the views expressed' in this part of the charge are in anyway modified. The court was clearly wrong.

The judgment below must be reversed, and a new trial granted.

McGrath, O. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.

        Crane v. Reeder, 25 Mich. 303; Spoon v. Gilbert, 44 Id. 535; Dayton v. Fargo, 45 Id. 153; Richardson v. Welch, 47 Id. 309; Lumber Co. v. Gustin, 54 Id. 624; Lewis v. Rice, 61 Id. 97; Waterbury v. Andrews, 67 Id. 281.


author: Hooker, J.

text:
    Lincoln S. Rogers and Charles H. Thorpe v. Albert H. Raynor and John Taylor.

      Partnership — Exemptions—Waiver— Common-law lien — Parties— Misjoinder.

    1. Copartners cannot join in an action of trover for their individual exemptions in the partnership property.
    2. Where partners in a venture involving the publication and sale of a book deliver the paper and electrotype plates to contractors, who are to do the press work and binding, they waive their’individual exemptions, and subject the books to the lien of the contractors for their labor.
    Error to Wayne. (Donovan, J.)
    Submitted on briefs October 10, 1894.
    Decided November 20, 1894.
    Trover. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      Henry M. Duffield, for appellants.

      Sloman, Moore é Dnffie (Sloman, Groesbeck & Robinson, ■of counsel), for plaintiffs.
   Hooker, J.

The plaintiffs were partners in a venture involving the publication and sale of a book. It was the principal business of Thorpe, but not of Rogers. In furtherance of their venture, they delivered to Kaynor & Taylor, copartners, a quantity of paper and electrotype plates, under a contract by which they were to do the press work for $300. Subsequently, this contract was modified so as to include the binding of the books. Raynor & Taylor performed the labor, and delivered upwards of 5,000 of the books, but retained about 500 finished volumes and some unbound sheets, and about 5 reams of the paper furnished. At this juncture, Raynor & Taylor commenced an action against the plaintiffs for the recovery of a balance of the contract price, and attached the property in their hands. Judgment being rendered in .their favor for $145.62 damages and $10 costs, the property attached was sold upon execution; and the plaintiffs brought trover against Raynor & Taylor, and recovered a judgment of $250. There was evidence tending to show that the property was worth $500. This recovery was had upon the theory that plaintiff Thorpe was entitled to exemptions from the property sold.

Counsel for the appellants asserts:

1. That the plaintiffs could not properly join in an action of trover for their individual exemptions.
2. That, under the undisputed evidence, Rogers was entitled to no exemptions from this property, and was therefore an improper party to the action.
3. That the judgment recovered by defendants was for the purchase price of the property, and that such property was therefore subject to execution therefor.
4. That appellants had at least a lien upon the property for their labor, as against which no exemptions could be claimed.

It is plain that the property levied upon and sold was subject to the levy so far as any rights growing out of the partnership are concerned; and, if Rogers had no right to exemption, he has no cause of action against the appellants, for they have invaded no legal right of his. It is equally clear that he has no right to complain of their denial of Thorpe’s right to exemptions, for he has no interest in the property, all of his interest, having passed to the appellants by the sale. One who has no interest in or right to the property is not a proper party to an action at law for its recovery, and parties who have no joint interest cannot join as parties plaintiff. While it is true that in the case of Skinner v. Shannon, 44 Mich. 86, several partners recovered their exemptions in a joint action of trover, the question of misjoinder appears not to have been raised. In the case of McCoy v. Brennan, 61 Mich. 362, it is expressly held that copartners of one bringing trover for exemptions are not necessary parties, and the obvious fact that the right to exemption is individual is asserted. See, also, Russell v. Lennon, 39 Wis. 570. We think the misjoinder is plain, and it is well settled that a misjoinder of plaintiffs is fatal. 1 Saund. PI. & Ev. 11.

