text:
    WANNEBO v. STONE.
    1. Sales — Principal and Agent — Contracts—;Logs and Logging.
    Where the owner of certain lands agreed with a contractor to finance the cutting and marketing of the timber and the contractor agreed, for a compensation stated, to carry on the operations and to cause the lumber to be scaled and graded on the docks at Grand Marais, Minn., the contract providing that title should remain in the proprietor and the contractor should have a lien on the product to secure his advances, and that he should assist the owner to find a purchaser, but no sale should be made without the consent of the owner, a sale made by the contractor at a price to which the owner of the lumber made no objection, the transaction,- being later confirmed in correspondence with the purchaser of such lumber, was sufficient to pass title.
    2. Same — Trover and Conversion — Agency.
    Plaintiff’s letter advising the purchaser that the contractor had no title to the lumber, that all his right was simply a lien and stating “that the full value of the lumber must be accounted for and paid to me, and not to Mr. Mayhew (the contractor),” amounted to an affirmance of the sale, in the absence pf any showing that plaintiff objected to the price at which the lumber was sold or that it was too low or was unsatisfactory, and defeated any right of the owner to bring an action of trover against the buyer.
    Error to Wayne; Hally, J.
    Submitted April 17, 1914.
    (Docket No. 65.)
    Decided July 24, 1914.
    Trover by Hans Wannebo against Fred J. Stone for the conversion of certain lumber. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Davis & Bromley, for appellant.

      Fred H. Aldrich, for appellee.
    This is an action of trover brought by the plaintiff against the defendant to recover the value of a shipload of lumber, about 517,000 feet, taken by defendant from piles on the dock at Grand Marais, Minn., on or about November 15, 1911. The claim of plaintiff is stated as follows:
    “It was the claim of the plaintiff, Hans Wannebo, that on or about November 15, 1911, he was the owner of about 517,000 feet of pine lumber piled upon the dock at the village of Grand Marais, Minn., and that one George Mayhew, under an agreement in writing with the plaintiff, dated May 31, 1911, had cut and hauled the timber for said lumber to the sawmill, and had caused the same to be sawed into lumber, and had caused the same to be hauled and piled on the dock at Grand Marais, Minn., and that for the expense thereof, with certain other interests therein, was to have had alien thereon, and that in the sale of said lumber the said Mayhew should assist the said plaintiff in finding a purchaser or purchasers at the highest prices for which'the same could be sold, but no sale should be made, except with the consent and approval of the said plaintiff, Hans Wannebo; and it is the further claim of the plaintiff that on or about November 15, 1911, the said George Mayhew, without the consent and approval of the said plaintiff, Hans Wannebo, sold all of said lumber to the said defendant, Fred J. Stone, who took possession thereof and converted it to his own use, and the plaintiff having proven such facts as claimed by him, by a fair preponderance of the evidence in the case, then he was entitled to recover a verdict in this case for the value of his interest in the lumber at the time of such conversion by the said defendant, Stone.”
    The contract, in terms, is as follows:
    “This agreement, made and entered into this 31st day of May, 1911, by and between George H. Mayhew, of Grand Marais, Minnesota, and Hans Wannebo, of Duluth, Minnesota.
    “Witnesseth, whereas, said Wannebo is the owner of the southeast quarter of the southeast quarter of section 20, the south half of the southwest quarter of section 21, and the north half of the northwest quarter of section 28, in township 62 north, of range 1 east, of the 4th P. M., upon which is considerable timber which he desires cut and made into lumber and then sold, but is without financial ability to carry on said transaction; and whereas, said Mayhew desires, to finance said operations and cause the same to be carried on at the mutual profit of both of said parties:
    “Now, therefore, this witnesseth, that said Mayhew agrees to immediately commence and to continue in a proper, workmanlike, and business way to the completion thereof and cause all the standing and down pine and spruce timber on said land which will make a log six inches or more at the top, and suitable for lumber, to be cut into appropriate lengths and drayed or wagon-hauled to the portable saw-mill herein stated; to cause to be immediately erected at some suitable place on said land a portable sawmill with a daily capacity of about 12,000 feet, and there cause said mill to be continuously operated in a business and workmanlike manner, and said logs to be sawed into merchantable lumber, and of dimensions which may be most profitable, and thereupon to cross-pile the same and there keep it until weather conditions shall permit of its being hauled on wagons during the present season to Grand Marais; that thereupon he will wagon-haul all of said lumber, except that which grades either numbers 4 or 5, but. including all of said spruce lumber, to the dock at Grand Marais, Minnesota, and there properly grade, correctly scale, and stock-pile the same; to furnish said Wannebo correct duplicates of said scale at different times as said lumber is so scaled; to employ one * * :!: or some other competent person agreeable to said Wannebo, whose duty it shall be to supervise and direct said sawing, so that the same shall make merchantable lumber of the greatest market value, and whose duty it shall also be to properly grade, .assort, and scale the same; to make prompt and punctual payment for all bills and claims which may be incurred on account of said entire work, so that no lien shall accrue against any of said lumber, and to indemnify and save said Wannebo harmless from all costs and liability which may arise by reason of any of said work herein contemplated; to finance said entire operation, that is to say, that he will promptly furnish and provide all moneys necessary to promptly and efficiently carry on the same to a sale of said products, and that as security for said money so paid or advanced by him he will receive from said Wannebo (who agrees to give the same) a good and sufficient first mortgage lien upon the aforesaid timber, and that as soon as said Mayhew shall have been repaid such amount he will then cause said mortgage to be satisfied of record.
    “It is further agreed that the title to said lumber shall be and remain in said Wannebo until the same is actually sold, except that said Mayhew shall have an additional lien upon the same to secure him for his said advances, and that in the sale of said lumber said Mayhew shall assist said Wannebo in finding a purchaser or purchasers at the highest and best prices for which the same can be sold, but no sale shall be made, except with the consent and approval of said Wannebo.
    “As to all of said lumber which under this contract is not to be delivered on docks at Grand Marais, the same is to be disposed of in accordance with the mutual agreement which may hereafter be made by and between the parties hereto and at the best price obtainable.
    “Upon the sale of said lumber, both that upon the dock at Grand Marais as well as the remaining parts, it is agreed that the proceeds thereof shall be divided between the parties hereto in manner as follows, which division said Mayhew agrees to receive, and the said Wannebo to allow him in full compensation and payment for all his work and expenses hereunder, to wit:
    “(a) As to all of said lumber sold upon the dock at Grand Marais:
    “(1) At the rate of $4 per thousand feet log scale for cutting and hauling said lumber to said mill.
    “(2) At the rate of $5.50 per thousand feet board measure for said sawing, grading, and piling at said mill.
    “ (3) The actual cost per thousand feet board measure for hauling said lumber to Grand Marais to be the actual cost thereof.
    “(4) At the actual cost per thousand feet board measure for said dockage and said piling at Grand Marais, not, however, exceeding 50c per thousand feet for said dockage, and 50c per thousand feet for said piling, and not to exceed 50c per thousand feet board measure for any additional unforeseen extra expense incurred by said Mayhew in connection with the piling and the maintenance of said lumber in piles at said dock.
    , “(5) In addition.to the foregoing, said Mayhew shall have the additional sum of $1 per thousand feet board measure as to such of said lumber as shall be sold at $20 or less per thousand feet, and said Wannebo shall have the entire difference between the aggregate of the foregoing and the sum for which said lumber shall sell; but, as to all of said lumber which shall sell for more than $20 per thousand feet board measure, said Mayhew shall have one-half of the excess above $20 per thousand feet for which the same may bé sold, and said Wannebo. the- remainder.
    “(b) As to all other lumber so sawed except said spruce, said Wannebo agrees to allow to. and said May-hew agrees to receive in full satisfaction for all his work and expenses, at the rate of $4 per thousand feet log scale for cutting and hauling the same to said mill, at the rate of $5.50 per thousand feet board measure for sawing, grading, and piling the same at said mill, and from any sum for which said lumber may sell in excess of the total of said two items, the one-half thereof shall be paid to said Mayhew, and the other half to said Wannebo.
    “(c) As to all of said spruce timber-so sawed, said Wannebo agrees to allow to ahd the said Mayhew agrees to receive in full satisfaction for all his work and expenses, at the rate of $4- per thousand feet log scale for cutting and hauling said lumber to said mill, at the rate of $5.50 per thousand feet board measure ■ for said sawing, grading, and piling- at said mill, the actual cost per thousand feet board measure for hauling said lumber to Grand Marais, not, however, exceeding $4 per thousand feet, and the actual and necessary expenses in handling or caring for said lumber at Grand Marais prior to a sale thereof, and in addition thereto one-half of the difference between said sums total and the full price for which the same may be sold, the said Wannebo to have and retain the difference.
    “It is further agreed that the lumber when piled at Grand Marais shall be insured in some reputable insurance company, the premium for said insurance to be paid by said Wannebo, but the policies made payable to the parties hereto as their interest may appear.
    “In case the amount of money actually paid by said Mayhew in the performance of his part of this agreement shall exceed $6,000, then, as to such excess only, said Wannebo agrees to pay said Mayhew, in addition to the foregoing allowance to him, interest on such excess at the rate of 8% per annum, the interest to be computed from and during the time said Mayhew shall have such excess so invested, and until the receipt by him of the first moneys obtained from the sales results herein stated.
    “It is further agreed that, in addition to the foregoing allowances, said Wannebo shall pay to said Mayhew the one-fourth of the salary or wages actually and necessarily paid to the person who may do the scaling and have the directions as herein stated.”
    The plaintiff received notice of the sale of the lumber by the following telegram:
    “Received at the United Wireless Telegraph Station.
    “Duluth, Minn., Nov. 15th, 1911.
    “From Grand Marais, Minn., to Hans Wannebo, 624 East 6th St., Duluth, Minn.
    “Cancel insurance lumber shipped today be up next boat. “G. H. Mayhew.”
    The defendant settled for the lumber and gave his notes to Mayhew therefor on November 21st. On November 25th Mr. Mayhew visited the plaintiff at Duluth and informed him that Mr. Stone was the purchaser. On Decémber 1st the plaintiff wrote the defendant the following letter:
    “Fred J. Stone,
    “Detroit, Mich.
    “I am informed that'Mr. George H. Mayhew, of Grand Marais, has sold to you f. o. b. Steamer Ketchem, at Grand Marais, in November of this year, a lot of lumber of which I am the owner. Mr. May-hew has no title thereto; all his right to it is simply a lien. This is to notify you that the full value of that lumber must be accounted for and paid to me, and not Mr. Mayhew. I think it would be to your interest to see to it at once that this is done, otherwise I shall have to hold you personally responsible therefor. Kindly let me hear from you at once, and oblige.
    “Yours very truly,
    “Hans Wannebo,
    “No. 624 East 6th Street, Duluth, Minn.”
    At the close of plaintiff’s proofs the defendant made a motion to direct a verdict, which was granted, and this ruling constitutes the error relied upon in this case.
   Kuhn, J.

