author:
Grant, J.
     Moore, J.

text:
    SMITH v. MARSH.
    Conveyances — Parol Trust — Statute of Frauds.
    A voluntary conveyance, executed without fraud or mistake, and without any request by the grantee, between whom and ' the grantor no confidential relations existed, will not be $et aside at the suit of the grantor, on the ground that it was given and accepted.under a parol trust which has not been carried out.
    Moore, J., dissenting; being of the opinion that the deed was made in pursuance of a contract, the advantages of which defendants seek to retain while repudiating its obligations.
    Appeal from Washtenaw; Bdnne, J.
    Submitted June 5, 1902.
    (Docket No. 102.)
    Decided March 23, 1903.

      Bill by Rebecca R. Smith against Mary Marsh, administratrix of the estate of Jane Lamb, deceased, James B. Lamb, Ellen Clifford, and Isabella Clifford, to set aside a deed. From a decree for complainant, defendants Lamb and Clifford appeal.
    Reversed.
    Complainant and defendants are brother and sisters, the children of James and Mary Lamb, deceased. James and Mary lived in Canada, where James owned an extensive farm. He died some time prior to 1807. Jane and Rebecca were twins. After his death his estate was settled, and the property sold and converted into money. The defendants Isabella and Ellen released all their interest in the estate of their father to their mother. Jane and Rebecca, with their mother, came to Michigan, and purchased some land, the title to which was taken in Rebecca and Jane as tenants in common. That was sold, and the land here in controversy purchased; the title being conveyed to them in the same way. On September 11, 1897, complainant executed a warranty deed of her undivided one-half of these lands to her sister Jane, who died in September, 1899. The object of this bill is the annulment of that deed. The basis for the relief prayed is found in the following allegation in paragraph 4 of the bill:
    “Your oratrix further shows that, upon the administration of the estate of her said father, she and the said deceased, Jane Lamb, received their portion of said estate; that they were twin sisters, and agreed to unite their property and to live together during the balance of their lives; that at that time your oratrix was married to said Robert Smith, and by the terms of said agreement the said Jane Lamb was to have a home in the family of your oratrix; and it was further agreed by and between your oratrix and the said Jane Lamb that the survivor of the two, as between your oratrix and the said Jane Lamb, should be entitled to the entire joint property of the said Jane Lamb and your oratrix; and it was further agreed by and between your oratrix and the said Jane Lamb that, in case your oratrix should die before the said Jane Lamb, then and in that case the said Jane Lamb should have the use, income, and profit arising from said joint estate during her life, and at her death it should go to the children of your oratrix.”
    Paragraph 17 of the bill reads as follows: "
    “Your oratrix further shows that by reason of the fact that she was born first, and because of a certain superstitious belief that, as between twins, the one who was first born would first die, and by reason of the fact that your oratrix had, to a considerable extent, lost her health, your oratrix and the said Jane Lamb, so long as she lived, were of the opinion and belief that the said Jane Lamb would certainly survive your oratrix; that by reason thereof, and by reason of the agreement aforesaid, and in order to escape the expenses and cost of the administration of her estate, and to avoid, as far as possible, litigation over the settlement of her estate,'your oratrix and the said Jane Lamb were always anxious, whenever your oratrix was in feeble health, that the title to the entire property should be in the name of Jane Lamb, and that therefore the conveyances from your oratrix to the said Jane Lamb in every instance were intended to operate simply as a will, and not as a conveyance; and therefore your oratrix avers and charges that the said paper purporting to be a deed, bearing date the 11th day of September, 1897, might and in justice and equity ought to be declared to operate as a will, and not as a conveyance of said property, and in justice and equity ought to be set aside and declared null and void.
    “Your oratrix further shows and charges that said Jane Lamb was a stronger-minded person than your oratrix, and possessed great and unbounded influence over your oratrix; that a relation of trust and confidence, to the greatest possible extent, existed between your oratrix and said Jane Lamb; that your oratrix had the utmost confidence in her said sister, and suffered her; to a large extent, to manage and control their joint business affairs; that said Jane Lamb exerted great influence over y'our oratrix, and by reason of said relation of trust and confidence, and of her superstitious belief that she would certainly die first, and in reliance upon the promise aforesaid of her said sister that, in case your oratrix would deed her interest in said property to her said sister, she, the said Jane Lamb, would, deed over said joint property to the children of your oratrix before her death, and by reason of the further inducement held out to her by her said sister that by deeding said property to said Jane Lamb, and by said Jane Lamb to the children of your oratrix, all the expenses of administration would be saved, your oratrix was induced to make said deed last aforesaid; and your oratrix is advised and believes that by reason of the premises a trust resulted to your oratrix, and that by reason thereof the title to said lands ought by this court to be decreed to be vested in your oratrix.
    “ Your oratrix further avers and charges that the undivided one-half of the real estate mentioned in said deed from said William A. Benedict and wife to the said Jane Lamb and your oratrix is the property of your oratrix by virtue of purchase from said Benedict and wife, and that, under and by virtue of the conditions of the contract mentioned in paragraph 4 of said bill of complaint, the other one-half of said real estate is also the property of your oratrix, and that the undivided one-half of the personal property, stock, tools, farming implements, utensils, and all personal property mentioned in the paper purporting to be a deed, bearing date the 11th day of September, 1897, is the property of your oratrix by virtue of her original rights in said property, and that the other undivided one-lialf of said personal property, under and by virtue of the condition and provisions of the contract mentioned in paragraph 4 of this bill of complaint, is also equitably the property of your oratrix, and might and in justice ought to be so declared and decreed by this honorable court to be.”
    The bill prays that the deed may be set aside, and that the contract above set forth shall be declared to have been performed and kept by her, and that she be decreed to be the owner in fee of the undivided one-half of said land. The answer denies all the material allegations of the bill, and interposes the statute of frauds as a defense. Proofs were taken in open court, and the learned circuit judge granted the relief prayed.
    Four witnesses were introduced by complainant, and gave testimony claimed to sustain the allegations in the bill, viz., her son, daughter, son-in-law, and the attorney who drew the deed in question. The son testified:
    “She [Jane] said I would get what she had after her death, anyway, if I stayed there. * * *

      “ Q. And it is. true that your aunt said to you, if you stayed there at home and worked on the farm, she would be responsible for your wages, and give you her farm when she got done with it ?

      “A. Yes, sir.”
    The daughter testified:
    ‘ ‘ Q. Did you know about their making a contract having an understanding and agreement what should be done with the property that was upon the farm ?

      “A. Yes; I have always understood that when mother was sick — and she was always in more or less ill health— that she would transfer her property to Miss Lamb, and at her death it was to come to her sister’s children. At one time Miss Lamb stated over that contract at our house. Those transfers that have .been read of those various interests had reference to that fact. That was the summer before she died or was killed. It was to come to my brother and myself. It was to be divided between us two.
    “ Q. Do you remember whether or not at that time anything was said as to how it was to be done, in order to avoid the expense of a will, of probate court, etc.?

      “A. She always said’she was going to deed it. * * *

      “ Q. I.call your attention to the interview at your house about six months, or such a matter, before your Aunt Jane’s death, and ask you to state what your Aunt Jane said the contract was between her and your mother in relation to this property.
    “A. Tha't they always intended to live together the rest of their days, and that Mrs. Smith’s property should be Miss Lamb’s, and at her death it should go to the children.”
    The son-in-law testified that, about six months before Jane’s death, he heard her say that at her (Jane’s) death the property “should go to my wife and James Smith. I remember her talking over that it had been deeded for that purpose.”
    The attorney who drew the deed testified:
    “I remember seeing Jane Lamb and Kebecca Smith at my office, and having a conversation with them in relation • to drawing a deed.
    ‘ ‘ Q. Did they state why they wanted a deed drawn ?
    “A. I cannot remember the exact conversation that took place at that time. I can remember the import of it. The talk between all parties at that time was concerning their both owning the property, but that they wanted it in shape that if one died the other would get it; and, in making a deed, Miss Lamb made the deed, I believe, to Rebecca Smith, and the understanding was that Rebecca was to make it back again. I think I have it reversed. I told them they would better finish the whole transaction right there, but, as á matter of fact, they did not. They did part of it. I tried to get them to finish the transaction, but she promised to come down again, and she did come down, — Miss Lamb.
    ‘ ‘ Q. They were to make each one a deed to the other ?

      “A. That was the idea.
    “ Q. And then the one who died would have the property ?

      “A. That was the understanding when they were there at the office. They wanted to leave it in shape so that the survivor would get it. •

      “ Q. You made that deed with that understanding ?

      “A. I made the deed with that understanding; yes, sir; that there would be a deed back; yes.
    “ Q. Do you remember now whether or not they talked over the fact of their living together and their owning this property, and the agreement between them that the survivor was to have the property, — it was to come to the children of Mrs. Smith ?

