text:
    STICKLEY v. TOWNSHIP OF SODUS.
    1. Highways — Private Roads — Permissive Use by Public.
    A mere permissive use of a private road by the general public, however long continued, will not make it a public highway.
    2. Same — User—When Sufficient.
    To constitute a highway by user under the statute (2 Oomp. Laws, § 4061, providing that all roads that have been used as such for 10 years or more shall be deemed public highways), such use must have been accompanied by some act on the part of the township authorities so open, notorious, and hostile as to be notice to the landowner that hig title was denied.
    3. Same.
    A road opened and maintained by a landowner for his own use and profit, leading from a highway to a private ferry over a navigable stream, operated under authority from the board of supervisors, which road was used by all persons having occasion to travel over it for more than 30 years, but was never dedicated to the public, nor treated as a highway by the township authorities, did not, by such user, become a public highway, so as to charge the township with the duty to keep it in repair.
    Error to Berrien; Ooolidge, J.
    Submitted April 24, 1902.
    (Docket No. 137.)
    Decided October 7, 1902.
    Case by Lucy Stickley against the township of S'odus for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Plaintiff was driving with a horse and buggy down a roadway leading from the top of the bluff along the east bank of the St. Joseph river, in the defendant township, to what is known as “King’s Landing.” The bank is high and steep. She was precipitated over the bank and injured. The negligence alleged is the failure to erect suitable barriers along the side of the road. The principal defense is that the road is not a public highway, but a private road, and that the defendant was under no obligation to keep it in repair. The sole question presented for determination is, Was this road a public highway? If it was, defendant is liable; if it was .not, the defendant is not liable.
    It is conceded that the owners of the land never dedicated this.road to the public for a highway; that no proceedings were ever instituted to lay it out as a highway; that it was originally a private road; and that the township authorities never exercised any control over it, and never accepted it as a public highway, unless the use of it by travelers- without objection amounted to such control and acceptance. Plaintiff bases her right to recover entirely upon the theory that this road has become a public highway by user alone, under the statute (2 Comp. Laws, § 4061), which reads:
    “All highways regularly established in pursuance of ■existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, * * * shall be deemed public highways.”
    The facts are not in doubt. The townships of Sodus and Royalton, in Berrien county, constitute town 5 S., range 18 W. The St. Joseph river, a crooked, navigable stream, divides township 5, range 18, into about two equal parts; one being Sodus, the other Royalton. On the Royalton side of the St. Joseph river, near where this injury occurred, the land is bottom land, and but little higher than the bed of the river. On the Sodus side the land is many feet above the river bed, and in the vicinity where the accident occurred it is about 55 feet higher. On account of the bluffs on the east side of the river, there has never been a bridge erected across the river between the city of St. Joseph and Berrien Springs, a distance by water of 25 miles, until within the last three or four years, when a railroad and carriage bridge was built by the railroad company at Somerleyton, a few miles to the north and west of the place where this injury happened.
    St. Joseph river has always been navigable for flat-bottomed boats, scows, rafts, and the like. In the early days of the county, between 1850 and 1870, when lands were being cleared in Sodus and vicinity, it was necessary that logs, wood, and other forest products be put into the river and floated down to St. Joseph, at the mouth of the river. Sawmills were built in Sodus township, and lumber manufactured, and transported down the river on rafts, boats, and scows.
    The township authorities of Sodus township never laid out and established any highway running down to the river. They had laid out and established certain highways running east and west and north and south, and had laid out and established a highway running in a northerly and southerly direction near the bluff of the river, which is called in these proceedings the “River Road.” In some places this River road is quite close to the bluff of the river; in other places quite a distance away from the river. The township had also, among other roads, laid out and established a road on the section line between sections 10, 11, and 12 on the north and 15, 14, and 13 on the south. This road is called in these proceedings the “Sodus Road,” and extends no farther west than the River road.
    Some time between 1850 and 1860 one Golden owned the land upon which the roadway in question is now situate. Owners of land along the river at that time received pay for banking forest products upon their land. Golden, seeing that he had a better place than some of his neighbors, commenced to build this road for his own gain. About 1865 Golden sold the land, including this roadway, to one Versaw, who continued to own it until about 1885, when he sold to one Gunther. It is now owned by several parties. Versaw, after he became the owner, completed the road. A roadway of some kind had existed there for at least 35 years before the injury. It was also conceded that the records of the township do not say anything at all about this roadway, and fail to disclose any action by the authorities concerning it. It commenced at the intersection of the Sodus and River roads, and terminated at the ferry beyond the Graham landing, and is about 900 feet in length. Its narrowest width is 7 feet, its greatest width 14 feet. The left side of the road, in going down the bluff, is principally clay. At the foot of the hill there is about a quarter of an acre of nearly level area. A shanty or boat dock is here operated by Graham. A small steamboat, called the “May Graham,” lands there. Beyond the shanty is the ferry dock. Both docks and the ferry are private property. There has never been a railing or barrier of any kind along this roadway. At the place where plaintiff went over the embankment, the roadway was wider than at any other portion, and the distance from the roadway at that point to the river was from 25 to 30 feet.
    On the Royalton side of the river.a highway was laid out on the section line between sections 9 and 16, running to the river itself. If this was ever established by the authorities, it would appear that the last quarter of a mile of it was never in fact used by any one. The record discloses that this section-line highway was properly established and worked until it reaches the 35-acre tract now owned by Frank Steimle, and that it there stops. Forty or more years ago one Polly Wood owned the Steimle place, and had logs and forest products banked on her place, for which she made a charge. Her dock or landing was called “Polly Wood’s Landing,” and is directly opposite the so-called “King’s Landing.” In order to get to her landing people drove over her land from the public highway. No town work was ever done on the roadway running through her land to the river. Frank Steimle bought her place about 27 years ago, and the roadway thróugh his land still exists as it did when Polly Wood owned it. No public work has been done on that roadway since Steimle owned the land. Many years before a ferry was put in there, people having milling to do used this Polly Wood roadway to get to the river, and then in the summer-time took their grain across the river in boats, and had it carted up the King’s Landing road, or, in the winter time, crossed on the ice.
    About 24 years ago one Deaner put in a ferry connecting the Steimle or Polly Wood’s landing and King’s landing. This ferry was operated one or two years. At the time Deaner operated this ferry, a part of the roadway in question slid down, and Deaner fixed it at his own expense. About 22 years ago Steimle began operating a ferry between these two landings. In 1892 he petitioned the board of supervisors for a license to operate a ferry across the river at this point. It was granted upon condition that he “construct and maintain all roads and approaches to said ferry at his own expense.” Steimle, a witness for plaintiff, testified as follows:
    “ The reason I worked on the King’s Landing road was because of this license, and also to keep the road straight, so teams could go up and down, and I could make more money with my ferry.”
    The owners of the land across which this road runs, and those who used it, did all the work that was ever done upon it, except a trifling amount which the overseer of highways did in 1897 or 1898 and 1899, — two or three years before this suit was commenced. This is so trifling and so recent that the learned counsel for plaintiff do not mention it in their brief, and evidently do not consider it of any importance. Neither do we.
    Plaintiff recovered verdict and judgment.

      Lawrence G. Fyfe and O’Hara & O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Grant, J.

(after stating the facts). Plaintiff claims that this private road has been converted into a public highway. She bases her claim solely upon the statute above cited, and insists that user alone by those having occasion to travel over it is sufficient to convert it into a public highway. The question, therefore, is, Under what circumstances does a private road become a public highway by user, as provided by the statute ? This road was originally built for private gain, over private grounds, and to a private dock and ferry. The record is absolutely barren of any testimony tending to show that the original owners of the land and the builders of this road intended to make it a public highway. At what period and by what acts was its private character changed into a public one ? It is true that for nearly 35 years every one who had occasion to pass that way walked or drove over it without objection from the owners of the land. Not only that, but those who built it and their successors invited every member of the public to use it, for every member of the public paid them for the use of the dock and ferry at its terminus. It is also true that, for the same length of time, the township authorities took no action, either in writing or by act, to indicate that the township ever intended to establish or accept this road as a highway, or that they considered the township liable in any way for its condition, or that they were under any obligation to keep it in repair. Its use by the public has been no other •or different during the past 30 years than it was the first year after its construction. There has been no change in the character of the travel. The relations between the owners and the public have never changed. Neither has done anything to indicate to the other that they understood that its original character had been changed. The learned counsel for plaintiff seem to be of the opinion that, when one opens a private road, it becomes his duty to put up some notice to show that it is not a public, but a private, way. They say in their brief:

“The record does not show that the owners of the land over which the road passed ever did a thing to show that they considered it other than a public highway. No one who desired to use it was ever turned back, or his right to use it questioned. • It was used as uninterruptedly by the public as Woodward avenue, in Detroit.”

It would certainly be a strange rule which would require the original constructors of this road to turn people back, or question the right of any traveler to use it, when the traveler was invited to use it, and its use required the payment of toll at the dock or ferry at its terminus. The above statement made by counsel is undoubtedly true, for, the greater the travel, the more money for the owners of the dock and ferry. A private way is just as much open for use by those who have occasion to use it as is a public way. If Woodward avenue, in Detroit, which extends to the water line of the river, and was so established originally, had been laid out and constructed to within only 200 feet of the river, and the owner of the land between the foot of the street and the river had opened it for his own dockage and ferry purposes, had paved it, kept it in repair, and had not only permitted but invited the public to pass over it for ferriage to Windsor, Belle Isle Park, and other places upon the river, would such use for 10 or 100 years make it a public highway, take exceedingly valuable property from the owner for a public use, and impose heavy burdens upon the city of Detroit for neglect to keep it in repair ? If this be so, then every owner of land along the river front in the city of Detroit and elsewhere, who builds a private dock or establishes a ferry, and opens a road from the public highway to such dock or ferry, loses the title to his land by such use. No case cited maintains such a doctrine. The defendant township had constructed and maintained the River road and the Sodus road for the public use. There is nothing to indicate that its public authorities ever intended to adopt this road along the side of this steep bank as a part of its system of highways.