(after stating the facts). In reading the contract, there is some difficulty in determining what rights Mayhew was to have in selling the lumber. By its terms, Mayhew bound himself to assist Wannebo “in finding a purchaser or purchasers at the highest and best prices for which the same can be sold;” and the contract further provides, “but no sale shall be made, except with the consent and approval of said Wannebo.” This latter clause is clearly subject to the construction that some other person than Wannebo could arrange for the sale, but that it should not be final and binding, without his consent and approval. It is the claim of Mayhew that he had the right under the contract to arrange for the sale; that by the terms of the contract he also had the right to have his lien discharged by the payment to himself of the first money received from the sale of the lumber. And it appears that under the most favorable construction of the testimony in the case for the plaintiff his (May-hew’s) lien would still exceed in value the amounts received by him from the sale of the lumber. It also appears that Wannebo does not object to the price at which the lumber was sold by Mayhew, but in his testimony places the value at $19 per thousand, the amount paid by Stone.

The learned trial judge was of the opinion that the letter of December 1st was a confirmation of the sale by Mayhew, and that therefore there was no conversion, and the action of trover must fail. With this we are inclined to agree. A careful reading of this letter shows that it does not repudiate the sale. It does not say that Mayhew had no right to sell the lumber, but simply that he has no title thereto, and “all his right to it is simply a lien,” and that therefore the full value of the lumber must be accounted for and paid to Wannebo, and not to Mayhew. As we believe that under the terms of the contract Mayhew had a right to arrange a sale, and as by the letter of December 1st Wannebo, in effect, gave his consent thereto, it cannot be said that there was a conversion of the property in question.