      “A. The talk that they had was that the one who suiwived should have the property. That was the talk at that time, and that was the intention when they made out the deed. At least, that was what they both of them told me. And this lady, Miss Lamb, came to the office after-wards to make out that deed, and I told her if she would come in we would make it right out; and she said she had to go over town, and as quick as she came back she would see to it. When she came back I was prepared to make the deed, but she did not have the description, and I did not have it, and it ran along. She said she would come right in again, but, as a matter of fact, she did not. ”
    The following facts are either conceded, or are, in my judgment, established by a clear preponderance of evidence : The money which purchased this farm came from the father of complainant and the defendants. Isabella and Ellen released their rights in the estate to their mother without any consideration. Eight thousand dollars was the purchase price of the first farm. Of this amount, $5,000 belonged to the mother. She gave it to Jane upon the agreement that Jane should take care of her during her - life. The deed was made by complainant to Jane after Rebecca was sued by one of the farm hands to recover his wages. She then stated that she was not the owner of this land; that she had no interest in it or the property thereon; that she and her husband leased it from Jane; that plaintiff could get nothing from her, as she had no property. She took no steps whatever to obtain a written statement from Jane of her alleged interest. For two years she rested upon this parol agreement on the part of her sister to convey to her. Complainant wrote letters, through her son, to her sisters and brother, after the death of Jane, in which she said nothing about this agreement. . She asked them to release their interests to her without any consideration. These letters are inconsistent with her present claim.
    Complainant’s husband died October 4, 1895. He lived with his family upon the lands owned by Jane and Rebecca until his death, worked on the farms, and had his support. His son, James, always lived at home with his mother and Jane. The daughter, Mary, was married, and did not live at home after her marriage. The daughter was appointed administratrix of Jane’s estate, and made one of the parties defendant to this suit. Her brother presented a claim of $1,800 against the estate of Jane for his labor after he became 21 years of age. To this claim his sister, the administratrix, made no defense. Complainant was cognizant of all these proceedings, and made no objection thereto.

      A. J. Sawyer & Son, for complainant.

      Lehmann & Stivers, for appellants.
   Grant, J.

(after stating the facts). 1. The purpose of this .bill is not to enforce the specific performance of the alleged parol contract stated in paragraph 4, but to set aside the deed made about 30 years afterwards in reliance upon- the existence of some such an agreement. The theory of the bill, as stated in paragraph 17, above given in full, is that, if complainant would deed her interest in the land to her sister, her sister would, deed over all said joint property to complainant’s children before her (the sister’s) death, and by reason of the further inducement held out by her sister that by so deeding the property to Jane, and by Jane’s deeding it to the children, all expenses of administration would be saved. That theory is supported by the testimony of her son and daughter and her son-in-law that the property was to be deeded to them by Jane. If the testimony of the attorney who drew the deed should be construed into an agreement that in some way, unexplained, deeds would be made by each to the other in such a manner that the property would go to the survivor, and complainant executed her part of that contract by making the deed, and Jane refused or neglected to execute a deed on her part to carry out the agreement, we are not prepared to say that complainant might not be entitled to relief, by a proper bill, on the ground of a contract executed on her part for a valid consideration. But such is not the theory of the bill, nor does such an arrangement accord with the testimony of complainant’s children and son-in-law. Nor do the learned counsel for complainant base complainant’s rights upon any such arrangement. They base it solely upon the alleged confidential relation that existed between the two sisters. They say:

“Transactions between parties occupying relations of trust and confidence will be carefully scrutinized, and no advantage will be permitted to be taken of the trust relation, and a deed taken by one occupying such a relation should be canceled.”

And they cite authorities claimed to sustain this principle. They assert that J ane was the stronger minded of the two, and that she had great and unbounded influence over Rebecca. In this way they seek to avoid the effect of the statute of frauds, which requires every conveyance of land to be in writing. Section 9509, 3 Comp. Laws. The circuit judge evidently recognized the difficulty to thus avoid the statute, for in his opinion he says:

“I am not certain but the bill ought to be dismissed. * * * The peculiar hardships of the case are such that I have traversed the territory of equity jurisprudence to see, if possible, I might not find some channel of relief. * * * The conduct and manipulation of their joint property display extreme childishness, superstition, and ignorance. It hardly seems just to hold them to any legal accountability. All of their action is characterized by extreme folly. * * * The statute of frauds now confronts the complainant with dangerous menace. If it is to control in the case, then, instead of operating as a protection, it will serve the purpose of perpetrating a fraud and depriving the complainant of her just right.”

He further found that there was no fraud or mistake. There being no fraud or mistake, it follows that the conveyance was voluntary. We do not think there is any evidence in the case to show that complainant made this deed to Jane at even the request of the latter. She was not persuaded or influenced by Jane, to execute it. Rebecca was as strong-minded as was Jane, and evidently had as much control of affairs as did Jane. We find that there were no confidential relations such as to avoid this deed as not within the statute of frauds. The statute is a wise and beneficent law. It cannot be frittered away because the parties to deeds are ignorant and do not fully understand their rights. It must govern the conduct of the learned and the unlearned alike. We think this case is controlled by the principle stated in Pierson v. Conley, 95 Mich. 619 (55 N. W. 387); Kelsey v. McDonald, 76 Mich. 189 (42 N. W. 1103); McCarn v. Wilcox, 106 Mich. 64 (63 N. W. 978); Shafter v. Huntington, 53 Mich. 310 (19 N. W. 11). Many other cases of the same import might be cited. Courts cannot negative the statute because in an individual case it operates as a hardship.

2. We cannot, however, adopt the conclusion reached by the circuit judge that this land, “in morals and justice,” belongs to complainant. In the distribution of the estate she is entitled to one-fourth of it. The money, or at least most of it, with which it was purchased, came from the father and mother of all these parties. Complainant has lived out of it for more than 30 years, and has reared her family upon its proceeds. Two of the defendants released all their interest to their mother, and all they were entitled to is invested in this land. We can see no great injustice in the fact that all must share equally.

Decree reversed, and the bill dismissed, with costs of both courts.

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

Moore, J.

(dissenting). Rebecca R. Smith, James B. Lamb, Ellen Clifford, and Isabella Clifford are brother and sisters, and the only surviving heirs of Jane Lamb, deceased. Rebecca R. Smith and Jane Lamb were twins. At the time Jane Lamb died, the record title to certain real estate was in her. The bill is filed for the purpose of having the title to an undivided one-half of the property decreed to be in complainant. The circuit judge granted the prayer of the bill. The defendants have brought the case here by appeal.

The record is long. Some testimony was taken that is incompetent, some that is immaterial, and some that is unreliable. Among other testimony offered by complainant is a deed of a farm purchased in 1867, taken in the name of the complainant and her twin sister, the deceased, Jane Lamb. This farm was sold, and another purchased with the proceeds, in 1871; the deed running to the complainant and her sister Jane. It is also made to appear that in 1873, when complainant wap in ill health, she conveyed her interest in the real estate to her sister Jane; whoafterwards reconveyed an undivided one-half of it back to Rebecca. In 1897 Rebecca again conveyed this land to her sister Jane, and the record title remained in her when she was killed upon the railroad. I have not overlooked the claim of defendants that these, conveyances were made to avoid paying debts, but, in view of the small amount of debts, I do not attach much importance to this claim. The lawyer who drew the last deed from Rebecca to Jane testified, in substance:

“ I remember seeing Jane Lamb and Rebecca Smith at my office, and having a conversation with them in relation to drawing a deed.
Q. Did they state why they wanted a deed drawn? * * *
“A. I cannot remember the exact conversation that took place at that time. I can remember the import of it. The talk between all parties at that time was concerning their both owning the property, but that they wanted it in shape that if one died the other would get it. * * * I told them they would better finish the whole transaction right there, but, as a matter of fact, they did not. They did part of it. I tried to get them to finish the transaction, but she promised to come down again, and she did come down,- — Miss Lamb.
Q. They were to make each one a deed to the other ?
“A. That was the idea.
Q. And then the one who died would have the property?
“A. That was the understanding when they were there at the office. They wanted to leave it in shape so that the survivor would get it.
Q. You made that deed with that understanding ?
“A. I made the deed with that understanding; yes, sir; that there would be a deed back; yes. * * *
Q. Do you remember now whether or not they talked over the fact of their living together and their owning this property, and the agreement between them that the survivor was to have the property, — it was to come to the children of Mrs. Smith ? * * *
“A. The talk that they had was that the one who survived should have the property. That was the talk at that time, and that was the intention when they made out the deed. At least, that was what they both of them told me. And this lady, Miss Lamb, came to the office after-wards to make out that deed, and I told her if she would come in we would make it right out; and she sa.id she had to go over town, and as quick as she came back she would see to it. When she came back I was prepared to make the deed, but she did not have the description, and I did not have it, and it ran along. She said she would come right in again, but, as a matter of fact, she did not.
Q. I hand you paper [deed from complainant to Jane Lamb], and ask you to look upon it and tell me whether that is the paper you made at that time for these people ?
“A. Yes; this is the instrument.”

No other consideration passed. The complainant continued to reside on the farm, and still resides there.

After sifting all the testimony,' and eliminating that which ought not to have weight, I am satisfied the circuit judge was justified in finding:

“ That Rebecca Smith and Jane Lamb were essentially one, in thought, interest, and, action. They lived for each other, and in rare intimacy. * * * The present lamentable condition of the complainant is due to the sudden and unexpected death of Jane Lamb., * * * That, in morals and justice, Rebecca Smith owns at least one-half of the property in question in the case. It was purchased with her money. It was never given away or sold by her. She never parted with the possession of it. She never intended to surrender it, except in the event of her death before the death of her sister. Certainly Jane Lamb did not take the title with any thought or intention of holding it as against Rebecca Smith. It was her purpose to restore it to its rightful owner.”