A farmer may open a private road from one public highway to another across his farm, which will accommodate not only himself, but all who choose to travel that way. His permission to the general public to travel that way is not an act hostile to his title, or to his right to close the road at any time. So a manufacturer may establish his plant in the center of his lands, and open a road to the public highway upon either side, and permit the public to use it, and merchants and peddlers to travel it, carrying their goods for sale to the houses^wned by him and occupied by his employés and tenants. But such use is permissive, and gives the public no permanent rights in it as a highway. So a mining corporation, as is often the case, constructs roads from the public highways in, over, and around its mine, built and kept in repair by the company, and permits the public the free use of them. But this does not make them public highways within the meaning of the statute. Such permissive or invited use is not that use contemplated by the statute which will convert a private road into a public highway. The use required by the statute is one accompanied by some act on the part of the township authorities open, notorious, and hostile to the private ownership; some act which gives the original owner notice that his title is denied. Alton v. Meeuwenberg, 108 Mich. 629 (66 N. W. 571); Diamond Match Co. v. Village of Ontonagon, 72 Mich. 249 (40 N. W. 448). Mr. Elliott says:

* ‘ It must appear that the owner fully consented to the change, or there must be some element of estoppel to deprive him of his rights as the owner of the fee. Where a way is laid out and used as a private way, the mere fact that the public also makes use of it without objection from the owner will not make it a public way.” Elliott, Roads & S. § 5.

This doctrine applies with special force to those roads built in a new country, and for such purposes as was the road in question. The mere use, however long, is not sufficient to effect a change. District of Columbia v. Robinson, 180 U. S. 92 (21 Sup. Ct. 283); Lewis v. City of Lincoln, 55 Neb. 3 (75 N. W. 155); Speir v. Town of New Utrecht, 121 N. Y. 429 (24 N. E. 692); Lewis v. Railroad Co., 123 N. Y. 502 (26 N. E. 357); Downend v. Kansas City, 156 Mo. 60 (56 S. W. 902, 51 L. R. A. 170); Stewart v. Frink, 94 N. C. 487 (55 Am. Rep. 619);. Root v. Com., 98 Pa. St. 170 (42 Am. Rep. 614).

In Speir v. Town of New Utrecht it is said:

‘ ‘ The mere fact that a portion of the public travel over a road for 20 years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be' kept in repair or taken in charge and adopted by the public authorities. * * * A private way, opened by the owners of the land through which it passes for their own uses, does not become a public highway merely because the public are also permitted for many years to travel over it.”

In Stewart v. Frink it is said:

“It would be unjust, as well as ungracious, to take advantage of his [the landowner’s] generous permission to use his land for public convenience, and the law will not allow this to be done.”

This statute was not passed with the view to convert private roads into public ways. It was designed to remedy defects in establishing and recording highways. Green v. Belitz, 34 Mich. 512.

Among the cases cited by counsel for plaintiff as conclusive of their position is Ellsworth v. City of Grand Rapids, 27 Mich. 250. That case well illustrates the purpose of this statute and its necessity. The road there in dispute was originally laid out by the commissioner of highways, but there was a mistake in the survey or in recording it. It formed one of the principal thoroughfares in and out of the city of Grand Rapids. Immediately after it was laid out, it was worked by the city authorities, and continued to be worked and maintained solely by them. The language relied upon in that case has no' application to a case like the one now before us. In all the cases cited, the municipal authorities had taken some action hostile to the claim of the landowner that it was a private road, and by failing to assert his rights he was estopped after 10 years from setting them up.

The action of the board of supervisors in establishing a ferry has no significance. It does not even tend to show that the supervisors considered the road a public one. But, even if they did, they could not bind the township. The river was navigable, and, under the statute, the board of supervisors had control over bridges and ferries across it, and, under the police power, were authorized to license private ferries and establish requirements for their management.

The judgment is reversed, and a new trial ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Grant, J. Moore, J. Grant, J. Carpenter, J.

license: Public Domain

text:
    PEOPLE v. ELCO.
    1. Rape — Age oe Consent — Evidence.
    On a prosecution for carnally knowing a girl under 16 years old, respondent’s admissions that the girl was “under age,” as well as the appearance of the girl, are competent to be considered by the jury.
    2. Same — Question eor Jury.
    On such a prosecution, several witnesses testified to respondent’s admissions that the girl was under age. The girl and her mother both testified that she was over 16 at the time of the alleged offense, but it appeared that they had testified to the contrary on the preliminary examination, and, in order to substantiate her claim on the trial, the mother was obliged to change the date of the birth of each of her several children from that given on the examination. Held, that the question of the girl’s age was for the jury.

      8. Same — Subsequent Relations.
    It was competent for the people to show that, after the commission of the alleged offense, and while the girl was with child, the relations between her and respondent were intimate and friendly.
    on rehearins.
    1. Criminal Law — Witnesses—Impeachment.
    The prosecution in a criminal case may show contradictory statements of a hostile witness, whom the law compels it to call, for the purpose of affecting his credibility. Carpenter and Moore, JJ., dissenting.
    2. Trial — Objections to Testimony — Appeal.
    Where, on objection made to certain testimony, the court holds it admissible for a particular purpose not within the scope of the objection, an exception to such ruling will, it seems, raise the question of the admissibility of the testimony for the purpose stated by the court.
    Error to Hillsdale; Chester, J.
    Submitted June 5, 1902
    (docket No. 100);
    opinions filed October 7, 1902.
    Rehearing granted November 19, 1902;
    reargued December 2, 1902;
    former decision reversed May 29, 1903.
    Al Elco was convicted of statutory rape.
    Affirmed.

      Frank M. Hall and Fred O’Melay, for appellant.

      William H. Frankhauser, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted of sexual intercourse with one Pearl Arnold, a female under the age of 16 years.

1. The principal ground of error relied upon for reversal is that there was no competent proof to establish the girl’s age. The respondent is the girl’s uncle, and was 30 years old. The complaint was not made either by the girl or her mother, but by a neighbor. She had been delivered of a child.- The girl and her mother were both witnesses hostile to the prosecution, and desired to shield the respondent. Both the girl and her mother, upon the examination, testified that the girl was under 16 years of age at the time of the alleged intercourse. Upon the trial both testified that they were mistaken, and that she was a year older, which made her more than 16 years of age. The girl also denied ever having sexual intercourse with the respondent. Several witnesses testified that the respondent told them that he had “gotten the girl into trouble; that her mother threatened prosecution; and that the girl was under age.” He did not deny these statements, taking advantage of his constitutional right not to testify. The jury were entitled to consider the statements of the respondent as to her age, and as well her appearance. Com. v. Emmons, 98 Mass. 6; Com. v. Phillips, 162 Mass. 504 (39 N. E. 109); People v. New York County Justices, 10 Hun, 224. What the respondent meant by using the expression, “The girl was under age,” was for the jury.

It is impossible to read this record without reaching the conclusion that the girl was infatuated with the respondent, and that she testified falsely for the sole purpose of shielding him. No other conclusion can with reason be reached than that he had sexual intercourse with her during the time alleged in the information. The mother had had several children, and was compelled to change the dates of the births of all of them, from that to which she testified upon the examination, in order to make the age of Pearl above 16. We think there was conflicting evidence in regard to her age, which made it a proper question for the jury-

2. Evidence was permitted tending to show that Pearl and respondent left Michigan and went to Indiana, where her child was born, and to show intimate relations subsequent to the time of the commission of the crime. This testimony was offered, not to establish other and subsequent offenses, but to show his treatment of the girl after the commission of the alleged offense, and after he ascertained that she was with child. This testimony is not within the rule established in People v. Clark, 33 Mich. 112; People v. Etter, 81 Mich. 570 (45 N. W. 1109); and People v. Fowler, 104 Mich. 449 (62 N. W. 572). In these cases the prosecution was permitted to show subsequent acts of sexual intercourse to prove the one charged. This was held improper. This case comes within the rule established in People v. Hubbard, 92 Mich. 326 (52 N. W. 729), People v. Craig, 116 Mich. 388 (74 N. W. 528), and Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243), and authorities cited, in which it was held competent to show the subsequent and intimate friendly* relations of the parties. The court very carefully instructed the jury upon this point, in accordance with the rule of these decisions.

3. Testimony was introduced showing admissions by Pearl that she and the respondent lived together in Indiana. The objection made to this testimony was that it was immaterial, and that the admissions were not made in the presence of the respondent. The court stated that he admitted them only as bearing on the credibility of the witness Pearl, she having denied that she there lived with respondent. No objection was made to this testimony upon this ground. If the witness Pearl had been called as a witness by the respondent, this testimony would have been clearly admissible. As already stated, it was apparent that she was in fact his witness, and testified for the purpose of protecting him. Whether, under such circumstances, it was competent for the people to show contradictory statements made by her, we need not consider, inasmuch as this point was not raised in the court below. I do not think upon this record that the case should be-reversed for the admission of this testimony.

Conviction should be affirmed.

Moore, J.

I cannot agree with Mr. Justice Grant that testimony of admissions made by Pearl Arnold not in the presence of the accused was admissible. The case is directly within People v. Fowler, 104 Mich. 449 (62 N. W. 572), and the cases there cited.

The conviction should be set aside, and a new trial ordered.

Hooker, C. J., and Montgomery, J., concurred with Moore, J.

on rehearing.

Grant, J.