By attaching this property, the appellants have shown that they considered this property to be owned by the plaintiffs. As such, they put' labor upon and other material with it, and had a lien upon it as against the firm, and have proceeded to avail themselves of it by judgment and execution. Unless it can be said that the lien must give way to the exemption, they obtained a valid title by the purchase, so far as appears from the record. If this property is to be held to be exempt, it must be under the eighth subdivision of the statute. How. Stat. § 7686. Together with a large quantity of similar property, it was delivered to the appellants for the purpose mentioned. Before it was to be used for the purposes of trade, appellant’s labor upon it was necessary. Under well-settled rules of law, a lien attached for this labor, and there is no reason for supposing that it was not so understood and intended. Indeed, the record shows that the labor was to be paid for when the books were delivered. If an intention to create a lien was necessary, this testimony implies it, and there is nothing to contradict it. By the provisions of the ninth subdivision of section 7686 of Howell’s Statutes, certain liens upon exempt property are void; but the property mentioned in the eighth subdivision, under which this property is claimed to be exempt, is expressly excepted. We think that, when the plaintiffs made this contract with appellants, they waived their exemptions, and subjected the property to the lien of appellants for their labor. '

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

The other Justices concurred. ■


text:
    Cecilia Thompson et al. v. Felicia Marley et al.

      Trust — Statute of frauds — Parol agreement — Pleading—Resulting trust.

    A daughter, by means of fraud and undue influence, procured from her father a deed of his real estate upon the understanding that she should hold the lands in trust, and after his death distribute them among all of his heirs at law according to the statute of descent. The deed was not recorded, and the father afterwards conveyed portions of the land, and the daughter witnessed and took his acknowledgment to the conveyances. About 15 months after the execution of the first deed, the daughter procured from her father a second deed of the same lands, and caused the same to be recorded, and thereupon claimed, under said last-mentioned deed, to own said lands in fee, and denied that the first-mentioned deed was ever executed and delivered to her. After the father’s death, a bill was filed by a portion of the heirs at law, setting forth the foregoing facts, and praying for the setting aside of the second deed, and the execution of the trust created by the first deed. The bill did not allege that there was any fraud practiced in procuring the second deed, or that any trust was connected therewith, unless an allegation that the defendants were in possession of all of the lands, and that the same were held in trust by said daughter for all-of the parties to the suit as tenants in' common, amounted to such an allegation. The defendants demurred generally. On the argument of the demurrer, the court, noticing that it was not alleged in the bill whether the trust was by parol or in writing, inquired of the complainants’ solicitor whether there was any written declaration of the trust, and was informed that there was none. This fact was further evidenced by the framework of the bill, and the court found accordingly, and sustained the demurrer upon the following grounds, which are approved on appeal:
    a — That a parol trust, such as is set forth and claimed in the bill, is void, and cannot be declared and enforced by a court of equity.
    b — That the fact that the complainants were the children of the grantor did not of itself create in them an equitable beneficial interest in said lands at the time of the execution of the first deed.
    c — That, if there was any equitable beneficial interest existing in the complainants at the time of the execution of the first deed, it was by virtue of the parol understanding and declaration of trust, which must be resorted to by them for the purpose of determining said trust and who are the beneficiaries under its terms; that, if such parol understanding was void for the purpose of declaring the trust and making it enforceable, it would be equally void for the purpose of establishing a beneficial interest in the complainants.
    d — That, while no resulting trust arose in favor “of complainants, still, in view of the fact of the father being in possession of the land when he executed the first deed, and continuing in possession until his death, and of said deed having been procured by undue influence, with the intent not to carry it into effect, the parol agreement, made at the same time, was such a fraud as vested in the father an equitable title to the lands; that he might have filed a bill at any time to set aside said deed for the reason stated, and, if he had died with the lands in that situation, his rights in the premises would have devolved upon his heirs or personal representatives.
    e — That, there being no allegation in the bill setting up any fraud against the second deed, or that there was any trust or intended trust connected with it, — the general allegation in that regard, above set forth, being insufficient for that purpose, — said second deed, under the pleadings in the case, must be construed as vesting an absolute title in fee in said daughter.

      Appeal from Mackinac. (Adams, J.)
    Argued October 10, 1894.
    Decided November 20, 1894.
    Bill to set aside a deed, and to declare a trust under a prior deed. Complainants appeal.
    Decree dismissing bill affirmed.
    The facts are stated in the opinion.

      Janies McNamara, for complainants.

      Henry Hoffman, for defendants.'

       For analogous cases, see Shafter v. Huntington, 53 Mich. 310, and authorities there cited.

   Long, J.

This cause was heard below on bill and general demurrer, and the demurrer there sustained, and bill dismissed.