Does the statute of frauds stand in the way of affirming this decree, as claimed by the solicitors of defendants ? The statute referred to is section 9509, 3 Comp. Laws, which provides:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.”

The case is not free from difficulty. This is not a bill asking that the representatives of Miss Lamb be required to carry out her oral contract. The complainant does not seek to acquire interests in the lands by reason of an oral contract. The bill sets out all the facts, showing that the only consideration for the making of the deed by the complainant was' the agreement of Miss Lamb, which has not been executed, and that there has been an entire failure of consideration for the making of the deed, and asking that the deed made by the complainant be canceled, and the record title be restored to her. The defendants are not invoking the aid of the statute simply to avoid the necessity of complying with the contract made by Jane Lamb, but they seek to use it in such a way as to repudiate the contract, and at the same time retain the title to the land which was conveyed by the complainant in reliance upon the contract. If the facts are as stated by the lawyer who drew the deed, if, the next day after it was obtained, Miss Lamb had refused to carry out her part of the agreement, and insisted she was the absolute owner of the land, can there be any doubt about the right of a court to grant the complainant relief ? Does the fact that Miss Lamb died before carrying out her agreement prevent the court granting relief ? Do the heirs of Miss Lamb' stand in any better position than she ?

In Browne, Stat. Frauds (5th Ed.), 145, in discussing the effect of the statute of frauds, it is said:

“A party, however, who has paid money in fulfillment of a verbal contract, which the other refuses or becomes unable to carry out, may recover it in an action for money had and received; he may also recover property, or its value, delivered in the same way, by any suitable proceeding,” citing a large number of cases.

In Kilbourne v. Wiley, 124 Mich. 370 (83 N. W. 99), there is a discussion of the statute of frauds, where a solicitor sought to enforce an oral agreement that he should have a lien upon land for the value of his services in clearing up the title. The court quoted with approval from Huxley v. Rice, 40 Mich. 73, as follows:

‘“It is the settled doctrine of the court that, where a conveyance is obtained for ends which it regards as fraudulent, or under circumstances it considers as fraudulent or oppressive, by instant or immediate consequence, the party deriving title under it will be converted into a trustee, in case that construction is needful for the purpose of administering adequate relief; and the setting up the statute against frauds by the party guilty of the fraud or misconduct, in order to bar the court from effective interference with his wrong-doing, will not hinder it from forcing on his conscience this character, as a means to baffle his injustice or its effects. 2 Comp. Laws 1871, §§ 4692, 4693; 1 &tory, Eq. Jur. §§ 330, 333; 2 Story, Eq. Jur. §§ 1254, 1265; 1 Spence, Eq. Jur. 511; 2 Spence, Eq. Jur. 194, 294, et seg.; Hill, Trustees, 144; Mestaer v. Gillespie, 11 Ves. 621; Pickett v. Loggon, 14 Ves. 215, 234; Barnesly v. Powel, 1 Ves. Sr. 284, 289; Young v. Peachy, 2 Atk. 254, 257; Brown v. Lynch, 1 Paige, 147; Hutchins v. Lee, 1 Atk. 447; Wolford v. Herrington, 74 Pa. St. 311 (15 Am. Rep. 548); Gregory v. Williams, 3 Mer. 582.’

“See, also, Miller v. Aldrich, 31 Mich. 408.”

In Nugent v. Teachout, 67 Mich. 571 (35 N. W. 254), Nugent conveyed to Teachout 40 acres of land. The latter agreed orally to convey, as part payment for the land conveyed to him, an acre of land, and the house thereon. After he got the deed, Teachout not only refused to deed the acre of land, but sold it to a third party. Nugent sued Teachout. In holding that Nugent cbuld recover, the court said:

“But it must be remembered that this promise on the part of the defendant to convey the Cadillac property in part payment of the lands received by him was an oral one, and therefore within the statute of frauds, and one that he could not be obliged to perform. What, then, are the rights, and what is the remedy, of the plaintiff ? He has conveyed the 40 acres to the defendant, and the defendant has received it, and accepted the benefit of it. Does he not, in equity and good conscience, owe the plaintiff the balance of the price or value of the land in money ? Is there not an implied promise on the part of the defendant to pay the plaintiff the price or value of the land conveyed ? We think there is. Although he was not obliged to convey the Cadillac property, because his promise to do so was void under the statute of frauds, yet his refusal to convey had the effect to rescind the contract, and raised an implied promise to pay for what he had received upon it. Gray v. Hill, Ryan & M. 420; Basford v. Pearson, 9 Allen, 387, 392 (85 Am. Dec. 764).”

In Champion v. Munday, 85 Ky. 31 (2 S. W. 546), part of the consideration for a conveyance of land was an oral agreement that the vendee would give to the vendor the right of passage over lands not mentioned in the deed. In disposing of the case, the court said:

“As the deed was not signed by the appellant, nor any writing executed by him evidencing the appellee’s right to the passway, it is urged that the contract is within the statute of frauds, and cannot be enforced. If simply a passway over the land sold had been reserved by the deed, then, of course, this question would not arise; but the right is claimed to a passway through other land belonging to the appellant. Equity, following the law, will not enforce a contract within the statute. Here, however, it has been executed upon the part of the appellee, and the appellant accepted the deed and had it recorded. There is no offer by him to rescind. He placed the appellee in the use of the passway, while he is in possession of the property; and a court of equity will not, under these circumstances, permit him to hold it, and yet refuse to pay for it. If he declines the one, he must do the other; otherwise the statute would become a means of injustice, and enable a party to commit a fraud, thus defeating the very object of its enactment.”

In this case defendants retain the title conveyed by complainant to Jane Lamb. They do not offer to rescind the contract, but seek to retain all its advantages, and at the same time repudiate all obligations under it. The statute of frauds was passed to prevent frauds, and it ought not to be so applied as to perpetrate a fraud. If there is such a variance between the case stated in the bill and the proofs as to prevent justice being done, I think it a proper case to permit an amendment of the bill.

The decree of the court below should be affirmed, with costs to the complainant.


source: Caselaw Access Project

author: Montgomery, J. Moore, J.

license: Public Domain

text:
    PEOPLE v. HAMMOND.
    1. Criminal Law — Soliciting Bribe.
    The solicitation of a bribe by a member of the legislature is a complete common-law offense, though the person solicited refuses to co-operate.
    3. Same — Indictment—Statement of Offense.
    An indictment charging that respondent, while acting as a legislator, did, at a certain time and place, corruptly solicit a certain person to give him a sum of money, with intent to influence his vote upon a bill pending in the house of representatives, is not defective for being argumentative, and failing to state the means or words used in soliciting.
    3. Telegrams — Secondary Evidence.
    Parol testimony is admissible to prove telegrams where it appears that the telegraph company has destroyed the originals.
    4. Same — Presumptions—Performance of Duty.
    It will be presumed that those in charge of receiving and transmitting telegrams perform the duties intrusted to them.
    5. Same — Answers as Evidence.
    Where the original telegram has been destroyed by the company, a telegram received as and purporting to be an answer is admissible in evidence.
    6. Witnesses — Indorsement of Names on Indictment.
    The failure of the foreman of the grand jury to indorse the name of a witness upon an indictment is not sufficient reason for excluding his testimony, where respondent has had fair notice that the witness will be sworn.
    7. Criminal Law — Argument of Prosecutor — Failure of Respondent to Testify.
    A statement by the prosecuting attorney in his argument to the jury, that the people’s witnesses stand undisputed, does not ’ infringe the rule forbidding the prosecutor to comment on the fact that the respondent was not made a witness.
    8. Same — Charge of Court.
    A statement by the prosecutor that “defendant’s counsel, when he said the people’s witnesses and God were the only ones who knew the contents of the telegrams, forgot his client, whom it is alleged the telegrams were sent to, and who it is claimed sent one of them,” was not error, where the court charged the jury that the fact that respondent did not take the stand in his own behalf should not weigh against him. Moore, J., dissenting.
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted June 5, 1902.
    (Docket No. 99.)
    Decided March 23, 1903.
    D. Judson Hammond was convicted of soliciting a bribe.
    Affirmed.

      Henry M. Zimmermann and William D. Gordon (B. A. Montgomery, of counsel), for appellant.

      Horace M. Oren, Attorney General, and Arthtbr J. Tuttle, Prosecuting Attorney (Watts S. Humphrey, of counsel), for the people.
   Montgomery, J.

The respondent was convicted under an indictment which, after reciting that he was duly elected and qualified as a member of the legislature, and that a certain measure was pending before the legislature, charges the offense as follows:

‘ While said bill was still pending in an d before said house of representatives as aforesaid, and on, to wit, the 23d day of May, A. D. 1899, at, to wit, the county and State aforesaid, the said D. Judson Hammond, so being such legislative officer, sitting and acting as such, well knowing the premises, and that he would be called upon in his official capacity to give his vote, opinion, and judgment upon the said senate bill No. 261, file No. 49, and contriving and intending to betray the confidence and trust reposed in him as such legislative officer, did corruptly solicit one James Coye to corruptly give him, the said D. Judson Hammond, so being such legislative officer as aforesaid, and while he was sitting and acting as such, a certain gift and gratuity of a certain sum of money, to wit, five hundred dollars in money, of the value of five hundred dollars, with intent to influence his, the said'D. Judson Hammond’s, act, vote, opinion, decision, and judgment on a certain matter, question, cause, and proceeding then pending before the said house of representatives,- and which might by law and was liable by law to come and be brought before him, the said D. Judson Hammond, in his official capacity as such representative as aforesaid, to wit, on the said senate bill No. 361, file No. 49, entitled as aforesaid.”