' The circuit judge reached a proper conclusion, and the judgment is affirmed.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    POWELL v. PENNOCK.
    1. Estates oe Decedents — Accounting—Executors and Administrators — Equity—Jurisdiction—Probate Courts.
    After an opportunity had been given to creditors of a decedent to present claims and the estate had been closed, without any claims having been allowed against it, the heirs of decedent were entitled to maintain a bill in equity to recover back and secure an accounting for property alleged to have been fraudulently obtained from the deceased by his second wife.
    2. Same — Equitabue Titie.
    The equitable title to personal property of a decedent is in the heirs who hold it subject to the rights of creditors and the expenses of administration.
    3. Same — Rights of Creditors — Claimants.
    Since the rights of creditors afford- the chief reason for administration of estates, after they have been satisfied, the real purpose of administering has been done away with; if assets are thereafter discovered it would be an idle ceremony to ask for further administration, simply . to distribute the property, when all the interested parties . are of age.
    4. Same.
    In Michigan, probate courts have exclusive jurisdiction over the settlement of estates of decedents, except when their remedies are inadequate or the interposition of the court of equity is necessary for some auxiliary purpose. While administration was pending, ' a bill to discover assets of the estate could not be maintained.
    5. Same — Accounting—Equity.
    Where fiduciary relations exist or fraud is charged, courts of equity have jurisdiction to compel an accounting.
    6. Same — Fraud—Fiduciary Relations.
    Accordingly a suit in equity might be instituted to recover back from the wife of deceased, whose estate had been closed in probate court, property obtained by the wife by fraud or undue influence.
    7. Same — Compromise and Settlement — Executors and Administrators — -Judgment—Res Judicata.
    The objection was not tenable that because the final account of the administrator had been filed and passed upon and the heirs had receipted for their proportion of the property disclosed as a part of such estate, the order of the court was conclusive against such complainants.
    Appeal from Barry; Smith, J.
    Submitted April 9, 1914.
    (Docket No. 14.)
    Decided July 24, 1914.
    Bill by Ella L. Powell and Addison J. Pennock against Clara Pennock for a decree requiring defendant to account for property in her hands as part of the estate of Asa B. Pennock, deceased. From an order sustaining a demurrer to the bill of complaint, complainants appeal.
    Reversed.

      Colgrove & Potter and Alonzo D. Cadwallader, for complainants.

      Charles H. Bauer (Alfred J. Mills, of counsel), for defendant.
   Kuhn, J.

This is an appeal from an order of the circuit court of the county of Barry, in chancery, sustaining a demurrer by the defendant to the bill of complaint filed in this case. The complainants are the son and daughter of Asa B. Pennock, deceased, and the defendant is his widow. She was his second wife, having married him on April 9, 1910. Asa B. Pennock died July 23, 1911, and on July 27, 1911, the widow filed a petition for the appointment of an administrator of his estate, and subsequently Charles Moreau was appointed to that office. An inventory was filed, which was unsatisfactory to complainants, and a complaint was made by Addison J. Pennock in the probate court, under section 9355, 3 Comp. Laws, against the defendant, seeking a discovery of certain property alleged to belong to the estate, which, it is claimed, was in her possession. Interrogations were filed and answered, and an oral examination was had with reference thereto in court. Thereafter the administrator filed his petition for an order to allow him to use the funds of the estate to defray the expenses necessary to bring a suit against the defendant for the recovery of the property alleged in the petition to belong to the estate and in the hands of the defendant. The probate court granted the petition, but upon condition that Addison J. Pennock and Ella L. Powell file an indemnity bond in the sum of $1,000 to indemnify the defendant, Clara Pennock, in the event that no recovery was had against her. No bond was given, and, while the bill of complaint does not so allege, the circuit judge in his opinion states that an appeal was taken from this order of the probate court, it being insisted that the requirement of a $1,000 bond was improper and the order should be relieved of this condition. This appeal was dismissed in the circuit court, and the case certified back to the probate court. The bill alleges that there were no claims allowed against the estate, and that an order was entered by the probate court closing the time for the presentation and hearing of claims against the estate. No suit was brought by the administrator against the defendant, and, by consent of all parties, proceedings were had in the probate court which resulted in the discharge of the administrator on January 22, 1913. The following receipt was filed: -- - ■

“Hastings, Mich., Jan. 22, 1913.

“In the Matter of the Estate of Asa B. Pennock, Deceased.

“Received of Charles Moreau, administrator of the estate of the said deceased, eight hundred and forty-eight and 54/100 dollars, in full for our share respectively of the funds now in his hands belonging to said estate as inventoried including additional amount added to said inventory by the administrator, and do hereby consent to his discharge- as such administrator,

“Addison J. Pennock. [L. S.]

“Ella L. Powell. [L. S.]

“Claea Pennock. [L. S.]”

The bill of complaint' in this cause was filed -on April 11, 1913, and alleges, that the defendant obtained from Asa B. Pennock during his lifetime certain property amounting to about $35,000, consisting mostly of money, certificates of deposit and United States government bonds, by fraud, force, and undue influence; that she has no legal or equitable title to the property, except as she may have the widow’s right to her distributive share. The prayer of the bill asks that the defendant come to a just and true accounting with the complainants; that the.complainants be decreed to be entitled to two-thirds of this money and property, amounting to $35,000, alleged to have been obtained by fraud by defendant from Asa B. Pennock, the father of complainants.

The principal causes of demurrer argued in the court below and on this appeal are: First, that the probate court has exclusive jurisdiction to hear and determine all the questions in this case; and, second, that the matter having been in the probate court and the administrator having been discharged by the consent of all the parties interested, the orders of the probate court have adjudicated the case, and these orders are final, and, as a result, complainants have no standing in this court. The learned circuit judge was of the opinion that these causes were well taken, especially the first one, that the probate court has exclusive jurisdiction to determine this case and that a court of chancery has no jurisdiction except as it may aid the court in the equitable consideration of such questions as could not well be determined in the probate court.