The bill alleges, substantially, that all the parties to the cause are the children and heirs at law of Michael Marley, deceased, who died June 22, 1893; that on September 15, 1891, Michael Marley conveyed the premises in controversy here to his daughter Felicia Marley, by warranty deed, without any consideration, and with the understanding that said property should be held in trust by her, to be distributed after his death between herself and the other children and heirs at law of said Michael Marley, in proportion to their just shares as provided by law; that said 'Felicia acquiesced in said understanding with her father, and, the more fully to carry out the same, the said deed was not placed on record, so that sales could be made of portions of the land in the name of Michael in his lifetime; that such' sales were made, and Felicia took the acknowledgment of such conveyances, and witnessed the same, during the lifetime of her father. It is claimed that this deed was procured by fraud and undue influence. It is further alleged that on December 13, 1892, Felicia procured another deed of warranty from her father, and caused the same to be recorded, and now claims the entire fee to the premises under said last-mentioned deed, and wholly denies that said first-mentioned deed was ever made, executed, and delivered to her. The bill does not set up any fraud in procuring this last deed, or claim that there was any trust connected with the giving of it. The bill prays that this second deed be set aside, and the trust created by the first deed be executed.

Upon the hearing in the court below, the learned circuit judge filed a written opinion, from which we quote with approval as follows:

“It will be observed that the bill does not allege, in terms, whether the trust claimed with reference to the first deed was by parol, or declared by some instrument in writing. The court, however, on the argument of the •demurrer, noticing that fact, i. e., that it was not alleged whether the trust was by parol or in writing, inquired of the complainants’ solicitor whether there was any written •declaration of the trust, and was informed by him that there was none; and from the framework of the bill, as well as by the statement made bycomplainants’ solicitor, the court is satisfied that there, was no written declaration ■of the trust claimed with reference to the deed of September 15, 1891, and, if there was a trust by the understanding of the parties, that it was a parol trust, and not one •declared in writing.
“The question arises whether, considering it as a parol trust, and not in writing, it could be established, decreed, and enforced by this court. The statute provides that all •express trusts shall be in writing, and in section 5573, which defines the purposes for which an express trust may be created, provides in the fifth paragraph that, where the trust is for the beneficial interest of any person or persons, such trust shall be fully expressed and clearly defined •upon the face of the instrument creating it.
“ The decisions in this State and elsewhere are numerous to the effect that an express trust cannot be raised by parol'. Wright v. King, Har. Ch. 12, 17; Bernard v. Bougard, Id. 143; Brown v. Bronson, 35 Mich. 418. It •does not seem necessary further to pursue the inquiry as to whether a parol trust, such as that set forth and claimed in the bill of complaint (if it is to be treated as a parol trust), could be declared and enforced by a decree of this court; but, looking at it in that way, it must be declared void.
“In Randall v. Constans, 33 Minn. 329 (23 N. W. Rep. 530, 531), it was held that, where it does not appear by any averment in the bill of complaint whether the agreement or declaration of trust was in writing or by parol, it will be presumed by the court that the agreement referred to was in writing, and valid within the requirements of the statute of frauds; and the court refers, as authorities upon that proposition, to the cases of Wentworth v. Wentworth, 2 Minn. 277; Cozine v. Graham, 2 Paige, 178; Reed, Stat. Frauds, § 505; Hill, Trustees, 93. In this case the court places its finding that it may be presumed to be in writing in such a case upon the fact that there were no admissions on the subject upon the argument; but in the case at bar it has been distinctly admitted by complainants’ counsel, on the argument, that there was no written declaration of the trust. The principle decided in Randall v. Oonstans could not be made to apply, and- the trust, if there was any such an understanding as alleged in the bill of complaint, must be held to be by parol, and therefore void under the statute of frauds.
“The next question that arises is whether, if the deed of September 15, 1891, was procured, as alleged in the bill, by undue influence, by a scheme on the part of defendant Marley and those who assisted her, and with the understanding that it was for the use and benefit of all the other heirs of Michael Marley, and she would distribute the land between the heirs, as alleged in the bill of complaint (and the demurrer is an admission of this allegation), there was a resulting trust, or implied trust, growing out of these facts.
“In the case of Randall v. Constans, the subject is pretty fully considered, and authorities are collated and discussed; and the court holds that where there is fraud or artifice in procuring title to property, or the same is wrongfully taken or retained in his own name by one occupying a fiduciary relation, a trust results in favor of the party equitably entitled, cand, generally, where the legal title is obtained by fraud, equity turns the fraudulent procurer into á trustee in order to get at him;’ that in such a case it is not the parol agreement upon which the court acts, but the fraud, which gives the court jurisdiction to determine the appropriate relief. The court further says that—
“ ‘ It may be stated as a general rule that where the grantor parts with property on the faith of the promise of the grantee to hold it as security, or to fulfill a trust concerning it, equity will not permit such grantee to retain the- property in violation of his agreement, but will compel him to restore it, or its value, or the proceeds thereof, and in proper cases may enforce it, if partly performed, and justice could not otherwise be done in the premises.’
“Upon this proposition the court refers to a number of leading cases, which are well considered, and would go to the extent of establishing that doctrine. In this case the court further says:
“ ‘It is not material that the legal title passed to the grantee from a third party, who held the title as trustee for the equitable owner, the transaction being for the benefit of the latter. Such transfers, whatever the particular form, when made to secure a debt or advances, are usually construed to be in the nature of mortgages, and upon that basis adequate relief can ordinarily be administered.’
“The court refers, by way of illustration, to Siemon v. Schurck, 29 N. Y. 598, where a deed was taken in the name of a third party without the knowledge or consent of the person who furnished the consideration, and on that ground it was held that a trust resulted in her favor, which the court might enforce; but, as appears by the subsequent language of the court, that was mainly on the ground that the person last mentioned had an equitable beneficial interest in the property at the time of the conveyance, and the court holds that- the mere fact of said person furnishing the consideration would not raise a trust in the nature of a resulting trust in favor of such person unless there was fraud in the transaction. This appears to be the plain meaning of sections 5569, 5571, How. Stat.
“It will be observed that the bill in this case does not allege any existing beneficial intefest in the complainants at the time of the execution of the deed of September 15, 1891. They are alleged to be the children of Michael Marley, but that fact of itself does not create an equitable beneficial interest in such children in the lands of ‘their father existing at that time.
“If there was any equitable beneficial interest existing at that time in the complainants, it was by virtue of the parol understanding and declaration of trust, and the parol understanding must be resorted to by them for the purpose of determining the trust and the parties having a beneficial interest under the terms of the trust; and, if the parol understanding was void for the purpose of declaring the trust and making it enforceable, it would be equally void for the purpose of establishing a beneficial interest in the complainants.
Then, if it be true that there was such a parol understanding as alleged in the bill, that the deed was obtained by undue influence and methods stated in the bill, and by reason thereof a resulting trust arises, it would arise in favor of the grantor in the deed, who had been deceived (Michael Marley), as at that time he was the only party who had a subsisting beneficial interest in the lands. In the case of Randall v. Constans, the court says:
“ ‘ While a parol agreement to execute a trust cannot be enforced, and a mere refusal to perform a contract is not in itself a fraud, yet, where property has been conveyed in reliance upon its fulfillment, equity will not permit a party to retain the property and refuse to perform the agreement, and thereby consummate a fraud upon the opposite party by so retaining it without consideration, and in violation of his agreement.’
It seems to me from these considerations, upon the statement of facts upon the bill of complaint and the admissions of the demurrer, Michael Marley being in possession of this land, and continuing in possession until his death, and the deed of September 15, 1891, having been procured from him by undue influence, and with the intent not to carry it into effect, that the parol agreement made at the same time was such a fraud as vested in Michael Marley an equitable title to these lands. He was in possession, and might have filed his bill at any time to set aside that deed for the reason stated. If he had died with the property in that situation, his rights in the premises would have devolved upon his heirs or personal representatives; but such was not the case, and 'on the 13th of December, 1892, he executed a warranty deed to his daughter of the same premises, acknowledged it, delivered it, and it was put upon record. This was about six months prior to his death. During that time Felicia Marley appears, from the bill, to have been in possession of the property, and still in possession.
As before stated, there is no allegation in the bill setting up any fraud against the second deed, or that there was any trust or intended trust connected with it, unless the allegation in the tenth paragraph of the bill, that the same [lands] are all held in trust by said Felicia Marley for all the parties to this suit, as tenants in common/ could.be so construed. I do not'think, however, that that is a sufficient allegation of the agreement by which the trust is claimed to have' been created, and of the fraud, if any existed, as against the deed of December 13, 1892, and, so far as I can see, that deed, under the pleadings in this ease, must be construed as vesting an absolute title in fee in Felicia Marley.”

We concur fully in the views of the circuit judge as above expressed. The case is plainly distinguishable from Bigelow v. Sanford, 98 Mich. 657. In that case, as in Randall v. Constans, 33 Minn. 329, cited by the learned circuit judge, it did not appear by the bill whether the declaration of trust was in writing or by parol; and it was held that, where a party offers to show an agreement, it is to be presumed that he proposes ~to prove all that is requisite to make the agreement- sufficient in law. In the present case it was expressly admitted by counsel, on the hearing* that the trust rested in parol. Upon this admission the court below acted, and properly held that it was void.