The case is brought here for review before sentence.

It is strenuously contended that the indictment charges no offense known to the laws of this State. It is conceded by the learned counsel for the State that there is no statute defining the offense set out in the indictment, but it is contended that the case falls within the statute (3 Comp. Laws, § 11795) providing for the punishment of offenses indictable at the common law. In other words, it is claimed that the indictment sets out an offense at the common law. Respondent’s counsel assert that solicitation to commit a crime is not indictable when there is interposed between the solicitation on the one hand and the proposed illegal act on the other the resisting will of another person, which other person refuses assent and co-operation; citing, among other cases, McDade v. People, 29 Mich. 50, and Smith v. Com., 54 Pa. St. 309 (93 Am. Dec. 686).

It may be accurate to say that what is treated in the law as an attempt to commit a crime is not complete where there is interposed between the solicitor and the consummation of the completed offense the resisting will of the one whom the solicitor seeks to employ as the active agent. But to say that a solicitation may not amount to an offense under these circumstances is to deny that a solicitation to commit a felony is punishable at the common law as a substantive and completed offense. Can this be properly asserted ?

In 1 McClain, Crim. Law, § 220, it is stated:

“The form of intent which perhaps involves the least degree of criminality is that of a solicitation of another to do an act which, if done, would constitute a crime; and such solicitation is generally held to be punishable as a misdemeanor, although the offense solicited is never committed.” i

Mr. Wharton states the rule differently, as follows:

“Are solicitations to commit crime independently indictable? They certainly are, as has been seen, when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as where a resistance to the execution of. a judicial writ is counseled, or perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer or a witness is sought, or invited by the officer himself.” 1 Whart. Crim. Law, § 179.

The precise question here involved was decided in Walsh v. People, 65 Ill. 58 (16 Am. Rep. 569). The opinion of the court is well reasoned, and, as we think, unanswerable. It was there held that requesting a bribe should be treated as an inciting to offer one, and hence a solicitation to commit an offense. It is clear that under our statute the offer of a bribe is not only an offense, but a felony. 3 Comp. Laws, § 11311. We are cited io Hutchinson v. State, 36 Tex. 293, which is opposed to Walsh v. People. But the Hutchinson Case is not reasoned, nor are the authorities reviewed. The case of Com. v. Randolph, 146 Pa. St. 83 (23 Atl. 388, 28 Am. St. Rep. 782), is an instructive case on this subject, and not only distinguishes Smith v. Com., 54 Pa. St. 209 (93 Am. Dec. 686), cited by respondent’s counsel, but sustains the text of Wharton above cited. See, also, Com. v. Flagg, 135 Mass. 545.

It is contended that the indictment is argumentative. The substance of the indictment is quoted above. We think it not open to the objection raised. It is not necessary that the indictment set forth the testimony. The form adopted is quite as full as that given in 1 Archb. Crim. Pr. & Pl. 20, or as that upon which a conviction was had in Rex v. Higgins, 2 East, 5.

The evidence of the prosecution tended to show that, in a conversation had with one James A. Coye in the capitol at Lansing, the respondent, in effect, proposed to kill the bill then pending before the legislature and mentioned in "the indictment, if paid $500. The prosecution further proved by parol that on his return to Grand Rapids Mr. Coye sent a dispatch to respondent by telegraph, reading substantially:

“Tour proposition staggers my friends. They will communicate with their associates. Is your proposition the very least that you will take ? Answer. ”

It was also proved by parol that, within a short time after this dispatch was sent, a reply was received, purporting to be sent by the respondent, and reading, ‘ ‘ The very least, and must have answer quick.” It was objected to this testimony that proper foundation was not laid for the introduction of parol testimony, and that there was no testimony to connect the respondent with the second telegram, or to show that he was the sender of it. As to the first objection, we think it sufficiently appeared that the original telegrams were destroyed by the company long before the trial, and that it follows that secondary evidence was admissible.

Whether the telegram purporting to be an answer to the one sent by the witness Coye was admissible without direct proof that it was sent by the respondent is a question by no means free from doubt. The authorities are not agreed, and, as the question is presented to the court for the first time, it must be determined upon principle. In Howley v. Whipple, 48 N. H. 487, which is the leading case supporting the contention of respondent’s counsel, it was held that the fact that a telegram purported to be an answer to one sent was not sufficient to admit it in evidence. In that case the court held that the original signed message was the best evidence, and it would appear from a reading of the report of the decision that it was not shown that this original was destroyed. This case was, however, followed, and the same ruling made, in a case where it was shown that the original was destroyed, in Smith v. Easton, 54 Md. 138 (39 Am. Rep. 355). It was there held that evidence of the handwriting of the original message, or at least of its delivery to the first operator, is essential.

On the other hand, courts of equal respectability have likened telegrams to letters, and have held that purported answers are admissible as prima facie evidence. It is well settled that when a letter is received in due course of mail, purporting to be in response to the letter previously sent by the receiver, it is presumptively genuine and admissible. Armstrong v. Thresher Co., 5 S. Dak. 12 (57 N. W. 1131); People’s Nat. Bank v. Geisthardt, 55 Neb. 232 (75 N. W. 582); Melby v. Osborne, 33 Minn. 492 (24 N. W. 252); 1 Greenl. Ev. § 573a; 2 Whart. Ev. § 1328. The principle upon which these cases rest is that there is a presumption that those in charge of receiving and transmitting mail perform the duties intrusted to them, and this, coupled with the fact that the letter received on its face purports to be a reply to the one sent, and coming from the source from which it might be expected, raises a just inference that it is in fact a reply. We see no good reason why this same presumption of the performance of duty should not obtain as to the employés of a telegraph company. A large portion of the business of the country is transacted through the medium of such agencies, and, while it is true that mistakes sometimes occur, it is also true that the postal service is not infallible. It was held in Com. v. Jeffries, 7 Allen, 556 (83 Am. Dec. 712), that there is a presumption that when a telegram has been delivered to the telegraph company, and accepted by the operator for transmission, it is duly forwarded and received by the addressee. If this presumption obtains, what is to be inferred from the receipt of an answer to such a communication ? Is it an^ less strong than is the receipt of an answer by mail to a letter ? We think it is no stretch to say that a presumption arises that such answer was in either case sent by the original addressee. This was held in the recent well-considered case of Western Twine Co. v. Wright, 11 S. Dak. 521 (78 N. W. 942, 44 L. R. A. 438). We are satisfied with the reasoning of this case and follow it. See, also, Taylor v. Steamer Robert Campbell, 20 Mo. 254.

Witnesses whose names were not indorsed upon the indictment were sworn, against the objection of respondent’s counsel. Two of these witnesses were not sworn before the grand jury; one was, but his name was inadvertently omitted from the indictment. The statute (3 Comp. Laws, § 11893) provides for the presenting to the court by the foreman of the grand jury of the indictment, with the names of the complainant and all the witnesses indorsed on the back thereof. The duty of indorsing names of witnesses upon an indictment is not imposed upon the prosecuting attorney, except as it is made his duty to attend upon the grand jury and prepare indictments. See Hill v. People, 26 Mich. 496. Section 11934, 3 Comp. Laws, relates to informations, and contemplates that the prosecuting attorney shall indorse on the information, at the time of filing the same, the names of all witnesses then known to him. It was held in People v. Howes, 81 Mich; 396 (45 N. W. 961), that the fact that the name of a witness known to the prosecuting attorney was inadvertently omitted did not authorize the prosecuting attorney to make the indorsement on the trial. In the present case, the proceeding being by indictment, no indorsement by the prosecuting attorney was proper after the indictment was filed. Should the failure of the foreman to make the indorsement be held to exclude the testimony wholly? True, it ought not to be permitted that the respondent be taken by surprise, but, if the respondent has fair notice of the purpose to úse such witnesses, we think the spirit of the statute is complied with. Such notice was given in this case.

Some questions are raised as to the admission of testimony offered by the prosecution and the rejection of testimony offered on behalf of the respondent. We have given careful attention to the arguments of respondent’s counsel upon this branch of the case, but we are not satisfied that any error was committed in either respect.

Complaint is made of the argument of the prosecuting attorney, and it is claimed that it infringed the rule of the statute which forbids comment by the prosecutor upon the fact that the respondent is not made a witness. The substance of the prosecutor’s argument was that the testimony of the people’s witnesses stood undisputed. This, we think, is not open to just criticism. It is true that, in addition to this statement, counsel, in closing the case to the jury, said:

“Defendant’s counsel, when he said that the people’s witnesses and God were the only ones who knew the contents of the telegrams, forgot his client, whom it is alleged the telegrams were-sent to, and who it is claimed sent one of them.”

This argument appears to have been directly in response to a statement by respondent’s counsel. We are not, therefore, prepared to hold that it was error, particularly in view of the fact that the jury were instructed that the fact that the respondent did not take the stand in his own behalf should not weigh against him in any manner.

The charge of the court fully and fairly submitted the case to the jury, and we think is not open to just criticism.