A rehearing was granted in this case upon the point upon which it was reversed. Counsel for the people urge that Pearl Arnold was a hostile witness,— one whom they were compelled by the law to call; that they are not bound by her testimony, and may impeach her by showing that she made contradictory statements. This question was not discussed in either opinion rendered at the former hearing. The question is one of importance, and upon it the authorities neither in England nor America are in harmony. Many decisions in both countries hold that a party cannot thus impeach his own witness, while many others hold to the contrary. Neither text-writers nor courts appear to agree which holding is supported by the weight of authority. Greenleaf states that the weight of authority is in favor of admitting the evidence. 1 Greenl. Ev. (16th Ed.) § 444. This statement .of the learned author is questioned by the decisions of some of the courts. This court has held that it is competent to permit the prosecuting attorney to read to an unwilling witness, whom he is compelled to call, his deposition taken before the examining magistrate, and interrogate him in relation to the statements made therein. People v. Case, 105 Mich. 92 (62 N. W. 1017). The right of thus impeaching a witness was somewhat discussed in that case, and some authorities cited. It cannot, perhaps, be regarded as explicitly determining the question, inasmuch as it was said that impeachment was not there attempted, but that the use made of the deposition was to overcome the witness’ disinclination to divulge. This ruling was followed in People v. Gillespie, 111 Mich. 241 (69 N. W. 490), where an affidavit made by an unwilling witness, called by the prosecution, which was surprised at her testimony, was permitted to be read to her for the purpose of inducing the witness to state what she knew of the facts. These cases cannot, perhaps, be regarded as deciding the question.

Text-writers and courts which hold to the rule excluding such testimony admit that the party is not bound by the evidence of the. witness, but may prove the contrary by other witnesses, and argue to the jury that these have told the truth, rather than the other. Indirectly, at least, this is as complete an impeachment of a witness as any. The same authorities also recognize an exception in the case of witnesses whom a party is compelled to call, — as subscribing witnesses to wills, deeds, etc. Selover v. Bryant, 21 L. R. A. 418 (54 Minn. 434, 56 N. W. 58), note, and authorities there cited. In that case it is said:

“We feel confident that well-recognized reasons and principles of the law of evidence support the proposition that, at least in the discretion of the Trial court, such evidence [contradictory statements] is admissible.”

In State v. Sorter, 52 Kan. 531 (34 Pac. 1036), it is said:

‘ ‘ Where a party has been entrapped or deceived by an artful or hostile witness, he may examine the witness as to contrary declarations, and may, in the discretion of the court, be allowed to show what such contrary declarations were.”

The reason for allowing a party to impeach a subscribing witness to a will, etc., is that he is a witness whom the - law requires him to call. Why should not the same reason hold good in every case where the law compels the party to produce a witness ? It is clearly so held in State v. Slack, 69 Vt. 486 (38 Atl. 311).

Rapalje, in his recent work on the Law of Witnesses, states four exceptions to the rule:

“(1) Where the party is compelled to call the witness in order to make out his case; (2) where the object is to show the true facts, not merely to discredit the witness; (3) where the witness is an adverse party; and (4) where he is hostile or unfriendly.” . Rap. Wit. §§ 213-216.

It is easy to raise objections to either course.

Best, in his work on Evidence, quotes from Phillipps & Ames on Evidence, as follows:

“It may be further remarked that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings; that the ends of justice are best attained by allowing a free and ample scope for scrutinizing evidence and estimating its real value; and that in the administration of criminal justice, more especially, the exclusion of the proof of contrary statements might be attended with the worse consequences. ” Best, Ev. § 645.

We also cite the following authorities as sustaining this method of impeaching hostile witnesses: Rex v. Oldroyd, Russ. & R. C. C. 88; Dunn v. Aslett, 2 Mo. & R. 122; U. S. v. Hall, 44 Fed. 864 (10 L. R. A. 324); Brown v. State, 28 Ga. 199; Hildreth v. Aldrich, 15 R. I. 163 (1 Atl. 249); Bank of Northern Liberties v. Davis, 6 Watts & S. 285; Com. v. Marrow, 3 Brewst. 402; Cox v. Prater, 67 Ga. 588; Cross v. Cross, 108 N. Y. 628 (15 N. E. 333); Hurlburt v. Bellows, 50 N. H. 105; McNerney v. Reading City, 150 Pa. St. 611 (25 Atl. 57); Moore v. Railroad Co., 59 Miss. 243; 29 Am. & Eng. Enc. Law (1st Ed.), 816; Thornton’s Ex’rs v. Thornton’s Heirs, 39 Vt. 122. See, also, Humble v. Shoemaker, 70 Iowa, 223 (30 N. W. 492).

One of the chief reasons given for the exclusion of such evidence is that the party producing the witness vouches for his credibility, and should not, therefore, be allowed to impeach him. Whatever force that reason may have in civil cases, it has no force in criminal ones, under the decisions of this court. In numerous decisions this court has held that the prosecuting attorney is bound' to produce before the jury facts which tend to prove, not only guilt, but those which tend to prove innocence. In certain crimes he must produce all the witnesses who were present and presumed to have knowledge of the crime, and this even though he has good reason to believe them hostile. Hurd v. People, 25 Mich. 405; Wellar v. People, 30 Mich. 16; Meister v. People, 31 Mich. 99. With this duty imposed upon the prosecuting attorney, how can he vouch for the credibility of the witnesses he places upon the stand and is compelled to call ? Besides, many of the witnesses in criminal cases do not come from the ranks of those entitled to the presumption of truth-tellers. They are often the accomplices of criminals and participants in crime, who have confessed and promised to testify to escape punishment. In crimes — and they are many' — committed in brothels and other like places, resorted to by the low and the vicious, the people cannot choose those witnesses whom they will vouch for as truth-tellers. They must call them all, and assist the jury in sifting the testimony and reaching the truth. Witnesses are not manufactured by the prosecution to order. It must take them as it finds them. One writer tersely says:

“If a lawsuit was a manufacture, and the party bringing it could select his materials, — facts and witnesses,— there might be some propriety in holding him responsible for the character of these materials; but, as both are beyond his control, his responsibility for their character is out of the question. He comes into the court with the best materials he can get to make out his case.” 11 Am. Law Rev. 267.

The most reputable and reliable persons are not usually found at places where crimes are committed. The people in this case were required, under our decisions, to call Pep.rl Arnold as their witness. She and the respondent alone knew the absolute truth as to the charge made against him. She was an extremely hostile witness, evidently determined to do all in her power to acquit him. The evidence in the case clearly establishes the fact that he had'sexual intercourse with her, and that he was the father of the child. When such a witness in a criminal •case is so clearly hostile, we think it entirely competent to impeach her by showing contradictory statements, not for the purpose of establishing the substantive fact of guilt, but that the jury may value her testimony at its real worth. To hold otherwise would result in many cases in the denial of justice. There is little danger that a respondent can be prejudiced by this course. The testimony must also relate to material facts, and the witness must first be interrogated as to the language of the statements, and the time when and place where, and the person to whom or in whose hearing, they were made.

Darling v. Thompson, 108 Mich. 215 (65 N. W. 754), was a civil case. One witness for the plaintiff had testified to a given state of facts. Another witness was called by the plaintiff, who testified to a different state of facts. It was urged that this was an attempt to impeach one’s own witness. It was held to be a contradiction, not an impeachment, and that a party could not be at the mercy of his first witness.

McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21), was also a civil case. The defendant claimed to have been taken by surprise by the testimony of one of his own witnesses, and submitted an affidavit made by her, contradictory of her statements upon the stand. Defendant was permitted to ask leading questions in regard to the affidavit, which she admitted she had made, but testified that it was obtained from her by threats in the office of the defendant’s attorneys. The witness who drew the affidavit was then called, and asked to state the language used by the witness when the affidavit was prepared. This was objected to as an attempt to impeach his own witness. The objection was at first sustained, but the court afterwards permitted the witness to testify as to whether any threats or force were used. We held that the court went far enough in permitting the defendant to attack the credibility of his own witness,

For the purposes of this case it might be admitted that in civil cases a party cannot impeach his own witness by showing contradictory statements. It is, however, unnecessary to determine that question. The question is, May the prosecution in a criminal case show contradictory statements made by a hostile witness, whom the law compels,the people to call, not for the purpose of proving the offense, but for the purpose of affecting the credibility of the witness ? This decision goes no further than to hold that in criminal cases this may be done.

The conviction is affirmed.

Hooker, C. J., and Montgomery, J., concurred with Grant, J.

Carpenter, J.

(dissenting). The defendant was convicted in the court below of sexual intercourse with one Pearl Arnold, a female under 16 years of age. A full statement of the case is found in the opinion of Mr. Justice Grant, at page 520, ante. A rehearing was granted, and the case was reargued late in the October term.

The important question is that upon which the justices differed on the former hearing, namely, did the people have a right to impeach Pearl Arnold, one of their own witnesses, by proof of prior contradictory statements ? As a witness on the part of the people, said Pearl Arnold denied that she had intercourse with defendant, and she also denied that she was with him in Indiana. The people placed upon the witness stand one Rose Pulks, and the following occurred:

Q. Now, what did Pearl say, if anything, about A1 and her being together down there in Indiana ? (Objected to by defendant as immaterial, and not in the presence of defendant.)
The Court: I think you may take the answer. It is to be received only as bearing on the credibility of Pearl,— not to be taken against the defendant. (Exception by defendant.)
Q. Just tell what she said about she and A1 being together in Indiana.
“A. She said she was out there in Indiana, and she didn’t have to work. She said A1 wouldn’t let her work nor do nothing, and I said, ‘ That makes it nice for you, don’t it ? ’ and she said, ‘ Yes, it does.’ ”

In answer to defendant’s argument against the admissibility of this testimony, it is said, first, that the objection of defendant’s counsel was not sufficient to permit him to contend that the testimony was not admissible as affecting the credibility of the witness Pearl Arnold; and, second, that the testimony was in fact admissible for the purpose of affecting her credibility.

I think the defendant’s objection permits him to urge that the testimony was not admissible to affect the credibility of the witness. It is true that this precise objection was not made, and that, when the question was first asked, the objection was that the testimony was immaterial, and the conversation not in the presence of defendant. But when the court said the testimony would be received as bearing upon the credibility of the witness, defendant’s counsel, by excepting to that ruling, indicated that, notwithstanding this suggested reason, he objected to the testimony. If he had said, “I object to the testimony because it is not admissible as affecting the credibility of the witness,” which certainly would have been sufficient, he would no more clearly have apprised the court and opposing counsel that he insisted on that objection.