The decree below dismissing the bill must be affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    Moses Duquette v. Thomas Richar.

      Payment — Attorney and client — Assumpsit—Defenses.
    1. The delivery by a vendee to the attorney for the vendor, in his presence, of a certificate of deposit indorsed in blank, as part payment on a land contract, is the same as delivery to the vendor. .

      2. In an action to recover money paid on a land contract which the defendant refused to carry out, it is no defense that the payment was made by a certificate of deposit owned by the plaintiff’s wife, it appearing that she indorsed the certificate in blank, and loaned it to the plaintiff, and that the defendant received it as a payment from him.
    Error to Muskegon. (Russell, J.)
    Argued October 11, 1894.
    Decided November 20, 1894.
    Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Turner, Turner & Turner, for appellant.

      Nelson DeLong, for plaintiff.
   Grant, J.

Plaintiff, by direction of the court, recovered a verdict and judgment for $300 claimed to have been paid by him to the defendant as the first and part payment on a parol contract for the purchase of land, which the defendant refused to carry out.

1. The payment was made by a certificate of deposit in a bank, which certificate was owned by plaintiff’s wife. Defendant and his attorney, plaintiff and his wife, and one Bassett were present when the payment was made. The wife indorsed the certificate, and handed it to Bassett, who delivered it to the defendant’s attorney. The certificate was presented to the bank and paid, but it does not appear by whom it was presented for payment. It was produced upon the trial by the bank. It is claimed that there was no evidence to connect the defendant with the certificate, or to show that he received the money. The delivery to his attorney was the same as delivery to him, and justified the instruction given.

It is further insisted that the certificate was the property of the wife, and that, therefore, the plaintiff cannot maintain the suit. The testimony, however, is ample to show that she in fact loaned the money to her husband, and paid it for him. The defendant received it as a-payment from him. The arrangement between him and her did not concern the defendant.

2. After plaintiff had testified on cross-examination that it was not agreed between him and defendant that, if he was not in on the following Monday by the time the bank closed, he was to forfeit the §300, the defendant’s counsel asked him if his own attorney did not inform him that this was the defendant’s claim. The testimony was properly excluded. What either party claimed to the other after the controversy had arisen had no tendency to prove what the agreement was.

Judgment affirmed.

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


author: McGrath, C. J.

text:
    Gustav Fetters v. William F. Atkinson et al.
    [See 79 Mich. 575; 88 Id. 412.]

      Trust — Accounting—Costs.
    A trustee, to -whom a chattel mortgage had been executed to secure certain of the mortgagor’s creditors, took in payment for a portion of the mortgaged property, which he had sold to certain of the beneficiaries, their promissory note. He after-wards turned out the note to an unsecured creditor, who had recovered a judgment for less than the amount of the note against the trustee as garnishee of the mortgagor, under an agreement that the avails of the note should be applied, so far as necessary, in satisfaction of said judgment. The note was sued in the name of the trustee, a judgment recovered, and the amount thereof paid into court, whereupon one of the makers filed a bill for an accounting, and to protect his interest in the surplus. And it is held that the unsecured creditor, to whom the note was turned out, had the right to take out of the proceeds of the judgment rendered thereon the costs and expenses, including attorney fees incurred in collecting said note. j
    Appeal from Wayne. (Lillibridge, J.)
    Argued October 10, 3894.
    Decided November 20, 1894.
    Bill for an accounting. Complainant appeals.
    Decree dismissing bill as to defendant Swift affirmed.
    jThe facts are stated in the opinion, and in 79 Mich. 575, and 83 Id. 412.

      William Look and Ira G. Humphrey (Edwin F. Conely and Orla B. Taylor, of counsel), for complainant.

      Charles M. Swift, defendant in pro. per.

   McGrath, C. J.