The conviction will be affirmed, and the court below directed to proceed to sentence.

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

Moore, J.

(dissenting in part). As stated by Justice Montgomery, the authorities are not agreed as to whether the indictment charges an offense known to the laws of this State, nor are they agreed 'as to the admissibility of the telegrams without first showing that Mr. Hammond sent them. I agree with him that the weight of authority and the better reasoning sustain his disposition of these two questions; but I cannot agree with him in his conclusion that the argument of the prosecuting officer was not harmful. The record discloses the following:

“Now, speaking of the telegrams, I want to call your attention — and I should not call your attention to this fact if it had not been for the gentleman who represents the defendant in this case making the assertion. He says that those men took the stand, and testified to the substantial contents of those telegrams. He said he should argue to you that there was no use disputing it, because he said they alone and God are the only ones who know what was in the telegrams; they and God alone are the only ones that know. My brother forgot his client, whom it is alleged the telegrams were sent to, and who it was alleged sent one of them.
“'Mr. Zimmermann: I take an exception to that remark.
“Mr. Humphrey: I am simply answering the argument he made, which is not a true statement of the evidence in the case, and the jury know to the contrary, and know that the argument made by the gentleman is not true.
‘ ‘ Mr. Gordon: I desire to enter a formal exception to the argument of counsel, who are stating that some one besides the witness and God Almighty knows about the telegrams, and calling the attention of the jury to the fact that my client, the defendant, possibly does, and presuming his guilt; and I take an exception to the remark of counsel.
“Mr. Humphrey: If I said any such thing, I have simply said it in answer to their argument when they say that these men and God Almighty are the only ones that know the contents of that telegram; that if the evidence is true, and those telegrams were sent, there is another man knows.”

The plea of not guilty interposed by defendant made it the duty of the people to prove his guilt beyond a reasonable doubt, and it is difficult to see how this could be done in this case without showing by proof beyond a reasonable doubt that Mr. .Hammond wrote and sent the telegrams. His plea denied that he had done so. The argument of the counsel is based entirely upon the assumption that Mr. Hammond had knowledge of these telegrams, and the only possible purpose of making the statement was to call the attention of the jury to that fact, and that Mr. Hammond did not state what he knew about it, and that he would do so if the inference drawn by the counsel from the evidence offered on the part of the people was not true. The circuit judge did not at once say the argument of counsel was contrary to the provisions of the statute, but left the effect of the argument with the jury until he gave them his charge. The statute (3 Comp. Laws, § 10211) which authorizes one accused of crime to be a witness has this proviso:

“Provided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

This language is not ambiguous. The argument of counsel is not excusable, upon the ground that his zeal has led him to draw inferences from the testimony not warranted by it, the effect of which has been at once corrected by the circuit judge, but it called the attention of the jury to the fact that accused was not sworn, and the statute says this shall not be permitted. The mischief done to the accused in the minds of the jurors by such an argument cannot be repaired by giving a written request to charge, any more than you can cure the effect of throwing into the air a handful of thistle down by attempting to pick up the seeds. I do not see how the case can be distinguished from the recent case of People v. Payne, 131 Mich. 474 (91 N. W. 739).

For the reason stated, the verdict should be set aside, and a new trial ordered.


author: Hooker, C. J.

text:
    FROHLICH v. MITCHELL.
    1. Transcript Judgment — Affidavit—Clerical Error.
    A transcript judgment is not void because the attorney making the affidavit stated that the judgment was rendered in favor of “deponent,” instead of the “plaintiff,” where the affidavit was properly entitled in the cause, and showed who the plaintiff was in whose favor the judgment must have been rendered.
    2. Same — Amount Due.
    A statement in such affidavit that the amount due was due to the deponent is not a jurisdictional defect, as 1 Comp. Laws, § 846, only requires the amount due on the judgment to be stated. i

      Certiorari to Wayne; Frazer, J.
    Submitted October 8, 1902.
    (Docket No. 18.)
    Decided March 23, 1903.
    William Mitchell petitioned the circuit court to vacate a transcript judgment entered against him by Edward Frohlich. From an order denying the petition, Mitchell brings certiorari.

    Affirmed.

      Jonathan Palmer, Jr., for appellant.

      Wilkinson & Younglove, for appellee.
   Hooker, C. J.

The following affidavit is the basis for the issue and filing of a transcript, the entering of judgment in the circuit court, and the issue of execution thereon, viz.:

“Edward Frohlich, Doing Business as the Edward Frohlich Glass Co., “vs. “William Mitchell.

Before John B. Teagan, One of the Justices of the Peace in and for the County of Wayne.

“State of Michigan, County of Wayne, City of Detroit.

“Ralph B. Wilkinson, one of the attorneys for the above-named plaintiff, being duly sworn, says there is now due and remaining unpaid upon the judgment heretofore, on the 4th day of May, 1901, rendered in the above-entitled cause by the above-named justice in favor of this deponent against the above-named defendant, the sum of four hundred and twenty-four 65-100 dollars, exclusive of costs, and that there is now due to this deponent for the costs taxed in said cause by said justice upon the rendition of said judgment the further sum of five dollars, and that execution may now be issued upon said judgment for the collection thereof; and this deponent further says that he has good reason to believe, and does believe, that there is not sufficient goods and chattels liable to execution to satisfy said judgment within the county of Wayne, where said judgment was rendered, belonging to the said William Mitchell, or to any person or persons against whom such execution may issue. And further says not.
“Ralph B. Wilkinson.
“ Subscribed and sworn to before me this 11th day of May, A. D. 1901.
“William Teagan,
“Clerk of the Justice Courts for Detroit.”

After a levy and sale of real estate, counsel for the defendant appeared and made a motion to vacate the judgment and subsequent proceedings upon the ground that the affidavit filed conferred no jurisdiction upon the justice to return the transcript, or upon the county clerk to file the same or enter judgment. This motion was based upon an affidavit setting up the facts, and the point relied upon was that the affidavit for the transcript did not state that a judgment was rendered in favor -of the plaintiff, arid did state that it was rendered in favor of “the deponent,” who was therein stated to be the plaintiff’s attorney, and that the amount named was due to the deponent instead of the plaintiff. The motion was denied, and the proceeding is here upon certiorari.

Three points are made by plaintiff’s counsel in support of the proceedings:

1. That the affidavit is a substantial, and therefore a sufficient, compliance with the statute.
2. That the defendant has, through laches, waived any right Of objection to the proceeding.
3. That certiorari is not a proper method for reviewing the proceedings.

The affidavit is entitled in the cause, showing that Frohlich was the plaintiff, and it states that affiant.is attorney for the “plaintiff above named.” The affidavit shows that the statement that “judgment was rendered in favor of the deponent ” was erroneous, and shows who the plaintiff was in whose favor it must have been rendered. This is evidently a clerical error, and was properly disregarded.

The statement that the amount due was due to the deponent is unimportant. The statute (1 Comp. Laws, § 846) does not require more than that the amount due upon the judgment shall be stated. This affidavit may be made on behalf of the plaintiff or an assignee, and in either case the entry of the transcript judgment would be under its original title. The affidavit purports to be made by affiant in the capacity of attorney, and his statement that the amount due is due to deponent may be disregarded.

The judgment is affirmed, with costs.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    CLARKE v. HILL.
    Mandamus — Transfer of Stock.

      Mandamus will not be granted to compel the secretary of a , private corporation to record the transfer of certificates of stock on the books of the company, as equity has jurisdiction to decree transfers, if an action at law does not afford an adequate remedy.

      Certiorari to Wayne; Brooke, J.
    Submitted October 8, 1902.
    (Docket No. 9.)
    Decided March 23, 1903.

      Mandamus by Ira M. Clarke to compel William H. Hill, secretary of the W. H. Hill Company, to transfer certain shares of stock. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Corliss, Andrus, Leete & Joslyn, for relator.

      Keena & Lightner, for respondent:
    Cited, to the point that mandamus is not the proper remedy, Kimball v. Water Co., 44 Cal. 173; Tobey v. Hakes, 54 Conn. 274 (7 Atl. 551); Bank of Georgia v. Harrison, 66 Ga. 696; Stackpole v. Seymour, 127 Mass. 104; Baker v. Marshal, 15 Minn. 177; State v. Rombauer, 46 Mo. 155; State v. Loan Ass’n, 43 N. J. Law, 389; State v. Timken, 48 N. J. Law, 87 (2 Atl. 783); Shipley v. Bank, 10 Johns. 484; Ex parte Firemen's Ins. Co., 6 Hill, 243; State v. Guerrero, 12 Nev. 105; Freon v. Carriage Co., 42 Ohio St. 30; Durham v. Mining Co., 9 Or. 41-52; Wilkinson v. Bank, 3 R. I. 22.
   Hooker, C. J.

Relator obtained a peremptory mandamus issued out of the circuit court requiring the respondent to transfer certain stock in a private corporation to the relator upon the books of the company. The learned circuit judge was of the opinion that, while there were other remedies, inasmuch as he was able to say that the right to the stock was clear, the writ should issue.