Is the testimony admissible to affect the credibility of the witness ? I am by no means sure that the fact that Pearl Arnold and defendant lived together in Indiana had any bearing on the issue in this suit. If it had not, this testimony is clearly inadmissible. I shall assume, however, under the authority of People v. Schilling, 110 Mich. 412 (68 N. W. 233), People v. Keefer, 103 Mich. 83 (61 N. W. 338), People v. Jamieson, 124 Mich. 164 (82 N. W. 835), and Matthews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243), that it had a material bearing on this issue; and, under that assumption, I will consider whether or not it is admissible. Its admissibility for the purpose of affecting the credibility of the witness is urged on two grounds, not entirely consistent with one another, either of which is sufficient: First, it is urged as a rule of practice, applicable generally, that a party calling a hostile witness, or a witness who testifies contrary to what is expected, may attack his credibility by proving prior contradictory statements; second, if general practice does not justify this method of impeachment, it is insisted that it was proper in this case, because the law compelled the prosecution to call this witness, and therefore exempts it from the operation of the ordinary rule.

The authorities respecting the first of these grounds, as appears from the majority opinion, are not harmonious. They are collected and discussed in the careful and well-considered opinion of Mr. Justice Williams in Hurley v. State, 46 Ohio St. 320 (21 N. E. 645, 4 L. R. A. 161). In that case, which was a trial for murder, a witness for the State gave materially different testimony from that given by him at the coroner’s inquest. The prosecuting attorney was permitted, against defendant’s objection, not only to call the attention of the witness to his former testimony, but was also permitted, in instances where he denied the statements attributed to him, to prove that he made them, by the testimony of the coroner’s clerk. The opinion contains a detailed and elaborate examination of the text-books and decisions touching this question. All the cases cited in support of the proposition contended for by Mr. Greenleaf, referred to in the majority opinion, are noticed, and the conclusion is reached that only one of these authorities, namely, State v. Norris, 2 N. C. 437, 438 (1 Am. Dec. 564), and certain dissenting opinions, sustain the text. On the other hhnd, numerous authorities are cited which oppose it, and the conclusion is reached in that case, as correctly stated in the headnote, that:

“A party who calls a witness, and is taken by surprise by his unexpected and unfavorable testimony, may interrogate him in respect to declarations and statements previously made by him, which are inconsistent with his testimony, for the purpose of refreshing his recollection, and inducing him to correct his testimony or explain his apparent inconsistency; and, for such purpose, his previous declarations may be repeated to him, and he may be called upon to say whether they were made by him. In case the witness denies having made such statements, or his answer is ambiguous concerning them, it is not competent for the party calling him to prove them by other witnesses.”

See, also, Cox v. Eayres, 55 Vt. 24 (45 Am. Rep. 583); Ellicott v. Pearl, 10 Pet. 412; Bullard v. Pearsall, 53 N. Y. 230; Adams v. Wheeler, 97 Mass. 67.

I forbear entering into any further discussion of these authorities, because I think the question is foreclosed by the decisions of this court. In Darling v. Thompson, 108 Mich., at page 218 (65 N. W. 755), it is said: “A party cannot impeach his own witness, but he may contradict him.” In the case of McGee v. Baumgartner, 121 Mich. 291 (80 N. W. 23), this precise question was involved and determined. I quote from that case:

“ Defendant claimed to have been taken by surprise by the testimony of one of his own witnesses. He then submitted to her an affidavit, which she had made in writing, contradictory of her statements upon the stand. Defendant was permitted to put leading questions to her in regard to this affidavit. She admitted having made the affidavit, but said it was obtained from her by threats in the office of the defendant’s attorneys. The witness who drew the affidavit was then called, and asked to state specifically the language used by the witness when the affidavit was prepared. Plaintiff’s counsel objected for the reason that it was an attempt to impeach the defendant’s own witness. The court at first sustained the objection, but finally permitted the witness to testify ” that no threats, force, or promises were used to induce the making of the affidavit. And it was decided that “the court went far enough to permit defendant to attack the credibility of his own witness.”

It appears from the record in that case that the witness whom it was sought to contradict testified contrary to the statements contained in the affidavit referred to. The rejected testimony was offered for the express purpose of discrediting the witness, and the argument advanced in its support was the authority of Greenleaf’s Evidence, heretofore referred to. McGee v. Baumgartner must, therefore, in my judgment, be regarded as an authority against the general proposition advanced in support of the ruling in question.

Can the ruling of the court be sustained on the ground that Pearl Arnold was a witness whom the people were compelled to call ? They were compelled to call her because, in this State, it is the rule that the prosecution must call “all the witnesses present at the transaction.” See Hurd v. People, 25 Mich., at page 416; Maher v. People, 10 Mich. 225, 226 (81 Am. Dec. 781). This rule was recognized and enforced because this court determined it to be a part of the common law. The authorities for this determination were the decisions of Reg. v. Chapman, 8 C. & P. 558, decided in 1838; Reg. v. Holden, 8 C. & P. 606, also decided in 1838; the unreported case of Reg. v. Orchard, referred to in the note to Reg. v. Chapman; and the case of Reg. v. Stroner, 1 C. & K. 650, decided in 1845. The supreme courts of some of our sister States have recognized this rule (State v. Magoon, 50 Vt., at pages, 339, 340; Territory v. Hanna, 5 Mont. 248 [5 Pac. 252]; Donaldson v. Com., 95 Pa. St., at page 24), though more of them have rejected it (State v. Martin, 24 N. C., at pages 119, 120; State v. Smallwood, 75 N. C., at page 106; State v. Eaton, 75 Mo., at page 593; State v. Cain, 20 W. Va. 685-693; Selph v. State, 22 Fla. 542 et seq.; Keller v. State, 123 Ind. 110 [23 N. E. 1138, 18 Am. St. Rep. 318]; Morrow v. State, 57 Miss. 836).

Whether or not this rule which compels the people to call such witnesses permits their impeachment by showing prior contradictory statements has received the attention of the English courts. Rex v. Oldroyd, Russ. & R. C. C. 88, was decided in 1805, before it had been determined that it was the duty of the prosecution to put upon the stand as its witnesses all the observers of the transaction; and we are informed in that case that:

“ The counsel for the prosecution, at the close of their case, observed to the learned judge that they did not mean to call the mother of the prisoner, strong suspicions having fallen upon her as having been an accomplice; but the judge thought it right, in compliance with the usual practice (her name being on the back of the indictment as having been examined before the grand jury), to have her examined, which was accordingly done. The learned judge, observing, upon this .examination, that the evidence given by the woman was in favor of the prisoner, and materially different from her deposition taken before the coroner, thought it proper to have the deposition read, for the purpose of affecting the credit of her testimony so given on the trial.”

This ruling was upheld when the case received the consideration of all the judges, and we are told:

“ The determination of the judges was confined to the right of a judge to call for a witness’ deposition in order to impeach the credit of a witness who on the trial should contradict what she had before deposed; but Lord Ellen-borough, and Mansfield, C. J., thought the prosecutor had the same right.”

Says Baron Bolland, in the case of Wright v. Beckett, 1 Moody & R. 414, decided in 1834, in speaking of this case (page 431):

“It is to be observed that the determination of the judges was confined to the right of a judge to call for a witness’ deposition in order to impeach the credit of such witness, who on the trial contradicts what he had before deposed. * * * It is clear that the counsel for the prosecutor did not consider that he possessed such right, or he would have called the witness at all events, and availed himself of her evidence if favorable, knowing that he could destroy it if she gave evidence contrary to that which she had given before the coroner, by putting in her deposition. To do this, it is, I think, clear that the counsel had no right.”

It is interesting, and perhaps material to the subject under discussion in this opinion, to note that, in the case of Wright v. Beckett, Lord Denman, Chief Justice of the Court of King’s Bench, affirmed, and Baron Bolland denied, that in a civil case, where a witness gives evidence destructive to the case which he was called to prove, the party calling him may, in order to neutralize his evidence, show that he had, before the trial, given to the attorney an account of the transaction entirely different from that sworn to by him.

In Reg. v. Ball, decided in 1839, reported in 8 C. & P., at page 745 (the same volume in which aré reported the decisions upon which this court relied in deciding that the people must call as witnesses all the observers of the transaction), defendant, Ball, was indicted for wounding Joseph Newey, with intent to murder him. The whole case turned on the identity of defendant, Ball, whom the prosecutor had never seen before the evening of the assault, when he swore that he had seen him in the beershop of Mrs. Sarah Turner. The prosecution called Sarah Turner, who contradicted the prosecutor as to the fact of defendant, Ball, having been at her house on the evening in question. This witness kept a beershop, and was intimately acquainted with the defendant and his accomplices, and had been informed against by the prosecutor for keeping her house open at improper hours. In order to do away with the effect of the evidence of this witness, which, if believed, disproved the whole case of the prosecution, it was proposed by the counsel for the prosecution to prove that the statements made by the witness before the magistrate were wholly inconsistent with the account given at the trial. Erskine, J., after having conferred with Mr. Justice Patteson, whom all lawyers will recognize as one of the great English judges, rejected the evidence, saying, “You cannot put in evidence for the purpose of discrediting your own witness.”

In the case of Reg. v. Stroner, 1 C. & K. 650 (this is one of the cases upon which this court relied in Maher v. People as determining the common-law rule), Chief Baron Pollock required the prosecution to put on the witness stand two witnesses who were in attendance as witnesses for the defendant, saying, “They must both be called as witnesses for the prosecution, but I shall allow counsel for the prosecution every latitude in examining them.”

Thus far do the English cases go. I think I am right in saying that the only case directly in point is Reg. v. Ball, and there it was held that even the deposition of a compulsory witness is not admissible for the purpose of impeachment. In my judgment, there is force in the suggestion that, when this court recognized the English rule as a part of the common law, they recognized it as declared by the English courts.