At the death of Asa B. Pennock the legal title of his personal property was held in abeyance until the appointment of an administrator, and then vested in him for the purpose of administration. The equitable title to the personal property after his death was at all times in the heirs, who owned it, subject to the rights of creditors and the expenses of administration. This right of creditors is the principal reason for administration, and therefore, if creditors have been satisfied, the real purpose of administration has, in effect, been done away with. 1 Woerner on Administration [1st Ed.], p. 432. In the instant case administration has been had, a time was fixed for hearing claims, and an order made closing the hearing on claims, and no claims were presented. By consent the estate was then closed and the administrator was discharged. The main purpose of administration — to give creditors an opportunity to be heard— was thus satisfied, and, if additional assets should be discovered after the close of such administration, it would seem to be an idle proceeding to again ask for administration simply for the purpose of distribution when all the parties in interest are of. full age. In this State the probate courts have exclusive jurisdiction over the settlement of estates of deceased persons, except when their remedies are inadequate or the interposition of equity is necessary for some auxiliary purpose (Nolan v. Garrison, 156 Mich. 397 [120 N. W. 977]; Davis v. McCamman, 165 Mich. 287 [130 N. W. 691]; In re McNamara’s Estate, 167 Mich. 406 [132 N. W. 1078]; Graham v. Graham, 171 Mich. 307 [137 N. W. 153]; Brooks v. Hargrave, 179 Mich. 136 [146 N. W. 325]), and. if administration were still pending there can be no question that this bill could not be maintained. However, Michigan is one of the States where the rule is established that, where there are no claims for adjustment, administration is unnecessary, and settlement and adjustment may be made by the heirs. Foote v. Foote, 61 Mich. 181 (28 N. W. 90); Letts v. Letts, 73 Mich. 138 (41 N. W. 99); Ewers v. White’s Estate, 114 Mich. 266 (72 N. W. 184); 14 Cyc. p. 109.

In our opinion, the allegations of the bill are sufficient to give the chancery court jurisdiction. The general rule is stated in 14 Cyc. p. 157, as follows:

“Actions Between Heirs and Distributees — a. Right of Action and Form of Remedy. An heir or distributee may maintain a bill in equity against his coheirs or codistributees for an accounting, or for the purpose of obtaining his distributive share of an estate, where the administration has been closed, or where there has been no administration and there are no creditors, or where there has been a mistake as to the value of the property of the decedent or fraud in settling the estate.”

See, also, Moore v. Brandenburg, 248 Ill. 232 (93 N. E. 733, 140 Am. St. Rep. 206).

Where fiduciary relations exist or fraud is charged, courts of equity have jurisdiction to compel an accounting. Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554); Mack v. Village of Frankfort, 123 Mich. 421 (82 N. W. 209); Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036).

■ It is urged that complainants have an adequate remedy at law. In this State, in many cases, courts of equity have concurrent jurisdiction with courts of law.

Here the relation is that of husband and wife. The defendant is charged with having obtained the property in controversy by fraud and undue influence. Under these circumstances, the parties aggrieved, being the complainants in this case, had a choice of remedies, and may proceed in equity for an accounting and pursue the fund.

We are also of the opinion that there is no merit in the claim that the questions raised by this bill have been adjudicated by the probate court. The receipt filed by the heirs clearly shows that it was only given for such part of the estate as actually came into the hands of the administrator. The final account of the administrator did not mention the property involved in this litigation, and can only be binding and conclusive as to the matters therein contained. Porter v. Long, 124 Mich. 584 (83 N. W. 601); In re Ward’s Estate, 152 Mich. 218 (116 N. W. 23).

The decree of the lower court sustaining the demurrer is reversed, and the case is remanded for leave to answer in accordance with the rules and practice of the court.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Brooke, J.

text:
    HANNAN v. LARSEN.
    Husband and Wife — Saues—Competency.
    Conflicting testimony relating to the mental condition and competency of decedent considered, and held, to establish her capacity to execute a hill of sale of her household furniture and certain notes, with the advice and assistance of her attorney.
    Appeal from Wayne; Van Zile, J-:
    Submitted May 1, 1914.
    (Docket No. 52.)
    Decided July 24, 1914.
    Bill by Charles S. Hannan, administrator of .the estate of Helen R. G. Hannan,' deceased, against Harold J. Larsen for the cancellation of a certain conveyance, for incompeteney of the decedent. From a decree for defendant, complainant appeals.
    Affirmed.

      Charles S. Hampton, for complainant.

      Louis C. Wurzer, for defendant.
   Brooke, J.

The bill of complaint in this cause is filed by complainant, as administrator of the estate of Helen R. Hannan; its purpose being to secure the cancellation of a bill of sale purporting to convey to defendant certain household furniture, the property of said decedent in her lifetime, and to compel defendant to account for the proceeds of certain promissory notes sold by defendant to said decedent.

The record discloses the following facts: Complainant was married to said Helen R. Hannan in the year 1894. She had become'addicted to the use of drugs prior to her marriage, but was supposed to have overcome her habit at that time. Later she resumed the habit, and seems to have ultimately become confirmed in the use of such drugs as chloral and sulphonal.

Frequent separations for short periods occurred between complainant and his wife prior to 1908, in which year decedent left complainant, and he filed a bill for divorce. In May, 1909, she was committed to a detention hospital in Chicago and was adjudged insane. A short time thereafter she secured her release and came to Detroit, where a reconciliation was effected between herself and complainant, and they continued to live together for upwards of a year, when they finally separated in January, 1911.

It appears- that decedent was a woman of considerable property, and that upon the resumption of marital relations in November, 1909, she loaned to complainant $8,600, taking from him his promissory note for that sum secured by a certificate of stock for $10,000 in the Grainger-Hannan Company, which concern complainant had assisted in organizing.

When the final separation occurred, Mr. Hampton, complainant’s solicitor, represented the decedent, while Mr. Alfred Lucking represented complainant, in the settlement of the financial differences between the parties. By the terms of the settlement complainant’s indebtedness was ascertained and divided into a series of notes of $150 each, payable monthly.

Decedent sought and secured a divorce from complainant December 15, 1911. In the same month decedent signed an order authorizing defendant to dispose of the unpaid notes (48 in number), who, after attempting to sell them elsewhere, finally, about January 13, 1912, sold them to complainant for the sum of $4,675. Of this sum defendant paid to decedent $3,500, retaining the balance and taking a receipt in full from decedent covering the transaction.

On April 12, 1912, decedent executed a formal bill of sale to defendant of her household furniture, which at that time was in storage in a Chicago warehouse. The expressed consideration is stated as “$1 and other valuable consideration,” but defendant claims to have paid therefor the sum of $500. He also claims to have paid an additional sum of $200 for certain rugs, not included in the bill of sale, but ordered by decedent to be shipped to him from Chicago.

On April 25, 1912, decedent, having in the meantime gone from Chicago to Mt. Clemens and thence to Detroit, was discovered, in her room at the Hotel Pontchartrain, dead. Complainant was appointed administrator of the estate of his divorced wife, and this suit followed. Broadly the bill charges, and complainant by evidence sought to establish, the fact that on January 13, 1912, and on April 12, 1912, decedent was mentally incompetent to transact the business evidenced by the instruments she signed on those days. Bearing upon this question much and conflicting testimony was introduced.