Mandamus is an extraordinary remedy, and is recognized as such. We have often held that it is inappropriate where there is another adequate remedy in law or in equity; and, as it is never supposed to be issued where there is not a clear legal right, it can hardly rest upon the ground that the right is undisputed. The authorities are overwhelming in support of respondent’s contention that this is not a proper remedy here. As they are cited in respondent’s brief, we need not cite them, or discuss them further than to say that most of the cases cited by relator’s counsel are distinguishable on well-recognized grounds. Equity has complete jurisdiction to decree transfers, if an action at law is not an adequate remedy. 2 Thomp. Cjorp. § 2425 et seq. See, also, section 2445. To sustain the jurisdiction contended for would be to make the summary remedy by mandamus the substitute for an action or suit in a large class of cases.

The order is reversed, with costs, and the writ is denied.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    FARRAND v. KAVANAUGH.
    1. Ejectment — Parties—Title.
    Notwithstanding, by statute (3 Comp. Laws, § 10950), the question of title, set up by one not in possession, may be tried in an action of ejectment, it is still a possessory action, and the person in possession is a necessary party.
    2. Same — Amendment—Waiver.
    A defendant in an action of ejectment, who objects to an amendment to the declaration adding another as a defendant, but afterwards accepts the costs awarded at the time the amendment and continuance were granted, waives the objection.
    3. Same — Jurisdiction—Waiver—Parties.
    A defendant in an action of ejectment, who appears and pleads to the merits, waives any objection to the jurisdiction of the court based on the ground that he was made a party by an amendment to the declaration.
    Case made from Branch; Yaple, J.
    Submitted October 8, 1902.
    (Docket No. 14.)
    Decided March 23, 1903.
    Ejectment by Olivia C. Earrand against Francis Kavanaugh and Morris Kavanaugh. There was a judgment for plaintiff, and defendants assign error.
    Affirmed.

      Reynolds & Reynolds, for appellants.

      John B. Shipman and Mark 8. Andrews, for appellee.
   Hooker, C. J.

The land in dispute is a strip 2 rods in width, and is alleged to be the west portion of an 80-acre lot described in the declaration. The action is ejectment, brought by the owner of the 80-acre parcel to recover the strip from the owner and occupant of an adjoining parcel. Said owner is Francis Kavanaugh, and when the action was commenced he was the sole defendant. The introduction of the plaintiff’s proof developed the fact that he purchased and owned the farm adjoining the land of the plaintiff, but that his son had gone upon the land at the time of the purchase by his father, and had occupied it thereafter up to the time of trial, together with the disputed strip. Thereupon counsel for the plaintiff moved to amend the declaration by making the son, Morris Kavanaugh, a party defendant, which motion was granted, and the amendment made, upon payment of $60 costs to defendant Francis Kavanaugh, and the cause was continued. Counsel for Francis Kavanaugh accepted and receipted for the costs for witness fees expended at said term, and Morris Kavanaugh came in and filed a plea of the general issue. Upon the trial the plaintiff recovered, and the only question before us is whether the court had jurisdiction to permit the amendment to the declaration, making Morris Kavanaugh a party.

It is fundamental that ejectment is a possessory action, and at common law lay only against the party in possession. Our statute (3 Comp. Laws, § 10950) permits it to be used to try the question of title set up by one not in possession, but in such case the person in possession, if there be such person, is a necessary party. Lockwood v. Drake, 1 Mich. 14; Crane v. Seitz, 30 Mich. 453; Hoyt v. Southard, 58 Mich. 432 (25 N. W. 385); Haddy v. Tobias, 85 Mich. 326 (48 N. W. 499). The jurisdiction of the court over Francis Kavanaugh was clear, though, under the testimony that one not made a party was in possession, the plaintiff might not .have been able to recover. To say that for that reason the court had no jurisdiction, and its proceeding was void, would be to make the question of jurisdiction depend upon the proof adduced upon the trial. See Peninsular Sav. Bank v. Ward, 118 Mich. 98 (76 N. W. 161, 79 N. W. 911).

The important questions before us are: First, is the judgment erroneous against Francis for the reason that Morris was made a party defendant ? And, second,- is it erroneous as to Morris ? This action was begun by declaration, and before judgment the trial was abandoned, and an order taken by plaintiff permitting her to bring in another and a proper party. A new declaration was filed, in which both were named as defendants, and this was served on Morris, and perhaps upon both. Thereupon Morris pleaded the general issue, and Francis having received some $60 costs, payment of which was a condition of the amendment, the parties proceeded to trial; no objection being made by either. It has been supposed that, as a general rule, new parties cannot be brought in by amendment in actions of tort; but we have no doubt that it might always have been done by stipulation, and that, where there is a clear waiver of objection, an irregularity in bringing them in is waived.

In this case Morris Kavanaugh did not plead in abatement. On the contrary, he pleaded to the merits and went to trial; and the point was not raised on his behalf until after judgment, though he employed the same attorneys who were already conducting his father’s defense. On the other hand, while Francis opposed the amendment, he afterwards accepted payment of the costs under the order, and went to trial without further objection. It is true, as counsel state, that he could not review the order until after final judgment (see St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 [72 N. W. 249]); but the point was, like many other interlocutory questions, subject to waiver. Thus one who pleads in abatement must usually stand on the judgment, and he cannot plead to the merits without waiving his objection to the jurisdiction. In the present case the defendant Francis Kavanaugh saved the point when the order was made, but by afterwards accepting payment under the order he waived it. Counsel for the defendant admit the rule, but urge that this case falls within a recognized exception, viz., that, where the benefit taken could not be affected by a reversal of the judgment or order, the appeal is not waived. To bring this case within the exception, we must be able to say that, in any event, the defendant must necessarily recover the costs of the first trial. If this amendment was erroneous, the plaintiff would still be entitled to try her case against Francis Kavanaugh. Defendant’s right to these costs would depend on the result, and that result would, in turn, be affected by the proofs regarding the alleged possession of Morris. We cannot say that the plaintiff is concluded by the testimony on the first trial, nor by the motion to amend, which may have been a precautionary measure. It becomes unnecessary to decide whether a new party may be brought in by amendment in such a case as this, against objection, and we express no opinion upon it.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    BARRON v. MERCURE.
    Conveyances — Possession of Deed — Presumption of Delivery.
    The presumption of the delivery of a deed, arising from its production by the grantee, was, in this case, overcome by evidence showing that it was not delivered when signed, nor for five years thereafter, that a companion deed could not be produced, and that the grantee, after the death of the grantor, made contradictory statements concerning the delivery, and inconsistent with his claim of title.
    Appeal from Wayne; Carpenter, J.
    Submitted October 9, 1902.
    (Docket No. 26.)
    Decided March 23, 1903.

      Bill by Philimen Barron and others against Joseph Mercure and another to remove a cloud from title. Prom a decree for complainants, defendants appeal.
    Affirmed.

      E. R. Qilday, for complainants.

      Lehmann & Riggs, for defendants.
   Montgomery, J.

Complainants and defendants are the heirs at law of Octave Mercure and his wife, J ulian Mercure. This bill is filed to remove a cloud on the title to 18 acres of land formerly belonging to Octave Mercure. December 7, 1894, Octave Mercure owned the land in question, and also a house and lot in the township of Brownstown. On that date he executed deeds of both these descriptions of land to his wife, Julian. She in turn signed two deeds, the one conveying the house and lot to a daughter, Emma Roberts, and the other conveying the 18 acres to defendant Joseph. It is undisputed that these last-named conveyances were retained in the custody and control of Mrs. Julian Mercure or her husband for some years, and were certainly not delivered prior to 1899. The deed to Joseph was recorded shortly after his mother’s death, in 1900. The deed to Mrs. Roberts was never delivered, and was not found among the effects of Mrs. Mercure. The sole question in the case is whether the deed to Joseph was delivered to him in the mother’s lifetime. The circuit judge found that it was not, and granted the relief prayed.

The defendants’ counsel insist that the presumption of delivery arising from the fact that Joseph produces the deed has not been overcome. We think otherwise, and agree with the conclusion of the circuit judge. It appears that, for some potent reason, the deed was not delivered when signed, and that its companion deed to Mrs. Roberts is not produced nor accounted for, except on the theory that it was destroyed. It appears that Joseph, after his mother’s death, has made contradictory statements as to the circumstances of the claimed delivery, and has made statements as to the title wholly inconsistent with his present claim. Enough appears to convince us that there was never a delivery of this deed.

The decree is affirmed, with costs.

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


text:
    BURNS v. BURNS.
    1. Wills — Legacy for Life — Possession of Legatee.
    Under a will giving the property of the testator to his executor, to the intent that his wife should have the full use, benefit, and enjoyment of it for her life, with the remainder after her death to his children, the personal representative of the testator may recover from the wife the amount of money belonging to the estate, and in her possession at the time of the death of the testator. Hull v. Hull, 122 Mich. 338.
    2. Gift Inter Vivos — Joint Control of Bank Account.
    A man had an account with a bank, which was so arranged that his wife could draw the money as well as himself. He told the bank teller it was as much her money as his. At the time of executing his will, he said the money in the bank belonged to his wife; that she had the same control over it that he had. Held, that the testimony did not indicate that he had ever deprived himself of authority over the fund, and therefore did*not show a gift inter vivos.

    3. Husband and Wife — Agency of Wife — Termination.
    The authority given a wife to use her husband’s money is terminated by his death.'
    Error to Wayne; Donovan, J.
    Submitted October 9, 1902.
    (Docket No. 32.)
    Decided March 23, 1903.