Text-writers tell us that the rule that a party shall not impeach a witness called by him, by showing prior contradictory statements, does not apply where the law compels him to call that witness. See Rap. Wit. § 213. It is believed that in every adjudication upon which this claim is based, except State v. Slack, 69 Vt. 486 (38 Atl. 311), hereinafter referred to, the party has been permitted to prove the prior statements of a subscribing witness to a-deed or will, to contradict his testimony that the grantor or testator lacked competency to execute the instrument. See Williams v. Walker, 2 Rich. Eq. 291 (46 Am. Dec. 53); Harden v. Hays, 9 Pa. St. 151; Dennett v. Dow, 17 Me. 19; Shorey v. Hussey, 32 Me. 579; Whitman v. Morey, 63 N. H. 448 (2 Atl. 899); Thornton’s Ex’rs v. Thornton’s Heirs, 39 Vt. 122. The exception recognized by these authorities is eminently just. A witness, by solemnly attesting an instrument, certifies to the competency of its maker, and thereby furnishes evidence of its legal execution. If the witness dies or cannot be procured, proof of his signature furnishes sufficient legal evidence. Abbott v. Abbott, 41 Mich., at page 543 (2 N. W. 810); Orser v. Orser, 24 N. Y. 52, 53; In re Alpaugh’s Will, 23 N. J. Eq., at page 508; 3 Redf. Wills, 42. When this witness denies that the maker possessed that competency, he impeaches the evidence furnished by his own solemn act. The ends of justice are subserved, and no injustice can result from impeaching him by his own contradictory statements.

Injustice may, however, result from extending that exception to the case under consideration. The witness Pearl Arnold does not stand toward the offense charged against the defendant in the attitude that a subscribing witness stands toward a deed or will which he attests. She has made no certificate of her knowledge of defendant’s offense. She denies that she possesses any such knowledge. Defendant denies that she possesses any such knowledge. If her contradictory statements tending to prove that she does possess such knowledge, and that defendant is guilty, are admittéd, is it at all likely that the jury will use them for no other purpose than to discredit her testimony ? The minds of men are not so constituted that they will stop at that point. We are bound to know that such a statement will have a moral weight in producing a conviction of defendant’s guilt.

If the majority opinion is right, no harm was done in this" particular case, because it is asserted that the evidence in the case “ clearly establishes the fact that he [defendant] had sexual intercourse with her [Pearl Arnold], and that he was the father of the child.” If it were material to this discussion, I should endeavor to show that the evidence in this case was not so conclusive that we can say, as a matter of law, that, without giving an improper weight to this testimony, which I am trying to show was erroneously admitted, the jury was bound to convict. Granting, however, that it is true, we must not forget that the rule we are declaring' will be a rule for all future cases, and that it may apply to cases in which innocent men are charged with crime.

We will assume, as we may, that an innocent person is charged with crime; that another, one of degraded character, possessing no knowledge whatever of defendant’s guilt, has nevertheless falsely stated that he had such knowledge. This person has no right whatever to be a witness on the trial, and defendant does not call him. But the prosecution does, and, after he has truthfully denied knowledge of any fact indicating defendant’s guilt, other witnesses, for the avowed purpose of impeachment, testify to his ex parte contradictory statements, indicating such guilt. If this practice were adopted in such a case, it might result in the conviction of an innocent man on the unsworn statement of one whose testimony is unworthy of belief. This fact — that the controversy may be determined by the contradictory statements of one who may have no knowledge whatever of the facts — distinguishes this case from those in which a party has been permitted to impeach subscribing witnesses, and therefore it is not, in my judgment, governed by the law applicable to them.

It is true, in the case of State v. Slack, 69 Vt. 486 (38 Atl. 311), it was decided, contrary to the case of Beg. v. Ball, that the principle which permits one to impeach a subscribing witness called by him does permit the State to impeach one of its witnesses. There the State, in its opening, called Orson Sargent as a witness to prove flight. The prisoners called him in defense to prove innocence. The State, for the purpose of discrediting his testimony, was permitted to introduce a copy of the record of his conviction for selling liquor contrary' to law. In deciding that case, the court was not compelled to consider the precise question presented in this case, namely, the injustice which might result from introducing the ex parte statements of a witness, tending to indicate defendant’s guilt, when the witness himself testifies that he has no knowledge of such guilt.

The argument, that one may impeach a witness whom the law compels him to call is persuasive, if the only reason for the rule forbidding such impeachment is that, by producing such a witness,' one vouches for his credibility. We can best determine the reason for the rule by ascertaining the purpose accomplished by it. If I am right in the claim that the recognition of this proposed exception to the rule will tend to confuse the issue, and may result in the conviction of an innocent person on unsworn testimony, it is not true that the only reason for the rule is that, by producing a witness, a party vouches for his credibility. The rule serves the purpose of simplifying the issue, and this alone is a sufficient reason for its existence. An eminent author (see Thayer’s Preliminary Treatise on Evidence) has pointed out that many of our rules of evidence, otherwise arbitrary and unreasonable, exist because they tend to direct and confine the attention of the jury to the main issue in controversy. Prof. Thayer makes clear in this treatise that our law of evidence excludes from the consideration of the jury many facts which have a remote, but material, bearing on the controversy. This is done because it is safer and wiser to risk the consequences resulting from their possibly incorrect notions of these facts, than it is those which would result from multiplying and confusing the issues.

Under our practice, the prosecution is not so bound by the testimony of any witness that it may not contradict him respecting any material fact; and it may, for the purpose of inducing a witness to change his testimony, call his attention either to his testimony on the preliminary examination or to his affidavit. See People v. Case, 105 Mich. 92 (62 N. W. 1017); People v. Gillespie, 111 Mich. 241 (69 N. W. 490). It may be, as perhaps this controversy proves, that the cause of justice might sometimes be advanced if a witness could be impeached by proving prior contradictory statements. While it is a conclusive answer to this argument to say that the court is powerless to change the law, which, in my judgment, as already shown, excludes such testimony, the foregoing considerations indicate that, if the law were changed to do justice in this case, it would result in great injustice in other cases.

I think, therefore, that the conviction should be set aside, and a new trial ordered.

Moore, J., concurred with Carpenter, J.


author: Per Curiam.

text:
    THORNTON v. BOARD OF SUPERVISORS OF GRATIOT COUNTY.
    Mandamus — Boards of Supervisors — Claim for Boarding Jurors.
    On mandarrvus to compel a board of supervisors to allow a bill for the board of jurors, a return alleging that the bill as presented was exorbitant, and that the same had been allowed at a reasonable sum, is conclusive, where no issue is joined thereon.

      Certiorari to Gratiot; Stone, J.
    Submitted September 17, 1902.
    (Calendar No. 19,416.)
    Decided October 15, 1902.

      Mandamus by Lue A. Thornton and Harry De Golia to compel the board of supervisors of Gratiot county to allow a bill for the board of certain jurors. From an order denying the writ, relators bring certiorari.

    Affirmed.

      John T. Matheios, for relators.

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

The relators, hotel keepers, applied to the circuit court for a mandamus to compel the board of supervisors of Gratiot county to allow a bill of $420 for board and lodging furnished to jurors while engaged in the trial of a cause in said court. The board answered the order to show cause, alleging 'that they had considered the claim, and found the charge to be exorbitant, and allowed the claim at $210, and that such sum was .reasonable compensation. Issue was not joined upon this question, and the writ was denied. The case is before us upon certiorari. The return is conclusive. We cannot determine the question of fact.

Order affirmed, with costs.


author: Montgomery, J.

text:
    HARMON v. WALKER.
    1. Bankruptcy — Fraudulent Preference — What Constitutes.
    To invalidate a payment of an antecedent debt as a preference under the bankruptcy act, the person receiving it must have had reasonable cause to believe the debtor to be insolvent, — i. e., not possessed of sufficient property to pay his debts; circumstances giving rise to a mere suspicion of insolvency being insufficient.
    2. Same — Payment to Attorney — Question for Jury.
    Whether an attorney for a banking firm, in receiving payment for his services from the bank on the day before its suspension, and after it had failed, to his knowledge, to meet checks drawn upon it, had reasonable cause to believe the bank insolvent, held, a question for the jury.
    3. Evidence — Value of Property — Auction Sale.
    The amount for which property sold at public auction is some evidence of its value.
    Error to Wayne; Rohnert, J.
    Submitted June 5, 1902.
    (Docket No. 18.)
    Decided October 28, 1902.

      Assumpsit by Henry A. Harmon, trustee in bankruptcy of Albert Ives, Butler Ives, and Albert Ives, Jr., copartners as A. Ives & Sons, against Bryant Walker and Hinton E. Spalding, copartners as Walker & Spalding, to recover an alleged preferential payment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Thomas A. IE. Weadoolc, for appellant.

      Elliott G. Stevenson, for appellees.
   Montgomery, J.

This action is brought by Henry A. Harmon, as trustee in bankruptcy of the banking firm of A. Ives & Sons, composed of Albert Ives, Butler Ives, and Albert Ives, Jr., to recover an alleged preferential payment of $750, made to Mr. Spalding on the 8th of September, 1900. The firm closed its doors on the 10th of September, 1900, and the members were adjudicated bankrupts on their voluntary petition on the 11th of that month. On the 8th of September, in the forenoon, a check was given to the defendant firm, under the circumstances hereinafter stated, for the sum of $750, and it is to recover the amount represented by this check that the present action is brought. At the close of the testimony the learned circuit judge directed a verdict for the defendants.

The bankruptcy act of 1898 (30 U. S. Stat. p. 544) provides that ‘ ‘ a person shall be deemed insolvent * * * whenever the aggregate of his property * * * shall not, at a fair valuation, be sufficient in amount to pay his debts” (chapter 1, § 1, subd. 3 5); and further provides (chapter 6; § 606) that if a preference is given within four months of the filing of the petition in bankruptcy, and the person receiving it “ shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value.” A further provision (section 60a) is that a person is deemed to have given a preference if, being insolvent, he has made a transfer of any of his property, the effect of which will enable one of his creditors to obtain a greater percentage of his debt than other creditors of the same class.