Comment upon this feature' of the case is unnecessary, except to point out that much of the evidence introduced on behalf of complainant, if true and capable of sustaining the inferences drawn therefrom by complainant, would tend to establish the fact that decedent was mentally incompetent for several years prior to her death. Yet we find that during this period and after the adjudication of insanity, now strongly relied upon by complainant, complainant did not hesitate to do much and important business with decedent, evidently treating (if not considering) her as compos mentis. In 1909 he borrowed from her $8,600, and thereafter lived with her for more than a year after having filed a bill for divorce. Ordinarily' husbands do not seek to divorce insane wives. In January, 1911, he dealt with her as a sane woman in the settlement of his indebtedness to her, and Mr. Hampton, complainant’s solicitor, represented her in that transaction. It is inconceivable that either complainant or Mr. Hampton believed her incompetent at that time.

In December, 1911, decedent secured- a divorce. Though personally served, complainant gave no hint to the court that his wife was mentally unbalanced. Her condition was such that her solicitor in that cause discovered no infirmity, and the court, in granting the decree, must certainly have been convinced of her sanity.

On January 13, 1912, but three months before her death, complainant himself bought from her through defendant, at a heavy discount, the notes he had given her. In all his dealings with his wife, we must assume that complainant honestly believed her to be sane, otherwise he would stand convicted of the grossest imposition, not only upon her, but upon the court. His acts in the premises are, in our opinion, more convincing of her sanity than his testimony to the contrary. A careful examination of the record convinces us that the decedent sometimes, perhaps frequently, while under the influence of drugs, acted irrationally, but that up to the day of her death she continued to be possessed of such mental vigor as to enable her to transact her business affairs,- some of which were of very considerable magnitude and importance, without exciting a doubt as to her sanity in the minds of those with whom she dealt. It is true that her lawyers in Chicago testified that in their opinion she was mentally deficient in the early part of the year 1912. It is, however, significant that these same attorneys rendered her professional services and received compensation therefor during this- identical period, and that their opinions given in evidence were based upon facts ascertained after the services were rendered and upon subsequent reflection.

It is urged by complainant that the consideration (8700) for the household goods and rugs is so grossly inadequate as in itself to require relief. These goods had been in use some 15 years. The learned circuit judge held, and we are disposed to agree with his finding, that the consideration was not inadequate.

Further complaint is made of the admission of evidence of the defendant equally within the knowledge of the deceased. It is not necessary to predicate our conclusions upon such evidence. The conceded facts and the written evidence in our opinion fully warrant the result.

The decree is affirmed, with costs.

McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    LUCE v. STATE HIGHWAY COMMISSIONER.
    1. Highways — Counties — Trunk Line Highways — State Reward Highways — Statutes.
    Under Act No. 334, Pub. Acts 1913, establishing trunk line highways and providing for. State assistance in creating and maintaining .them, the counties of Branch, Calhoun and St. Joseph were not entitled to petition the State highway commissioner to establish a trunk line highway which was not part of the highway system designated in the act: the proviso in section 2 being intended to apply to counties which disagree as to the course of the trunk line highways. Mandamus will not issue to require the commissioner . to survey and furnish estimates for such proposed line of highway separate from or disconnected with the main or trunk lines.
    2. Statutes — Construction—Proviso.
    The general office of a proviso is to limit, modify and explain the main part of the section to which it is attached rather than to enlarge its provisions, unless it is clearly the intention of the legislature to give the proviso a more comprehensive effect.

      Certiorari to Branch; Knowlen, J.
    Submitted June 16, 1914.
    (Calendar No. 26,252.)
    Decided July 24, 1914.
    Mandamus by Emery G. Luce and others, as board of county road commissioners of Branch county, against Frank F. Rogers, State highway commissioner, for an order requiring respondent to entertain a petition of relators for the establishment of a State reward trunk line highway. Writ denied. Relators bring error.
    Affirmed.

      C. C. Johnson, Charles U. Champion, and LocJcerby & Bowen, for appellants.

      Grant Fellows, Attorney General, and Samuel D. Pepper, Assistant Attorney General, for appellee.
   Kuhn, J.

The legislature, at its session in 1913, passed Act No. 334, with this title:

“An act to provide for the establishment, survey, improvement and maintenance of State reward trunk line highways, to provide for the payment of double State reward thereon, to define the duties of State, county, good roads district and township officers in regard thereto, and to appropriate funds to carry out the provisions thereof.”

Section 1 of the act provides as follows:

“Provision is hereby made for the establishment of State reward trunk line highways. These highways which are laid out as hereinafter provided shall be improved, surveyed, maintained and rewarded in accordance with the provisions of this act.”

Section 2 is in part as follows:

“The State reward trunk line highways shall be composed of the highways and bridges constituting the routes indicated in the following statement of divisions.”

Then follow 10 divisions, which provide for continuous highways between terminal points, the course of the highways being indicated by reference to various cities and villages along the proposed lines. At the end of section 2 is the following proviso:

“Provided, that upon petition of two or more contiguous counties through their boards of county road commissioners in counties under the county road system, or through their boards of' supervisors in other counties, or upon his own action, the State highway commissioner shall make preliminary surveys and such other investigations as he shall deem necessary of one or more routes for State reward trunk line highways, through such counties. After investigation the State highway commissioner shall submit to such county road commissioner, boards of supervisors, good roads district commissioners or township boards as the case may be, maps showing feasible routes and approximate estimates of cost of building over each of said routes, when the said boards shall concur upon one of such routes which shall then be known as a part of the State reward trunk line highway system. The maximum number of miles of trunk line highways which may be established in any county, shall be computed by multiplying the number of surveyed townships by three fractional townships to be computed pro rata.”

It is the construction of this proviso which occasioned the present controversy. Relators contend that this proviso is practically a separate enactment providing for the establishment of additional trunk line highways other than those mentioned in any one or all of the 10 divisions in section 2 of the act. The counties of Branch, Calhoun, and St. Joseph, being three contiguous counties under the county road system, made application through their respective boards of county road commissioners to the State highway commissioner for a State reward trunk line through their respective counties, which line was no part of the lines specifically designated in the several divisions of the act. The county authorities took the preliminary steps for the establishment of the highway, and on the 16th day of February, 1914, the relators, who are the board of county road commissioners of Branch county, by resolution and a notice advised respondent of the establishment of the1 highway, the raising of the necessary money therefor, and requesting of him a survey, plans, and specifications and a State reward under provisions of said Act No. 334. Acting upon an opinion of the attorney general of the State that there was no authority of law for such action, the respondent refused to act, and a petition for mandamus was filed in the circuit court of Branch county to compel the respondent to proceed as prayed for in the petition. After a hearing, the petition was denied, and the proceeding is brought here by certiorari for review.