This proceeding grows out of Atkinson v. Weidner, 79 Mich. 575, 83 Id. 412. Complainant was one of the defendants in that suit, and now seeks to restrain the appropriation of the surplus remaining after* the satisfaction of the Booss & Co. judgment. Defendant Swift was the attorney for Booss & Co., and he alone answers, setting up that—

“The defendant Atkinson, as the legal owner of the demand note hereinbefore referred to, had a right to collect the same, and to authorize this defendant to collect the same, and had a right to agree with this defendant to pay him ■ for his services in the collection thereof, and, without express agreement, would be liable to pay therefor; and this defendant avers that, when he received said note from said Atkinson, it was understood and agreed between this defendant and said Atkinson that said note was. in no sense received as payment or part payment of said claim of Booss & Co., but was to be sued for and in the name of Atkinson, and the avails applied on the claim of Booss & Co.
“ There was no express agreement as to the payment of this defendant for his services, but defendant insists that there was an implied agreement and liability on Atkinson’s part to pay him the value of ' such services, and to reimburse him for his advances. This implied liability has been since recognized by said Atkinson, who has agreed that the said services of said defendant and the services of counsel employed by him are worth the sum of $1,800, and he recognized the defendant’s lien for that amount, and 'has authorized him to retain that sum from the amount of such judgment, and apply the balance on the Booss judgment.”

The makers of the note refused to pay the same, or any part thereof, and an expensive litigation became necessary. It is clear that, if Atkinson had brought the suit in the course of the execution of the trust, he would haye been entitled, in an accounting, to a credit for services, and the costs and expenses of that litigation. If the makers of the note had paid the amount of the Booss & Co. judgment upon the note, the conduct of the trustee, and complainant’s equities growing out of that conduct, and the other circumstances, would have been proper matters, for consideration in a proceeding for the protection of the-, surplus; but they did not, and, inasmuch as Booss & Co. did only what Atkinson was entitled to do, they are entitled; to take out of the proceeds of the note a reasonable compensation for so doing. N° 'question is raised as to the-reasonableness of the claim made.

The decree of the court below dismissing the bill as to> defendant Swift is affirmed, with costs.

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


text:
    Peter McRae v. The Garth Lumber Company.

      Logging contract— Evidence— Replevin— Judgment— New trial— Review of decision denying motion.

    1. Where the evidence as to whether or not a claimed contract was made. is conflicting, the question should be submitted to the jury.
    2. Plaintiff, after receiving from defendant a portion of a quantity of saw-logs driven by the defendant for him, brought replevin for the remainder of the logs, 648 of which were not taken on the writ. The evidence showed how many logs were cut, marked, and put into the river, and that defendant ran said logs, with other logs, to its boom, and there was testimony from which the jury could estimate how many logs were received by the plaintiff before the issuance of the writ. And it is held that it was not error for the court to permit the jury to find a verdict for the value of the logs not taken on the writ.
    3. The action of the circuit judge in refusing to grant a motion for a new trial will not be reviewed where his reasons for such refusal are not incorporated in the bill of exceptions as a part of the record of the proceedings had on said motion.*

      Error to Delta. (Stone, J.)
    Argued October 11, 1894.
    Decided November 20, 1894.
    Eeplevin. Defendant brings error.
    Affirmed.
    The facts are stated in tbe opinion.

      Sawyer, Waite S Waite, for appellant.

      George Gallup, for plaintiff.