The learned circuit judge laid down the correct rule of law in deciding the case, the only question being whether a correct application of the law was made to the case in hand. The court stated the law to be that insolvency exists only when there are insufficient assets, at a fair valuation, — at a fair market value, — to meet the liabilities which then exist, and that a payment can only be considered a preferential payment when the person to whom it is made has reasonable cause to believe that this condition of insolvency existed at the time the payment was so made; that information as to facts which create a suspicion is not enough to charge the person receiving the payment under this statute. We think this view of the law of the case is sustained by Duncan v. Landis, 45 C. C. A. 666, 106 Fed. 839; Coll. Bankr. (3d Ed.) 345; Grant v. Bank, 97 U. S. 80; Stucky v. Bank, 108 U. S. 74 (2 Sup. Ct. 219); In re Eggert, 98 Fed. 843; Id., 43 C. C. A. 1, 102 Fed. 735.

But we are unable to agree with the conclusion of the circuit judge that there was no testimony from which the jury might justly have drawn the inference that Mr. Spalding, at the time he received this payment, had reasonable cause to believe the Iveses insolvent. In brief, the testimony was this: First. The Iveses were in fact insolvent. Second. Mr. Spalding had been the attorney of the Iveses, concerned in looking after their claim against one Michell, which was for a large amount; and, while he had collected something over*$31,000 of this sum, there was still a large amount owing to the Iveses. In addition to .this, it appeared that in May, 1900, Mr. Spalding acted as attorney in the examination of an abstract and drafting a mortgage given to the State Bank for $25,000 upon property of Albert Ives, Jr., who testified that, while the property mortgaged was his, his brother, Butler Ives, did all the business, and that he (Albert Ives, Jr.) simply signed the papers. This mortgage was in fact given in the interest of the banking firm, and it is not an unfair inference to be drawn by a jury that Mr. Spalding, who was the attorney of the firm, knew this fact. The testimony as to the giving of the check was given by Butler Ives, who testified that on the 8th of September, which was Saturday, checks had been drawn upon the bank in various sums, which he had allowed to go back without payment; that in this dilemma he sent for Mr. Spalding; that Mr. Spalding was the attorney of the bank at that time, and was attending to their business; that he said to- Spalding that he had let some checks go back, and did not know whether there would be any trouble about it, — did not think there would be, because Saturday afternoon was a half-holiday,- — but, if any trouble was made, he wanted him to act. He does not recollect what Spalding said to that, but, after they got through with that talk, Spalding wanted to know if he (Ives) could give him (Spalding) a check for what the bank owed him; that Ives inquired how much it was, and was told $750, and asked what it was for, and was told it was for services; that he thereupon drew the check in question, and gave it to Spalding, who on the same day received the money on it.

We think the inference to be drawn from this transaction as to whether Spalding had reason to believe the firm insolvent is an inference which should be drawn by the jury, and not by the court; and the cases cited by counsel for the defendants in no way militate against this view. The case of Grant v. Bank, supra, is a chancery case, determined on its facts. The court simply determined on the testimony in that case that the creditor had not reason to believe the bank insolvent. The case of Stucky v. Bank, supra, was a case of like character, which simply followed Grant v. Bank. In Re Eggert, which was first reported in 98 Fed. 843, it appears that there was a distinct finding, based on evidence, that the creditor had no knowledge of the fact that the bankrupt was insolvent, and had no reasonable cause to believe that it was intended by the transfer to give a preference. It was held — quite in line with the authorities — that, to constitute a voidable preference, the creditor must have reasonable cause to believe the debtor to be insolvent in fact, as a foundation for a reasonable cause to believe that an unlawful preference is intended. In the same case on review before the court of appeals (43 C. C. A. 1, 102 Fed. 735) this finding was adverted to, and it was said:

“The action of an ordinarily prudent man under given circumstances is necessarily a question of fact, rather than one of law. We are bound' by the finding of the court below.”

And the opinion concludes :

‘ ‘ Being unable to say, as a conclusion of law, that mere knowledge that the debtor was behind in his payments puts the creditor upon inquiry, and charges him with notice of the facts which such inquiry might disclose, and being bound by the facts found by the court below, we are constrained to deny the petition.”

This is far from saying that testimony of the character given in the present case is not sufficient for the consideration of the jury as bearing upon the question of whether the creditor has reasonable cause to believe in the insolvency of his debtor.

One other ruling should be adverted to. Plaintiff offered to show what certain property brought when offered at public auction. This was excluded, but, we think, was competent, under the holding in Smith v. Mitchell, 12 Mich. 180.

Judgment will be reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    FREEMAN v. PERE MARQUETTE RAILROAD CO.
    Railroads — Injury to Passenger on Freight Train — Contributory Negligence.
    One who enters the caboose of a freight train to take passage thereon, and, knowing that the trainmen are still engaged in switching, takes his seat in a loose chair, instead of one of the fixed seats provided for .passengers, is guilty of such contributory negligence as will prevent a recovery for inj uries received by being thrown from the chair by the collision of a car with the caboose.
    Error to Ionia; Davis, J.
    Submitted June 6, 1902.
    (Docket No. 30.)
    Decided October 28, 1902.
    Case by Alonzo O. Freeman against the Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frederick W. Stevens ( Charles McPherson, of counsel ), for appellant.

      Chaddock & Scully, for appellee.
   Montgomery, J.

This is an action for negligent injury to a passenger, in which the plaintiff recovered a verdict and judgment of $200, and defendant brings error.

The plaintiff became a passenger in a caboose attached to a freight train. Before entering the caboose, he accepted and signed a ticket in which he agreed to exercise the highest degree of care to protect himself from injury, and agreed, if injured notwithstanding such care, to make no claim against the company. The defendant, however, does not, in the brief filed in this court, rely upon this contract as conclusive of plaintiff’s rights; but it is insisted that the plaintiff’s testimony, taken as a whole, shows that he was guilty of contributory negligence, and that a verdict should have been directed for defendant.

The testimony of the plaintiff tends to show that, when he entered the caboose, the front door of the caboose stood open; that he then knew that the train crew was still engaged in switching, and that cars were likely to be brought in contact with the caboose with greater or less force; that there was a chair in the caboose, not fastened down, and that there were abundant seats which were fastened solid; that this chair was the chair provided for the conductor, and for use in connection with the table in one corner of the caboose, provided for the conductor for making his memoranda upon; that, instead of taking one of the regular seats provided for passengers, plaintiff took a seat in this chair, facing thp front door, and awaited events; that he leaned over to sneeze, holding his head between his two hands, and just at this critical moment the collision occurred, threw him against the door, and caused the injuries complained of.

So far as the contact of the car with the caboose is concerned, and the resulting jar, it may be said that it was the expected which happened. It is therefore a question of law as to whether, with this knowledge, it was the exercise of common prudence to take this loose seat, which was certain to be thrown a greater or less distance by any jar which might occur,.instead of taking the fixed seats which were provided for passengers. There is no question of ample.room in the seats, as plaintiff was the only passenger. The case of Norfolk, etc., R. Co. v. Ferguson, 79 Va. 241, is like this in principle. It was there held that it was contributory negligence, as matter of law, for a passenger on a freight train to take a chair near an open door in a caboose, instead of the fixed seat which was provided for passengers. So, in Harris v. Railroad Co., 89 Mo. 233 (1 S. W. 325, 58 Am. Rep. 111), it was held that a plaintiff who knew, or by the exercise of ordinary care could have known, that' the freight train upon which he was a passenger in the caboose had stopped to do switching, and that part of the train was likely to be backed against the part to which the caboose was attached, and who, without paying any attention to whether the cars were approaching or not, left his seat and stood up in the car, was guilty of such contributory negligence as barred recovery. A similar rule was laid down in Smith v. Railroad Co., 99 N. C. 241 (5 S. E. 896), where the plaintiff was sitting on the arm of á seat when he had every reason to expect a sudden jolt or shock from the backing of one portion of the train against another.

Plaintiff relies upon the case of Moore v. Railroad Co., which was twice before the court, and is reported in 115 Mich. 103 (72 N. W. 1112), and again in 119 Mich. 613 (78 N. W. 666), and upon the case of Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26). Neither case is authority for the plaintiff’s recovery in the present case. In the Moore Case the collision occurred before the plaintiff had an opportunity to occupy a seat in the car. The collision occurred when he was in the act of sitting down. In that case, however, the rule was recognized that one who takes passage on such a train is presumed to understand that the cars must be coupled and uncoupled and shifted in the course of the yard work at the various stations, and that jars, jolts, jerks, and concussions are incident to the ordinary management, and that these necessarily affect the equilibrium of persons standing in the car. Applying that rule to the present case, it may be added that such jars and jolts would be known by the passenger to necessarily cause some change in position in the loose chair occupied by him. In Stoody v. Railway Co. it was held that the plaintiff was not guilty of contributory negligence in entering the car and taking his seat, although the rest of the train was then backing towards him. In that case it appeared that he had sufficient time to enter the seat and brace himself in the seat to avoid the jar, — a very different-measure of precaution than taking a seat in a loose chair, facing an open door, as was done in the present case.

We are constrained to hold that, as matter of law, plaintiff was not in the present case in the exercise of due •care, and the judgment will be reversed, and a new trial ■ordered.

Hooker, C. J., Moore and Grant, JJ., concurred.


author: Grant, J.

text:
    NEWTON v. AUDITOR GENERAL.
    1. Tax Sale — Decebe—Amount—Validity—Appeal.
    The provision of section 66 of the general tax law (1 Comp. Laws, § 3889), requiring the amount decreed against the several parcels of land in a proceeding by the auditor general to be entered in the column of the tax record so entitled, does not apply to a decree made by the Supreme Court on appeal, but if the amount is clearly ascertainable from the decree, taken in connection with the tax record, to which it refers, a sale thereunder is valid.