The construction placed upon the proviso by the attorney general is that its purpose was simply to provide a means of settling conflicting claims of various counties through which the divisions pass as to the exact routes to be selected, and that the trunk line system is confined exclusively to the 10 divisions enumerated in section 2. Relators claim that section 9, which provides as follows:

“The State highway commissioner shall as soon as practicable after the taking effect of this act cause preliminary surveys to be made and establish the routes of the several divisions of the State trunk line highways herein provided for, and he is hereby empowered to employ such engineers, clerks and other employees as may be necessary to carry out the provisions of.this act”

—gives the State highway commissioner the sole and arbitrary power to select the highways. The legislature did not attempt in the act to define exactly the course of each trunk line highway, but simply indicated the general direction by referring to various cities and villages along the proposed route. The greater part of the burden of improving these highways falls upon the localities themselves, and where there are more than one route between two points in a division which could be utilized for the purpose of the trunk line highway, it seems reasonable that the locality upon which the greater part of the burden of improvement falls should have some voice in the selection of the route. It is claimed, and we are satisfied that it is the proper construction to give the proviso, that it was this that the legislature had in mind in adding the proviso to section 2. This then provides the machinery in case of a dispute between counties as to the proposed route, and the powers granted the State highway commissioner by section 9 must be considered in connection with the proviso. In case of such dispute, it would become the duty of the State highway commissioner to make surveys of the different routes which might be followed, and to submit them to the localities so that they might decide for themselves as to which route should be finally adopted by the State highway commissioner. A reading of the whole act is convincing that it was the intention of the legislature to establish trunk line highways in the same sense as we use the words “trunk line” as applied to railroads connecting termini which are some distance apart. This construction of the proviso is in harmony with the general rule of statutory construction that the office of a proviso is to limit, modify, or explain the main part of the section to which it is attached, rather than to enlarge its provisions, unless it is clearly apparent that the legislature intended a more comprehensive meaning. 36 Cyc. p. 1131; Endlich on the Interpretation of Statutes, §§ 185, 186.

Before being advised by the attorney general, it appears that the State highway commissioner construed the act as now contended for by relators, and it is urged that the construction placed upon a statute by the officer whose duty it is to execute it is entitled to great consideration. This is a recent act of the legislature, and the construction relied upon was not followed for any length of time. The construction placed upon- the act by the State highway commissioner was undoubtedly a matter of first impression, and he changed his views when advised by the attorney general, whose duty it is to advise the various State officers as to these matters.

The judgment of the circuit court is affirmed, with costs.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore,' and Steere, JJ., concurred.


text:
    BUILDING COMMISSION OF THE CITY OF DETROIT v. KUNIN.
    1. Municipal Corporations — Equity—Ordinances—Enforcement of Building Ordinance.
    An ordinance of the city of Detroit providing that the department of buildings shall have power, after notice and a hearing, to stop the construction, alteration, etc., of any building which violates the restrictions of the ordinance, and that the department may apply to the court to restrain the further violation of its terms, authorizes an injunction at the instance of the department as if the structure had been first declared to be a public nuisance.
    2. Same — Building Code — Restrictions.
    Such ordinance Is not invalid because it prescribes what percentage of a lot may be occupied with a tenement, and prescribes the size of the yard at the rear: the restrictions being for the benefit of the community as a whole and of the adjacent property.

      3. Same — Presumptions—Burden.
    The presumption being that an ordinance is valid, the duty of establishing its invalidity rests on the party who attacks it.
    4. Same — Construction.
    The court has no right to invade the province of the legislature, and is required, if it can consistently do so, to give an ordinance such a construction as will sustain it: the power to declare an enactment invalid is limited to cases in which it is clearly made to appear to be unreasonable or oppressive in its operation.
    5. Same — Unreasonableness.
    Mere evidence that some unreasonable result occurs in an individual case is not ground sufficient to invalidate an ordinance.
    6. Same — Injunction—Estoppel,
    Complainant building commission was not estopped from maintaining an injunction bill to prevent the erection of an apartment building not in conformity with the building code, although it had granted a permit to construct the building' where the ordinance did not require the issuance of a permit for the erection of a tenement occupied by three or more families who do cooking, etc., on the premises.
    Appeal from Wayne; Murphy, J,
    Submitted June 17, 1914.
    (Docket No. 94.)
    Decided July 24, 1914.
    Bill by the building commission of the city of Detroit against Samuel Kunin and others for an injunction to prohibit an alleged violation of the municipal building code. From a decree for complainant, defendants appeal.
    Affirmed.

      Richard, I. Lawson, Corporation Counsel, and James H. Lee, Assistant Corporation Counsel, for complainant.

      McRugh, Gallagher, O’Neil & McGann, for defendants.
   Kuhn, J.

The bill of complaint in this cause prays for an injunction restraining the defendants from continuing the construction of a building in the city of Detroit alleged to be in violation of an ordinance of said city known as the building code. The defendants demurred to the bill of complaint, and, upon their demurrer being overruled, filed an answer and cross-bill denying complainant’s right to injunctive relief. Upon hearing, the cross-bill was dismissed and the defendants enjoined, as prayed for in complainant’s bill of complaint. From this decree the defendants have appealed, and counsel, in their brief, state that the questions involved are as follows:

(1) May a municipality enjoin a threatened violation of an ordinance?

(2) Is section 7, art. 31 of the building code valid?

(3) After issuing the permit and allowing defendants to expend from $10,000 to $12,000 upon the building, is the city estopped from complaining of the violation of the ordinance?