       REVIEW OF DECISION OF CIRCUIT JUDGE REFUSING MOTION FOR NEW TRIAL.
      For cases bearing upon the proper construction of and practice under Act No. 134, Laws of 1893, which provides that “in all cases hereafter taken to the Supreme Court on writ of error or .appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had ■ on said motion for a new trial, including the reasons given by ■the trial judge in refusing to grant said new trial,” and that “exceptions may be taken and error assigned on the decision of ■the circuit judge in refusing such motion, and the same shall be ¡reviewed by the Supreme Court,” see:
      1. Gemberling v. Lazarus, 100 Mich. 324, holding that the statute .does not apply where the motion was decided, and writ of error issued; before the act took effect.
      2. Morley v. Wayne Circuit Judge, where relator applied for mandamus to compel the respondent to give and file his reasons for refusing to grant a motion for a new trial, and to incorporate said reasons in the bill of exceptions. On April 4, 1894, a claimant against the estate of a deceased person recovered a verdict for $23,000. Ten days later a motion for a new trial was made, based upon the files, records, and proceedings in the case, upon the stenographer’s minutes taken on the trial, and upon a certain affidavit filed in support of said motion. The reasons assigned why a new trial should be ordered were:
      a — The erroneous admission and rejection of testimony.
      b — The refusal to give certain requests to charge, and the giving ■of certain alleged erroneous instructions in the general charge.
      o — Because the verdict was against the weight of evidence submitted upon the trial.
      d — Because the claim was one of equitable cognizance, and not a proper subject for a jury trial..
      The motion was argued May 12, 1894, and denied July 21, 1894, ■at which time the circuit judge filed his reasons as follows:
      “I have carefully examined the errors alleged to have been made in the trial of this cause, and I am not satisfied that any •error was committed. I have given this case what attention and consideration it was possible for me to give, and I direct that the verdict stand, and that the motion for a new trial be denied, with $10 costs.”
      The circuit judge returned that the bill of exceptions was noticed for settlement for October 1, 1894, at which date the counsel for the appellee did not appear; that it was again noticed for settlement for November 24, 1894, at which-time counsel for both parties appeared, and settled some disputed propositions; that on December 18, 1894, counsel again appeared, and further disputes, were settled, and, as this necessitated some changes, it was agreed between counsel that, these changes being made, the bill should be signed; that on December 19, 1894, the bill was presented to. the circuit judge by the attorney for the appellant, corrected a8 agreed upon, and was signed by him; that, after the refusal of the motion for a new trial, the circuit judge heard nothing more-concerning the order of denial until December 14, 1894, at which time one of the attorneys for the appellant asked him to file-reasons for denying the motion; that the respondent told said attorney that the whole thing had passed from his mind, and that, if he had to file additional reasons, he should order a re-argument of the motion, and, as the bill of exceptions had been-practically settled, he thought it was too late to make such a demand; and that thereupon he was served with the notice to file-his reasons as aforesaid.
      The circuit judge submitted:
      a — That the request to file reasons should have been made before the motion was decided, or at least before the writ of error was sued out, and not delayed until a day or two before the bill of exceptions was settled.
      b — That the reason already given — that he was satisfied no error had been committed, and therefore a new trial was. refused — was ample reason for denying the motion; and that he did not understand that the statute required him to make an argument in support of the position, or that the reasons should be set forth at length.
      The application for mandamus was denied January 81, 1895. No opinion was filed.

   Long, J.

Action of replevin. Plaintiff had .verdict and judgment in the court below, finding the title in him to •■such property as was taken on the writ, and a money judgment of $1,427.49 for property described in the writ, •and not found hy the officer.

The claim of the plaintiff on the trial was that he cut and delivered into the White Fish river, in the winter of 1892-93, 10,655 white pine logs, and 765 pieces of waney timber, and that such logs and timber were driven down the river by defendant, and put into its boom; that thereafter plaintiff received from the defendant, before commencement of suit, 7,824 of the logs, and all but 61 pieces, of the timber, leaving a balance of logs in defendant’s-possession of 2,831, and the 61 pieces of timber. Demand was made for this balance, when defendant claimed a lien for driving under a contract for 50 cents per thousand feet. Plaintiff denied this contract, but made a tender of 8885, which amounted to 35 cents per thousand. Plaintiff took, under his writ, 2,183 logs and -all the timber, leaving 648 logs unaccounted for, and. for which the money judgment was entered. Under order of the court, on motion for new trial, the plaintiff remitted from this judgment the sum of 8120.

The first contention in the court below was that a contract existed between the parties, by which plaintiff agreed to pay 50 cents per thousand feet .for driving the logs. It is conceded that the tender was not sufficient to cover this amount. The plaintiff denies that such a contract was ever made. The court left that question to the jury to determine; but defendant contends that the testimony shows conclusively that such a contract was made, and that the court should so have directed the jury. After a careful examination of the testimony we are satisfied that there was a conflict of evidence on that point, and the court was correct in leaving it to the jury.

It is also contended that the court was in error in permitting the jury to find a verdict for the value of the logs not taken under the writ, for the reasons:

1. That there was no evidence showing how many logs came into the possession of the defendant, other than the amount agreed upon as having been sorted.
2. That there was no evidence to show how many logs had been delivered to plaintiff.

We think the testimony does show how many logs came into the possession of defendant; at least, the testimony shows how many logs were cut, marked, and put into the river, and it is shown that defendant took possession of them, and ran them, with other logs, to the boom. It is also shown, or such testimony was given from which the jury could estimate, how many .logs were delivered to the plaintiff.

The questions presented by this record are mostly such as were settled in the court below by the verdict of the jury under a very full and fair charge. It is claimed, however, that the court should have granted a new trial on newly-discovered evidence. Act No. 134, Laws of 1893, has provided for the manner of review. Among other things, it is provided by that act that there may be incorporated in the bill of exceptions a record of all the proceedings had on the motion for a new trial, including the reasons given by the trial judge in refusing to grant a new trial. Exceptions may be taken, and error assigned on such decision. The reasons of the circuit judge for refusing the new trial are not given. Apparently, the judge was not asked to give his reasons for such refusal. Unless the statute is followed in this regard, this Court cannot review that action.