      2. Same — Refunding—Res Judicata — Parties.
    An order declaring a tax deed void on application by the holder thereof for a writ of assistance is not conclusive as to the right of such holder to. have the amount paid by him refunded by the auditor general under section 73 of the tax law, the auditor not having been a party to such proceeding.

      Mandamus by Isaac P. Newton to compel Perry P. Powers, auditor general, to refund the amount paid on the purchase of certain State tax lands.
    Submitted October 7, 1902.
    (Calendar No. 19,410.)
    Writ denied October 28, 1902.
    The circuit court for the county of Muskegon held certain assessments for taxes to be void, and dismissed the auditor general’s petition. The case was appealed to this court, and the decree of the court below reversed. Auditor General v. Hutchinson, 113 Mich. 245 (71 N. W. 514). The original tax record stated the amount of the several taxes under the appropriate headings, and under heading No. 13, entitled “Aggregate,” was stated the total amount of the taxes. Column No. 14, headed “Amount Decreed against Lands,” contained no amount, and none could be there entered until the decree ordering a sale was made, and no such decree was made by the court below. This court affirmed the validity of the taxes, and entered a decree “for the amount of taxes, interest, collection fee, and charges set down opposite the respective parcels, together with interest thereon from the 7th day of December, 1896, to date of sale, at 8 per cent, per annum.” Pursuant to this decree the auditor general prepared a supplemental tax record for the annual sale to be held on May 3, 1898, identical with the original, except that under the heading “14A,” headed “Interest December 7, 1896, to May 3, 1898,” was inserted the amount of interest, and under heading “14B,” “Amount as Decreed by Supreme Court,” was entered the total amount due at time of sale. The lands were duly sold, bid in by the State, and some of them subsequently sold to the relator. Notice was given by him as provided by statute to the original owner to pay the taxes within the time specified therein, or the decree would be conclusive upon him. He refused to pay. In due time relator applied to the circuit court for the county of Muskegon for a writ of assistance, which that court denied, holding the decree of this court to be void because the amounts specified in the supplemental tax record, “ 14A” and “ 14B,” were not contained in the decree of the court. The relator then applied to the respondent to have the amount of the taxes he had paid refunded. The respondent refused. The relator thereupon filed a petition in this court for the writ of mandamus to compel such action on the part of the respondent.

      Dan T. Chamberlain, for relator.

      Horace M. Oren, Attorney General (Charles W. McGill, of counsel), for respondent.
   Grant, J.

(after stating the facts). 1. The sale was made pursuant to the decree of this court, which was definite as to dates and amounts. The items and the amount of the taxes were specifically stated and entered in the tax record, which was held valid. All that remained for the officer to do in making the sale was to add interest upon the “Aggregate,” which appeared under the heading “13.” The order of the circuit court is a virtual annulment of the decree of this court. The objection made against the sale is purely technical, and has no merit. The circuit court should have issued the writ of assistance. Morgan v. Tweddle, 119 Mich. 350 (78 N. W. 121), and First Baptist Church of Bay City v. Roberts, 130 Mich. 704 (79 N. W. 910), do not apply. Those cases involve that provision of section 66 of the general tax law (1 Comp. Laws, § 3889) which requires the register of the circuit court to enter opposite each parcel of land, under the heading ‘ ‘Amount Decreed against Lands,” the total amount of the taxes held 'to be valid. That provision does not apply to sales under decrees in this court.

3. It is urged that the order of the court in denying the writ of assistance and holding the sale void is reviewable only upon appeal. That may be the rule as between the relator and the original owner of the land, who were the sole parties to the writ of. assistance, but it does not apply to the auditor general. He was not made a party to it, and is entitled to his day in court, which he did not have until the relator commenced these proceedings. The relator was the only one adversely affected by the order denying the writ. He alone had the power to appeal, but chose to rest content with the order. If he desired to bind the auditor general by that proceeding, he should have made him a party.

The writ is denied, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Moore, J.

text:
    NIEDERHAUSER v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    1. Settlement — Fraud—Rescission.
    One who seeks to rescind a settlement for fraud or mistake must first place the other party in statu quo.

    2. Same — Tender—Sufficiency.
    Plaintiff, after settling a claim against defendant for personal injuries, went with his attorney to defendant’s office, where they notified defendant’s agent that they repudiated the settlement on the ground of fraud, and inquired if he would take back the money paid plaintiff. On receiving a negative reply they started to leave, when the agent expressed a doubt as to their having any money, and asked to see it. Though they had arranged to obtain the money, they did not in fact have it with them, and they withdrew without making any direct answer to the agent’s request. Held, that there was no such tender as would effect a rescission of the settlement and# enable plaintiff to sue for the injuries.
    Error to Wayne; Hosmer, J.
    Submitted October 8, 1902.
    (Docket No. 20.)
    Decided October 28, 1902.

      Case by John Niederhauser against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Moore & Moore (Edwin O. Bolton and Henry B. Shaiv, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark and Henry L. Lyster, for appellee.
   Moore, J.

This suit was brought for the purpose of recovering for injuries received by plaintiff while a passenger on a street car owned by defendant. The circuit judge directed a verdict in favor of defendant. The case is brought here by writ of error.

It is the contention of plaintiff that he had a claim against defendant for injuries received by him October 26, 1899; that on November 1, 1899, he "made a written agreement with Mr. Bolton, a lawyer, to collect said claim, and assigned him one-half thereof in consideration of his services. He also claims that Mr. Bolton had negotiations with the representatives of the company for a settlement, and was offered $1,300 unconditionally for a settlement of the claim, and $2,000 if certain conditions existed. Defendant denied that any such offers were made. ' It is the further claim of plaintiff that, by means of false representations and concealments of what had occurred between his attorney and the representatives of the company, he was induced on December 5, 1899, to settle his claim in full for $800. Defendant denies there, was any fraud used to bring about this settlement, but insists plaintiff voluntarily and freely made it. It is the claim of plaintiff that, when he learned from Mr. Bolton the exact facts, he repudiated the settlement. Afterwards this suit was brought, and, as before stated, a verdict was directed by the circuit judge, who was of the opinion that no fraud had been shown in making the settlement.

A great many questions are raised by counsel which we do not deem it necessary to discuss, as we think plaintiff has failed to put himself in a position to maintain this suit. The law is well settled that, if one seeks to rescind a settlement on the ground of fraud or mistake, he must, after discovering the fraud, place the other party in statu quo. Jewett v. Petit, 4 Mich. 508; Crippen v. Hope, 38 Mich. 344; Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Galvin v. O’Brien, 96 Mich. 483 (56 N. W. 85). Counsel claim plaintiff did this by tendering back the money to defendant, while defendant denies that any sufficient tender was made. The testimony bearing upon that point is brief, and we quote it. Plaintiff testified:

‘‘ I was never at the railway office but once. That was some day or so after I received the money. I went there with Mr. Bolton. * * *
Q. You got $800, of which you paid $150 to your physician ?
“A. Yes, sir.
Q. And you have used that $650 ?
“A. Yes, sir. * * *
“ Q. You said that you were in the street-railway office the next day with Mr. Bolton?
“A. I think it was the next day or two afterwards.
Q. What did you go down there for ?
“M. To tender the money.
Q. Who told you to do that ?
“M. Mr. Bolton.
“ Q. You were satisfied to take the money the day before, weren’t you ?
“A. I was the day before.
Q. And Mr. Bolton told you the next day to go down and pay the money back. How much of the money did you have the next day ?
“A. I think Mr. Bolton had the money.
Q. Oh, you think he had the money?
“A. I don’t know. I did not see it.
Q. Where was your money ?
“A. My money was in the bank.
Q. In the bank. You never took your money back to tender any money, did you ?
“M. They did not ask me to.
“Q. Who?
“A. Mr. Bolton.
Q. You did. not see any money with Mr. Bolton, did you?
“A. No, I did not see any.
Q. And there was no money tendered to anybody, was there ?
“A. Not that I know of or saw.
Q. No, you did not see any money tendered back, but you think Mr. Bolton had the money. How do you knqw he had the money ?
“A. Well, all I know is, he says, ‘You come with me, and,’ he says, ‘we will tender that money back.’
Q. Didn’t he tell you, too, that Mr. Hutchins would refuse the money?
“A. No, sir.
‘ ‘ Q. Did not Mr. Hutchins ask him to let him see the money ?
“A. He asked— He refused it, and as we was going out he says, ‘Let’s see your money.’ Bolton says, ‘You refused it once.’ Bolton did not show him any money, that I seen. . I think I would have seen it if he had shown any.”

Mr. Bolton’s version of what occurred is as follows:

“ Mr. Niederhauser, Mr. Hubbard, and myself went down to the Detroit Citizens’ Street-Railway Company at 12 Woodward avenue, and met Mr. Hutchins. Before going down there, we had arranged for raising money. We had arranged for tendering back to Mr. Hutchins — to the railway company — that $800, and whatever— There was a little interest, or. whatever there would be on it. I did not take the money with me. When we got to Mr. Hutchins’ office, we met Mr. Hutchins, and I told him that we repudiated that settlement; there was no settlement; that the boy had been unjustly dealt with, and the settlement was a fraud, and we came back to see if he would not take the money back. He says: ‘No, sir; it is a settlement. It is final with me, and I will not take any money back. ’ After that conversation we came back to my office. After we left Mr. Hutchins’ office, and while we were getting into the elevator- — • I think Mr. Hubbard and Mr. Niederhauser were in the elevator, and I was just getting in, and Mr. Hutchins, I think, had either stepped —there is a double doorway there — stepped in the doorway, and kind of stepped back, and he laughed, and in a sneering way he says: ‘ Ha, you fellows haven’t got any money. I never have seen the color of your money. Where is your money ? ’ I don’t remember that we made any reply at all. That is all I remember that was said. I might have said, ‘You refused it;’ something of that kind. I might have thrown back a remark at him. After that this suit was brought.”