      Assumpsit by John Burns, administrator, with the will annexed, of the estate of Michael Burns, deceased, against Anne Burns, for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Alexander Brown (Fred J. Cochran, of counsel), for appellant.

      Flynn & Sevald (Charles K. Latham and Everett B. Latham, of counsel), for appellee.
   Hooker, C. J.

Michael Burns was, during his life, a depositor in the Detroit Savings Bank. The testimony of its teller shows that as early as March 14, 1893, he had a balance of $7,250. This balance was transferred on March 14, 1893, to another pass-book, showing a credit to Burns of $7,259.72. This account was closed on July 5, 1900, and a balance of $6,323.22 then appeared to the credit of Michael Burns. When the last mentioned pass-book was issued, it was taken away and afterwards kept by Michael Burns. He made withdrawals of money from time to time, and allowed his wife, Anne Burns, to do the same. The teller testified that by verbal order of Michael he put her name on the book opposite his name, corresponding to his number, so that she would have the right to draw from that account. “He told me to fix it so that he or she could draw it at any time; 'that it was as much her money as it was his money. The balance, when the account was closed out, July 5th, was $6,323.22 due from the bank to Michael Burns.” On that day Mrs. Burns came to the bank, and stated that Michael was at the hospital, sick, and that the doctors said that they thought it unlikely that he would get well. The teller asked her whether, in that event, she could get this money, and told her that a better way for her to do would be to put this money in her name, as she had a right to draw it at any time, and she said that, if he (the teller) thought it would be a better way, she would do it. It was thereupon closed out, and the amount transferred to an account opened in her own name, and she took the new pass-book.

Burns died December 8, 1900. He left a widow, Anne Burns, and six children. He also left a will, which purports to have been made May 17, 1899. This provided:

First. For payment of debts and funeral expenses.
Second. I give, devise, and bequeath all my property and effects, of every name and nature, to my executors hereinafter named, for the intents and purposes hereinafter mentioned, viz.: I desire that my wife shall have the full use, benefit, and enjoyment of all my property and effects, of every name and nature, for and during the full term of her natural life.”
“Sixth. Whatever remains after my wife’s death I desire shall be divided share and share alike between my beloved children, John Burns, Patrick Burns, Julia Crapo, Maria Guyman, Kate Fahey, and my adopted child, Mary Burns.
“Seventh. I hereby appoint my beloved wife, Anne Burns, and Mr. Charles Collins, of the Wayne County Savings Bank, Detroit, sole executors of this, my last will and testament.”

John 'Burns, one of testator’s sons, was appointed administrator with the will annexed, and brought this action to recover the amount of said deposit fropi his mother. A verdict in his favor was directed, and the defendant has appealed.

It is not denied that this was at one time the money of Michael Burns. One Schmiel was called as a witness for the defendant, and he testified that, at the time the will was executed, Mr. Burns was asked by the notary what he was going to do with the money in the bank, and replied: ‘ ‘ That belongs to my wife; it is already settled.” Morgan J. P. Dempsey testified that he was Burns’ spiritual adviser, and that, just prior to the execution of the will, he told him that the money was in the joint name of himself and wife, and that his wife had the same control over that money that he had, and that it was his intention that it should be at her control.

Counsel for the defendant contend for a reversal of the judgment on the following grounds:

1. Because, under the will, the money was given to the wife for her lifetime, and under the law she was entitled to its custody and control.
2. That the money had been given to the wife during her husband’s lifetime, and was no part of testator’s estate.

Counsel for the plaintiff call our attention to section 9294 of the Compiled Laws, which provides:

“(9294) Sec. 34. All the devisees and-legatees who shall, with the consent of the executor or otherwise, have possession of the estate given to them by will before such liability shall be settled by the probate court, shall hold the same subject to the several liabilities mentioned in the preceding section, and shall be held to contribute according to their respective liabilities to the executor, or to any devisee or legatee from whom the estate devised to him may have been taken for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will; and the persons who may, as heirs, have received the estate not disposed of by the will as provided in this chapter, shall be liable to contribute in like manner as the devisees or legatees.”

Manifestly, if the plaintiff is right in his claim that the will gives the property to the custody of the administrator to be held in trust, there would be no opportunity for the application of the statute, because of the clear intent that the defendant should not have it. We are of the opinion that it did not give the property outright to the wife, and that the case is ruled by Hull v. Hull, 122 Mich. 338 (81 N. W. 89), and Cole v. Cole’s Estate, 125 Mich. 655 (85 N. W. 113).

We are also of the opinion that there was no proof from which a gift inter vivos can be inferred. The testimony does not indicate that the testator ever deprived himself of authority over the fund, and, while the testimony of Schmiel, Dempsey, and the bank teller tends to show an intention to allow her to use the fund, such authority was terminated by testator’s death. The case of Brown v. Brown, 23 Barb. 565, is in point.

No error was committed in refusing a new trial.

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


author: Hooker, O. J.

text:
    AVERY v. PRESTON NATIONAL BANK.

    1. Receivers — Executors—Custody op Trust Funds.
    Where a receiver has deposited trust funds in a bank in his own name, his executor is entitled to recover the same from the hank, for the purpose of delivering them to the receiver’s successor, although the bank is interested in the fund.
    2. Same — Chancery Jurisdiction.
    The court of chancery that appointed the receiver must determine the disposition of the trust fund which is in its custody.
    Error to Wayne; Donovan, J.
    Submitted October 10, 1903.
    (Docket No. 43.)
    Decided March 23, 1903.

      Assumpsit by Elizabeth H. Avery, John H. Avery, and George E. Avery, executors of the last will and testament of Darius N. Avery, deceased, against the Preston National Bank, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Gray & Gray, for appellants.

      Geer & Williams and H. E. Martin, for appellee.

       Rehearing denied September 22, 1903.

   Hooker, O. J.

The Clover Condensed Milk Company was a corporation. It was indebted to the defendant. Being embarrassed pecuniarily, three of its stockholders advanced $1,000 each, and two mortgages of its property were given in trust to Darius N. Avery to secure its indebtedness. All expenses of the trustee were to be paid first; second, the $3,000 advanced; third, the debt to the defendant; and, afterwards, various other claims, in the order therein named. The trustee took immediate possession of the property, and proceeded to carry on the business until the 1st of the succeeding November, a period of about six months, when the property was sold. He deposited the proceeds with the defendant in his own name. The $3,000 loan was paid. , ,

In November, 1898, a bill was filed in the Wayne circuit by the defendant, alleging the insolvency of the company ; that the trustee had assets, including a claim then in litigation in New York; and that such litigation could be brought to an end more speedily through the appointment of a receiver. It prayed that a receiver be appointed to take charge of and collect the assets. Darius N. Avery was appointed such receiver, and it is claimed that the entire proceeding was with his approval.

Darius N. Avery died on May 2, 1899, without having rendered a final account as trustee or receiver; and on February 24, 1900, George E. Avery was appointed receiver, on a petition filed by himself and co-executors of Darius N. Avery. He filed a statement of account in the chancery case, and the matter was partially heard. Some dispute arose over some credits claimed by the receiver, and the hearing was continued for the purpose of securing further evidence, and it is still pending. The plaintiffs, as executors, afterwards demanded from the defendant payment of the amount deposited; and this was refused upon the claim that it was a trust fund, and really belonged to the bank. Thereupon this action was brought by the executors to recover it. The court refused to consider or admit evidence of the counterclaims, upon the ground that the court of chancery only had jurisdiction of the accounting, and directed a verdict for the defendant on the ground that this money constituted the fund of an unsettled trust in the control of a court of chancery, and that the executors had no right to recover it.

The plaintiffs claim:

1. That the transactions of the Condensed Milk Company should not have been admitted.
2. That, after they were admitted, the court should have allowed plaintiffs to show the trustee’s disbursements and the true balance.
3. That a verdict should not have been directed for the defendant.
4. That one should have been directed for the plaintiffs.

At the time of the death of Darius N. Avery, he had in his custody as receiver a fund which he had deposited with this defendant. This created the relation of debtor and creditor between them. It is true that the bank had an interest in the fund, but it had no right to appropriate it as its own until the court should make an order for its distribution. It was money in the custody of the law, as between the receiver and the bank, and the former, as between them, was entitled to it. But the present receiver never had its actual custody. It was among the assets of his predecessor, and he was entitled to demand and receive them from his executors; and, the fund being susceptible of identification, there is no doubt of the receiver’s right to follow it and claim it if necessary. He had also the right to demand it of the representatives, and they had the right to take the fund and deliver it to him as its proper custodian. The defendant had no right to withhold it.

Counsel cite cases which are thought to support the defendant’s right, as cestui que trust, to apply this fund to its claim. We can imagine cases where a cestui que trust might defend against an action brought against him by a trustee on the ground that he was entitled to the fund, as he might in some cases recover the trust fund in an action against a trustee. But, before he would be permitted to do either, it would be necessary that he have a right to the same. Here the officer of the court of chancery is the party claiming the fund. That court, and not a court of law, must first determine the disposition of the fund which is in its custody. We cannot try the questions involved in the accounting case. Some of the cases cited relate to the right to follow a trust fund where it can be identified against general creditors, but there is no such question necessarily involved here. No one disputes that this is such a fund, and subject to the control of the court of chancery. Presumably, the plaintiffs seek to get possession of it that they may turn it over to the receiver; thus discharging the liability of the estate in whose custody it is.