In support of the contention that equity will not enjoin a threatened violation of a municipal ordinance, the cases of the Village of St. Johns v. McFarlan, 33 Mich. 72 (20 Am. Rep. 671), and Micks v. Mason, 145 Mich. 212, 214, 215 (108 N. W. 707, 11 L. R. A. [N. S.] 653, 9 Am. & Eng. Ann. Cas. 291), are relied upon. In the latter case this court said:

“The question here is whether a municipality in pursuance to delegated authority to fix fire limits and to direct the manner of constructing buildings within such district with respect to protection against fire, may, by ordinance, provide that a building not so constructed shall be deemed a nuisance and authorize its abatement as such. Such right was not negatived by Village of St. Johns v. McFarlan, supra, and has never been denied by this court. The question has often arisen in other jurisdictions, and, so far as our examination enlightens us, the authority to abate new buildings constructed in violation of existing ordinances has been affirmed whenever the question has arisen. Not in all cases has the right to abate been rested on the ground that a building not constructed in compliance with the ordinance is a nuisance per se, ,but in some it has been deemed sufficient to say that the building so erected was erected in defiance of law ; but, whatever the reasoning adopted, the right has been affirmed. See Hine v. City of New Haven, 40 Conn. 478; Baumgartner v. Hasty, 100 Ind. 575 [50 Am. Rep. 830]; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201 [28 N. E. 434] 13 L. R. A. 481 [28 Am. St. Rep. 185]; Commonwealth v. McDonald, 16 Serg. & R. (Pa.) 390; Inhabitants of Arundel v. McCulloch, 10 Mass. 70; Klingler v. Bickel, 117 Pa. 326 [11 Atl. 555] (distinguishing Fields v. Stokley, 99 Pa. 306 [44 Am. Rep. 109], cited by the circuit judge); Ford v. Thralkill, 84 Ga. 169 [10 S. E. 600]; McKibbin v. Fort Smith, 35 Ark. 352; Eichenlaub v. City of St. Joseph, 113 Mo. 395 [21 S. W. 8], 18 L. R. A. 590; Freund on Police Power, § 528.”

The ordinance in question provides, in addition to its penal provisions, that:

“The department of buildings shall have the power after notice and hearing to stop the construction, repair, alteration or removal of any building, fence, billboard, sign or other structure, when being constructed in violation of this ordinance, and to order in writing- any and all persons in any way engaged, to stop and desist from such construction, and such construction shall not be resumed until the terms of this ordinance shall have been complied with.

“If such order is not obeyed, the department of buildings may apply to any court of competent jurisdiction to restrain any person from such disobedience, notwithstanding such disobedience may be punishable by fine or imprisonment as hereinafter provided.”

It is true that the ordinance does not in terms declare a building erected in violation of its provisions a nuisance, but, by virtue of this provision for its enforcement, it does so in effect, and therefore, in our opinion, brings the situation within the spirit of decisions above cited.

The other two questions involved in this appeal are clearly treated in the opinion of the learned trial judge in deciding the cause below, and, as we agree with his conclusions, will adopt his opinion as our own:

“Pursuant to a local act passed at the legislative session of 1907, authorizing the city of Detroit to regulate the construction of buildings, and to establish a department of buildings, the common council of that city duly adopted an ordinance known as the building code of the city of Detroit, which was in force at the time in issue herein.

“By the terms of the code, any building intended to be occupied, wholly or in part, as a residence for three or more_ families living independently of each other, and having cooking done on the premises, is called a ‘tenement.’ __ Apparently through omission no building permit is required to be issued by the department of buildings for the construction of a tenement, although permits must be obtained before the construction of any other kind of building may be begun.

“Upon July 21, 1913, however, the department of buildings issued a building permit for a tenement to the defendant Swirskey, as architect, and to the defendant Kunin, as owner of a lot situated on the northeast corner of Third and Merrick avenues, in the city of Detroit, this lot, having a frontage as platted of 45 feet on Third avenue, and a depth of 125 feet on Merrick avenue. The accompanying plans filed with the department of buildings showed that a brick veneered building of nine housekeeping apartments for families was intended to be built, entrance into three of which was to be had from Third avenue, and entrance to the others was to be had from Merrick avenue. One of the three apartments facing Third avenue was in the basement; the others, for the first and second floors of the building, had their entrance from the first floor. Work upon the construction of the building was begun soon after the permit was obtained. As planned, this tenement is in compliance with section 4 of article 31 of the code. By that section no tenement is permitted to cover more than 80 per cent, of a lot bounded by two or more intersecting streets.

“It is contended in this case, however, that, as constructed, the building violates so much of section 7 of article 31 of the code as provides that: Tn the rear of every tenement hereafter erected, there shall be a yard, extending across the entire width of the lot, at every point open from the ground to the sky unobstructed except by fire escapes or uninclosed outside stairs and porches. The depth of said yard, measured in the clear from the porches to the rear line of the lot shall not be less than 15 feet in any part.’

“The defendant Philip H. Garelick is the contractor for the work of erecting the building; he also appears to have some interest in the land.

“Upon November 24, 1913, the department of, buildings revoked the permit issued for the construction of the building, upon the ground that its erection would be contrary to that part of section 7 of article 31 just quoted. This action of the department was taken, pursuant to a writ of mandamus issued out of this court in the case of Stella W. Stewart, Relator, v. Department of Buildings, Respondent, being File No. 58,063. These defendants were not parties to that proceeding, and are therefore not bound by it. It was instituted by Mrs. Stewart as the owner of property immediately contiguous on the north of the premises herein involved. The writ which was granted provided that, as the building in' question was being erected in violation of section 7 of article 31, cited above, the department of buildings should, after due notice to the defendants Kunin and Swirskey, enter an order stopping the construction of the building and preventing resumption of the work thereon until the building code had been complied with in the respect mentioned. This writ of mandamus issued November 20, 1913.

“After due revocation of the permit by the department of buildings, work was resumed by the defendants Kunin and Swirskey upon the building, and was continued, .intermittently, if not consecutively, until as late a day as December 30,1913. Some of this last-mentioned work, however, if not all of it, was prosecuted by them in order that thereby the issues raised herein might properly be made the basis of a suitable action.

“This bill was filed by the department of buildings —described in the bill as the building commission of the city of Detroit — on January 10, 1914, and seeks permanently to enjoin the defendants from the further erection of the building until compliance has been had with the provisions of the building code.

“Demurrer was interposed by the defendants, and, coming on to be heard by Judge Van Zile in this court, was overruled by him, and the cause was set down for immediate hearing as soon as answer should be filed. The defendants have now answered, and also seek affirmative relief. They ask that the depart., ment of buildings be enjoined from in any manner interfering with the completion of the building.