We are satisfied that the case was fairly tried, and we find no error in the record calling for a new trial.

The judgment is affirmed.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


author: McGrath, 0. J.

text:
    Arthur H. Swarthout v. Elizabeth Lucas.
    [See 99 Mich. 847.]

      Contempt — Non-payment of costs — Dismissal of appeal from justice's court.

    1. The purpose of How. Stat. § 7260, which provides that “when any rule or order of the court shall have been made for the payment of costs or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money, and of. a refusal to pay it, the court may order a precept to commit the person so disobeying to prison until such sum, and the costs and expenses of the proceeding, shall be paid,” is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute.
    2. On the hearing of a motion to' dismiss an appeal from justice’s court for the failure of the appellant to pay certain costs and for defects in the appeal bond, an order was made requiring the payment of said costs and the amendment of the bond within 10 days, or in default thereof the appeal be dismissed. The order further required the appellant to pay to the attorney for the appellee an attorney fee of $5. The order was not complied with. Contempt proceedings were instituted because of the non-payment of said attorney fee, and the appellant was adjudged guilty of a criminal contempt, and an order was«made that he forthwith, pay said fee and the costs of the contempt proceedings, and that he remain imprisoned in the common jail of the county until such payment, should be made, or until he should be thence discharged by due course of law. And it is held that the case must be treated as though the correct practice had been followed, — making the payment of costs one of the conditions of the order, and a part of the judgment in case of non-compliance; that the court had ample power to enforce its order, and to award an execution for the costs, and could not, by the mere form of the order, deprive the appellant of the protection of How. Stat. § 7257, subd. 3, which confines the remedy by contempt proceedings to cases,where, by law, execution cannot be awarded.

      Certiorari to Saginaw. (McKnight,' J.)
    Argued October 25, 1894.
    Decided November 20,. 1894.

      Certiorari to review an order of the circuit court committing plaintiff for contempt.
    Eeversed.
    The facts are stated in the opinion, and in 99 Mich. 347.

      John F. O’Keefe (Weadoch é Purcell, of counsel), for plaintiff and petitioner in certiorari.

      Bauer & Baton, for defendant.
   McGrath, 0. J.

This is certiorari to the circuit court to review an order committing plaintiff for contempt. Swarthout brought suit in justice^ court against Elizabeth Lucas. Defendant had judgment, from which plaintiff appealed.

On motion to dismiss the appeal, the following order was entered:

“In this cause, motion having been made by Fred. L. Eaton, Jr., attorney for the defendant and appellee, to dismiss the appeal for failure to comply with the statute, after hearing counsel for the respective parties therein, it is ordered that the said plaintiff and appellant pay to the said defendant and appellee the sum of $17.75, justice’s fees in said cause, as provided for in section 7003, Howell’s Annotated Statutes, and the bond in said cause be amended, within 10 days; and, in default of said plaintiff complying with said conditions as aforesaid within said time, the said appeal to .be dismissed.
“And it is further ordered that the said plaintiff pay to the said defendant’s attorney the sum of $5, as an attorney fee for said motion.”

The purpose of section 7260, How. Stat., is to enable courts to enforce interlocutory orders, no other means of enforcement being provided by statute. Section 7257 expressly confines the remedy by contempt proceedings to cases where, by law, execution cannot ‘be awarded. Section 7021 expressly provides that, if an appeal be dismissed or discontinued, the court shall enter judgment in favor of the appellee for costs. In Detroit & Birmingham Plank Road Co. v. Circuit Judge, 27 Mich. 303, it was held that the proper practice, in case oft a motion to -dismiss an appeal for defects in the affidavit or bond, is to make an order nisi that the appeal be dismissed unless, within a time specified, a new and correct affidavit or bond be filed. The court had the power to enter such an order, and to make the payment of the costs one of the conditions, and a part of the judgment in case the other conditions were not complied with. The case must be treated as though such practice had been followed. The court having ample power to enforce its order, and to award an execution for the costs, it could not, by the mere form of the order, deprive the party of the protection of the statute.

The order adjudging plaintiff guilty of contempt must be set aside, with costs .against defendant.

. The other Justices concurred.