We are of the opinion that the court erred in directing a verdict for the defendant.

The judgment is reversed, and a new trial ordered.

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


text:
    VILLAGE OF DURAND v. BOARD OF SUPERVISORS OF SHIAWASSEE COUNTY.
    1. Health Officers —Compensation —Contagious Diseases— Liability of County.
    Under the statute (2 Comp. Laws, § 4424) providing that, in certain cases, the expense of a village board of health, in caring for persons sick with diseases dangerous to the public health, shall be a charge against the county, provided! the board shall render an itemized statement of its expenses, a village cannot bind the county by voluntary donations to its health officer, over and above the charges preferred by him for specific services.
    2. Same — Construction of Statute.
    The proviso to section 4424, 2 Comp. Laws, “that the health board shall keep and render an itemized and separate statement of expenses incurred in so caring for each person,” is mandatory.

      Gertiorari to Shiawassee; Smith, J.
    Submitted October 17, 1902.
    (Docket No. 82.)
    Decided March 23, 1903.

      Mandamus by the village of Durand to compel the board of supervisors of Shiawassee county to allow certain claims. From an order granting the writ, respondent brings certiorari.

    Modified.

      Byron P. Hicks, for relator.

      Austin H. Richards, Prosecuting Attorney, and John T. McCurdy, for respondent.
   Montgomery, J.

This is certiorari to review the action of the circuit judge in directing that a peremptory mandamus issue requiring the respondent to audit and allow two several claims in favor of the village, which claims consist, first, of an item of $520, allowed and paid by the village to Dr. A. Gr. Cowles, under a charge for “extra services as health officer during an epidemic of smallpox, from May 24 to July 14, 1900, 52 days, at $10 per day, $520.” The other item directed to be audited is the sum of $157.75, for an allowance to Dr. Cowles for services during another outbreak of smallpox, consisting of various items. Of these items one is for $96 for “extra services as health officer from February 27 to March 14, inclusive, 16 days, at $6 per day.” The remainder of this amount of $157.75 consists of an itemized account for services rendered to one William Lampman during the outbreak of smallpox.

Numerous questions are discussed in the briefs, but the case may be disposed of without discussing these questions in detail. The two different items for'services as health officer stand upon the same footing, and at the threshold of- the case we are met with the question as to whether these items should be allowed. The relator’s counsel relies upon the case of Village of St. Johns v. Board of Sup’rs of Clinton Co., 111 Mich. 609 (70 N. W. 131). In that case a similar allowance was made, and the action of the circuit court directing a mandamus was affirmed by this court. But, in construing this decision, dates are important. The epidemic of smallpox in that case occurred in 1894. At that time section 1647, 1 How. Stat., corresponding to section 4424 of the Compiled Laws of 1897, read as follows:

“When any person coming from abroad, or residing in any township within this State, shall be infected, or shall lately before have been infected, with the smallpox or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision, in the manner in which they shall judge best for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents, or other persons who may be liable for his support, if able; otherwise, at the charge of the county to which he belongs. ”

But in 1895 there was added to the section the following clause:

“ Provided, that the health-board shall keep and render an itemized and separate statement of expenses incurred in so caring for each person.” Pub. Acts 1895, Act No. 97.

It is very clear that the account does not conform to this requirement. It is suggested by the relator’s counsel that this provision is directory to the board of health simply. We do . not so regard it. The language of the clause is that of a proviso, and a proviso which affects the entire of the preceding section. The wisdom of the provision is well illustrated in this case. Dr. Cowles was a witness in the case, and testified that, as to the bill of $520, he had previously rendered a bill for specific services rendered in connection with this same, outbreak of smallpox, and had received his pay therefor, and testified that the manner in which he came to present this $520 bill was that one of the councilmen, in open council, thought that he ought to have extra pay for services as health officer, and that this allowance was in the nature of a present to him for extra services in the matter; that he had not made any such claim against the village, but that the claim was presented at the suggestion of the members of the council, and by them allowed; that, if he had not been told to present the bill, he would not have presented it. However .equitable the claim may have been as against the village, this statute certainly never contemplated that boards of health could bind the county by voluntary donations over and above the charges preferred by those having charge of-these cases. The village has met the payment of this bill, and we see no reason why it should not bear the expense which was voluntarily incurred.

As to the remaining items of the bill of $157.75, they are the proper subject of allowance by the board of supervisors, and the order will be modified to the extent of directing the allowance of these items only.

We think the costs of this proceeding in this court should be borne by the relator. The proceedings in the circuit will be without costs to either party.

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


text:
    ONTARIO POWDER WORKS v. POWELL.
    Pleading — Amendment Without Leave — Bill of Particulars.
    Where a declaration on a foreign judgment, containing also the common counts, was amended without leave, after the time for amending without leave, by filing a declaration like the former, except that it contained a notice that certain promissory notes would be given in evidence, and on the same day a bill of particulars was filed, pursuant to defendant’s demand, referring to the amended declaration for a description of plaintiff’s cause of action, it was not error to treat the amended declaration as a part of the bill of particulars.
    Error to Marquette; Stone, J.
    Submitted November 18, 1902.
    (Docket No. 93.)
    Decided March 23, 1903.

      Assumpsit by the' Ontario Powder Works against Daniel W. Powell and Edward Mitchell, copartners as Powell & Mitchell, on a foreign judgment and certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Clark & Pearl, for appellants.

      Ball & Ball, for appellee.
   Hooker, C. J.

Defendants have appealed from a judgment rendered against them. The action was commenced by declaration, which counted upon a foreign judgment. It contained the common counts also. On January 4th, defendants’ counsel filed and served á plea of the general issue, and gave notice, by way of defense, that the judgment was not binding and conclusive in the cause. It also alleged that the foreign court had no jurisdiction. It concluded with a reiterated demand for a bill of particulars. Subsequently the plaintiff’s counsel filed, without leave, an amended declaration, which was substantially like the former, except that it was accompanied by a notice that it would give in evidence certain promissory notes, copies of which were appended. On the same day a bill of particulars was filed, stating that the several judgments and notes mentioned in the amended declaration constituted plaintiff’s entire cause of action. At the trial, objection was made to the amended declaration, upon the ground that it was filed without leave, and after the time prescribed by rule for filing amended declarations without leave. The court seems to have held that this objection was valid against the paper, but held that it might be used in connection with, and to make complete, the bill of particulars; or, in other words, that it might “be treated as a part of the bill of particulars” to the original declaration. We think there was no error in this.

Counsel urge that the notes recovered upon were merged in a former judgment rendered in Canada, but we discover nothing' in the pleadings or evidence that this was so. They may have been distinct and separate claims, for aught that appears to the contrary. The testimony made a prima facie case, and the judgment is affirmed.

The other Justices concurred.


text:
    AUSTIN v. AUSTIN.
    Partition — Degree—Appeal.
    A decree directing that a partition of lands be made cannot be reviewed on an appeal from the order confirming the report of the commissioners.
    Appeal from Ottawa; Paclgbam, J.
    Submitted November 18, 1902.
    (Docket No. 85.)
    Decided March 23, 1903.
    Bill by Henry F. Austin and others against Mary J. Austin, Robert O. Wallace, and others for the partition of certain real estate. From an order confirming the report of the commissioners, defendant Wallace appeals.
    Affirmed.

      Charles E. Soule, for complainants.

      Walter I. Lillie, for appellant.
   Montgomery, J.

This is an appeal from an order confirming the'report of commissioners in partition. The decree directing that partition be had was not appealed from, and is not before us for consideration. Shepherd v. Rice, 38 Mich. 556.

Appellant’s counsel contends that the decision of the commissioners was so grossly inequitable as to amount to a legal fraud upon his client. An examination of the case convinces us that this claim is wholly unfounded. The ■decision appears to have been based upon considerations which seem sound, and to have been based upon the testimony,, and the judgment of the commissioners, as to the value of the land, the timber, and the improvements, respectively. The record does not support the suggestion that the appellant was prevented from producing his testimony.

The decree is affirmed, with costs of this court to appellees.

The other Justices concurred.


text:
    AUDITOR GENERAL v. BUCKEYE IRON CO.
    Taxation — Board op Review — Record.
    The failure of the board of review to keep a record of its proceedings, as required by section 3856, 1 Comp. Laws, does not render invalid a tax against one who has suffered no injury by reason of such omission. 1 Comp. Laws, § 3922.
    Appeal from Marquette; Stone, J.
    Submitted November 19, 1902.
    (Docket No. 95.)
    Decided March 23, 1903.
    Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by the Buckeye Iron Company. From a decree for petitioner, defendant appeals.
    Affirmed.

      Frank A. Bell, Prosecuting Attorney, for petitioner.

      Clark & Pearl, for defendant.
   Montgomery, J.

This case presents the single question whether the failure of the board of review to keep a record of its proceedings, as required by section 3856, 1 Comp. Laws, renders the tax spread upon the roll invalid as against one who has suffered no injury by reason of such omission; his own assessment, when disturbed at all, having been reduced.

We think this question should be answered in the negative, on the authority of section 3922, 1 Comp. Laws, which provides that :

“No tax assessed upon any property, or sale the ref or,, shall be held invalid by any court of this State on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice tbe property rights of the person whose property is taxed.”

The decree is affirmed, with costs.

The other Justices concurred.