Mr. Hutchins’ version of what occurred is as follows:

• “ Mr. Niederhauser, Mr. Bolton, and Mr. Hubbard came to my office. I met the parties in the hall. Mr. Bolton said, ‘This is Mr. Niederhauser.’ He said: ‘We have come down to tender you the money back in the Niederhauser case. Will you accept it ? ’ I said, ‘ No.’ So Mr. Hubbard had started towards the elevator. Mr. Bolton and Mr. Niederhauser were still standing near me. I then went to ask for the money, so I said, ‘Oh, wait a minute; let me see the money.’ Mr. Bolton said, ‘ Come on, Niederhauser; come on, Mederhauser,’ as he rushed off towards the elevator; ‘he said he would not accept it;’ and I said I would like to see the color of the money, and Bolton repeated it, ‘Come on, Niederhauser,’and then all got in the elevator and went away. I did not see any money. ”

While the old rule that, to make a valid tender of money, there must be produced the precise sum in current money, which must actually be offered to the person to whom the tender is made, has been modified, it is not believed a case can be found where what was done here would be regarded as a valid tender. In Chase v. Welsh, 45 Mich. 345 (7 N. W. 895), Justice Campbell, speaking for the court, said:

“No sum of money whatever was tendered, and no tender in the proper sense made at all. There was no more than a proposition or offer to pay what might be ascertained' as the proper sum; but the parties tendering had not informed themselves, and took no steps to do so beyond preparing a receipt in blank, to be filled up when the supposed judgment and interest should be figured up. This receipt purported to discharge the judgment. Prentis refused to sign it. There is some conflict as to what reason he gave, but, inasmuch as no sum of money whatever was produced or offered, all that it could have amounted to at best was a manifestation of readiness to make payment when the proper amount was figured up. This was no tender of payment.”

See, also, Engle v. Hall, 45 Mich. 57 (7 N. W. 239); Selby v. Hurd, 51 Mich; 1 (16 N. W. 180); Potts v. Plaisted, 30 Mich. 149.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    BOYNTON v. VELDMAN.
    Tenancy in Common — Purchase oe Outstanding Title — Vendor and Purchaser — Marketable Title. ,
    Complainant and B. acquired title to undivided interests in a tract orland by different instruments and at different times. No relation of trust or confidence existed between them, ancf the deed to complainant purported to convey an entire interest. At the time of complainant’s purchase there were tax titles outstanding against the premises, which he requested B. to aid in procuring. B. not only.refused to do so, but did not object when advised that complainant intended to buy the tax titles, take possession of the land, and sell it. Complainant purchased the tax titles, and subsequently sold the land on contract; the vendee entering into possession, and continuing to occupy for more than five years without interference from B., who never claimed any right to share in the benefit of complainant’s purchase. In a suit to foreclose the land contract, held, that complainant’s purchase of the tax titles did not inure to the benefit of B., and hence the defense that complainant could not give a marketable title was without merit.

    Appeal from Muskegon; Russell, J.
    Submitted October 8, 1902.
    (Docket No. 15.)
    Decided October 28, 1902.

      Bill by Milo A. Boynton against Everett Veldman, Gertie Veldman, and John Bramer to foreclose a land contract. From a decree for complainant, defendants appeal.
    Affirmed.

      O. W. Sessions, for complainant.

      Gross & Lovelace, for defendants.

      But see Ream v. Robinson, 128 Mich. 92 (87 N. W. 115).

   Moore, J.

This is a bill filed for the purpose of foreclosing a land contract. From a decree in favor of the complainant, the defendants have appealed to this court.

The bill avers the ownership of the land by the complainant; the making of a contract by complainant in February, 1896, to sell the land to Everett Veldman for the sum of $300; that Veldman, after making the land contract, moved upon the land, and still lives thereon; that, at the time the land contract was made, there were delinquent taxes upon the land for the years 1892 to 1895, inclusive; that it was agreed between complainant and Veldman that complainant should purchase said premises for said delinquent taxes at the next annual sale. It avers that, after the contract was made, said Veldman, prior to October 19, 1896, purchased said land from the. auditor general for the delinquent taxes, paying therefor $24.04, and obtained a deed, which he put upon record; that complainant did not learn of this purchase until the time of the annual tax sale in December, 1896, and when he learned of it he had an interview with Veldman, in which it was agreed that the amount paid to the auditor general by Veldman should be indorsed as a payment on the land contract. The bill further avers that in November, 1897, said Veldman and his wife made a mortgage upon said real estate for $100, running to John Bramer, who had full knowledge of the rights of said complainant; that Veldman had not made the payments according to the terms of the contract. There were other allegations in the bill, not necessary to mention. The bill then asked for a foreclosure, and that the amount of the purchase price paid by said Veldman to the auditor general might be decreed as rightly applied on the land contract.

The defendants put in an answer, in which they deny that complainant was ever the owner of said land, or that he ever made a contract with said Veldman to sell it to him, or that Veldman went into possession under the contract, and nearly every other material allegation in the bill; and they assert that the defendant Everett Veldman is the owner in fee simple of the land by virtue of his tax deeds. In such answer no offer is made to rescind the contract and relinquish possession. No affirmative relief is asked, and no claim is made for improvements, or for the repayment of the small amount of money already paid.

The case was tried in open court. Upon the trial it was made to appear very clearly, we think, that Veldman did purchase the land from complainant on contract, as alleged in the bill, and went into possession under the contract. He paid $5 down, $6 July 15th following, and no other payments except the $24.04 paid to the auditor general for delinquent taxes. The record further discloses that, when this contract was made, complainant was the owner of an undivided three-fourths, and one William H. Bell was the owner of an undivided one-fourth, of the original or government title to the lands. Complainant and Bell acquired their respective titles at different times and by different instruments. No relationship of trust or confidence existed between them. Bell has resided less than four miles from the premises for more than 20 years; has paid no attention thereto; has paid no taxes thereon; has made no objection while the Cutler & Savidge Lumber Company, the then owners of tax titles and undivided interests in the land, cut and removed the valuable timber therefrom; has refused to contribute to the payment of the taxes after being requested so to do by complainant; and has made no effort to disturb or interfere with the possession of either Veld-man or the complainant.

On December 4, 1893, complainant purchased the entire premises from the auditor general for the taxes of the years 1884 to 1891,s both inclusive. The taxes for those years had been levied, and the premises had been sold therefor, and the period of redemption therefrom had expired, and the tax titles based thereon had matured, long before complainant acquired any interest in the land. Complainant, through Veldman, has been in the actual, complete, and adverse possession thereof for more than five years, and for more than the statutory period of limitations. At the date of the contract, the taxes on the lands for the years 1892 to 1895, inclusive, were delinquent, and it was agreed between the contracting parties that complainant should bid them off in complainant’s name at the next annual tax sale, to be held at the county treasurer’s office in the following December. In violation of his agreement, and on the 19th day of October, 1896, defendant Everett Veldman purchased the lands from the auditor general for the taxes of the years 1892 and 1893, and, as a condition of such purchase, paid the taxes for 1894 and 1895. The whole amount paid by him to the auditor general was $24.04.

It is claimed by way of defense that complainant could not give a marketable title; that as he had the record title to but three-fourths of the land, and William H. Bell to one-fourth, they were tenants in common; and that Boynton’s purchase of the tax titles inured to the benefit of Bell, as well as to the benefit of Boynton. It may well be questioned whether, under the pleadings, this defense can be made; but, waiving that question, can it be said the relations between Boynton and Bell were of such a character that Boynton could not purchase the outstanding tax titles for his own benefit? We have already seen that Bell and complainant got their titles at different times and by different instruments, and, though Bell lived near the land, he paid no attention to it, and refused to contribute towards the payment of the taxes after they had become delinquent, though requested to do so by complainant. Mr. Bell not only refused to pay any portion of the taxes, but said he did not know anything about the land, and had not seen it for a quarter of a century. In connection with this refusal, he was told that complainant intended to purchase the tax titles, take possession of the land, and sell it. He not only refused to pay any part of the delinquent taxes, but did not object to what the complainant proposed to do, and has never interfered with his possession or with ttje possession of the defendant.

While it is undoubtedly the general rule that one tenant in common cannot acquire an outstanding title adverse to his co-tenant, and that the purchase of such a title inures to the benefit of all the co-tenants upon equitable contribution being made, there are well-defined and well-established exceptions to the general rule, as where the co-tenants have acquired their respective titles by different instruments and at different times, and no relationship of trust or confidence exists between them, and also where the.outstanding title has not been created or suffered to arise through the default of the purchasing co-tenant. Sands v. Davis, 40 Mich. 14, 19; Watkins v. Green, 101 Mich. 493, 497 (60 N. W. 44); Freem. Co-Ten. § 155; 2 Rice, Mod. Law Real Prop. § 410; Elston v. Piggott, 94 Ind. 14, 26; Myers v. Reed, 9 Sawy. 132, 140 (17 Fed. 401); Roberts v. Thorn, 25 Tex. 728, 736 (78 Am. Dec. 552); Miller v. Donahue, 96 Wis. 498, 509 (71 N. W. 900); Fielding v. White, (Tex. Civ. App.) 32 S. W. 1054.

Complainant and William H. Bell acquired their titles by different instruments and at different times. No relationship of trust or confidence existed between them. The deeds to complainant purported to convey to him an entire interest in the land. The tax titles acquired by complainant were not in any manner founded upon his default, because the taxes were levied, and the land sold, and the time of redemption had expired, before the complainant owned any interest in the land. Mr. Bell has never offered to, or indicated his desire to, pay part of the taxes, or to have the purchase inure to his benefit. We think the complainant is within the exception to the rule.

The decree is affirmed, with costs.

Hooker, C. J., Grant and Montgomery, JJ., concurred.