“During the progress of the hearing a view of the premises was had. It was then learned by the complainant for the first time that there had been, without authority, a departure from the plan filed with it and pursuant to which its permit was originally granted. The plan providing for the entrances to the first and second floor apartments upon Third avenue has been abandoned, and these apartments have been constructed so that entrance to them would be from Merrick avenue. Thus the only apartment left facing Third avenue was the one in the basement upon that street. This has resulted practically in making the frontage of the tenement wholly upon Merrick avenue.

. “As bearing upon the general attitude of the defendants, it is likewise significant to note that the view of the premises also disclosed their failure to comply with an alteration exacted by the department by which the rear porches were to be reduced in size. These porches have been constructed as originally planned, and not in conformity with the reduction in size ordered.

“The defendants take the position that the requirement of section 7 of article 31, above cited, is so unreasonable that it must be held invalid. They furthermore invoke the defense of estoppel. In this respect it is contended that the complainant is guilty of laches in the premises, in permitting the work to be undertaken under its permit and to be prosecuted until a time when the defendants, in good faith, had expended a very large sum of money upon their undertaking.

“Approaching the question of the claimed invalidity of section 7, one is confronted with the presumption of the validity of this enactment. The duty -of establishing invalidity rests upon the defendants. The court is required, if it can consistently do so, to give to the provision such a reasonable construction as will sustain it. It has no right to invade the legislative province. Its power is confined to those cases in which a municipal ordinance is clearly and manifestly made to appear to be unreasonable or oppressive in its operation.

“I am unable to reach the conclusion contended for in this respect by the defendants. Upon analysis of this section it may appear that some other or different provision might equally serve the demands of wholesome housing in a populous community such as the city of Detroit. That, however, is a matter for the legislative, and not the judicial, discretion. Such provisions as these are intended not solely for the welfare of the occupants of the premises being constructed; they are beneficial as well for those who live in buildings immediately adjacent and for the community as a whole. Just what specific considerations operated upon the common council in reaching the conclusion enacted by the ordinance does not appear; nor is there any testimony which, in my view, shows the application of section 7 to the lot in question to be unreasonable. This much must be taken for granted: The common council ácted with knowledge of the prevailing width and depth of lots in this community. Even should some' unreasonable result appear in an isolated case as the consequence of the council’s action, this could not be made to justify invalidating the enactment. I-n my judgment, therefore, neither in its general terms nor in its specific application is the ordinance shown to be unreasonable.

“The discovery upon the inspection of the premises that the plan of the building had been changed without authority so as to give it, as was said above, practically its whole frontage on Merrick avenue presents a situation not contemplated by the pleadings.

“Under the plan as originally presented and approved by the department, the contemplated building was approved as coming within the provisions of section _ 4, and the position was taken that section 7, being in conflict therewith, was not applicable.

“In my view, however, these two sections must be read together, or construed as in harmony with each other, and not hostile to each other. This building, with these two sections so construed, must, in my judgment, as it now stands, be regarded as fronting upon Merrick avenue, and not on Third avenue, as the department viewed the matter when issuing the permit. This is the situation which has been created by the voluntary and unwarranted act of the defendants. It may be noted in passing that, even if the building were regarded as fronting on Third avenue and its rear as abutting the alley to the east, the provision of section 7 is violated.

“With section 7 held to be enforceable, is it shown that the defendants are entitled to any equitable relief under their claim that the complainant is estopped from maintaining its bill? No permit was required as a prerequisite to the commencement of this building. The issuance of one was a mere gratuity. The department acted under the misconstruction of the code in making the interpretation that section 7 had no application to the situation. Here, then, was a permit issued without sanction of the ordinance and under a misconstruction of it. The department files this bill under the authority given to it by section 7 of article 2, in which it is given power to ‘apply to any court of competent jurisdiction to restrain any person from such disobedience [as is here involved] notwithstanding such disobedience may be punishable by fine or imprisonment.’

“The violation of article 7 of section 31 was brought to the attention of the complainant some time before September 25, 1913. It was brought to the attention of these defendants, surely, upon October 10, 1913, if not before. Upon this last-named date they received a written notice from the complainant, advising them that further continuance of the work must be done at their own peril.

“What, then, is the situation of the defendants? They procured a permit which had no legal status, since no such authorization is warranted by the ordinance. The defendants must be held to have had notice of this. All persons dealing with municipalities and their agents act with constructive, if not actual, knowledge of the limitations upon the delegated powers of cities and ' their instrumentalities. The defendants took nothing with their permit. It was an extralegal instrument. Of itself, it was without efficacy.

“The complainant concededly did allow the defendants to proceed with the building until the formal order of revocation was made. Does this operate toestop it herein? In discussing this question, the conduct of the defendants must be. considered.

“By the terms, of section 2.of article 31 they were required to comply with the terms of the building code. By section 8 of article 3 it is made unlawful to alter or modify the plans approved by the department. Any alteration may be made only after written application therefor is presented in writing, and written approval obtained. Section 9, art. 3. The defendants have wilfully disregarded these important provisions. Furthermore, they had notice, as has already been stated, as early as October 10, 1913, and probably earlier, that this building, as approved, was in contravention of the ordinance.

“Keeping these facts in mind, what is to be said of the claim of estoppel? It is the position of the complainant that estoppel cannot be interposed to deprive the city of the beneficial enforcement of the ordinance. It is contended that a ministerial board, such as the complainant, cannot by such conduct as is here shown foreclose compliance with the' ordinance. In my view, it is not necessary to pass upon that contention, for it is. beside the facts of this case.

“The facts which call for the application of a principle are these: There was consent by the complainant to the erection of an unlawful building. There was notice while work was in progress to the defendants that their plan was unlawful, and some continuation of the work by them after such notice. They themselves disregarded the obligation- of the ordinance by building, without consent, a structure different from the one for which they obtained approval. They failed to comply with the valid order of the board with respect to the rear porches.

“In my judgment, they are not in a position to invoke the doctrine of equitable estoppel, even though, under other circumstances, where entire good faith upon the part of those making it is shown, it be available as against a municipality in an analogous situation.

“A decree may be taken dismissing the cross-bill and granting the relief sought in the bill.”

The decree is affirmed, with costs to the complainant.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    HAYWARD v. CHASE.
    1. Tender — Foreclosure of Mortgages — Evidence.
    Evidence that defendant in a foreclosure suit went to the place at which the mortgage was payable, having with her sufficient funds to pay the indebtedness secured by the mortgage, and that she found no one to whom payment could be made, also, that later the complainant referred her to his attorney who denied that he had anything to do with the mortgage, considered, and held, insufficient in the face of a denial of the facts so stated, by complainant and his attorney, to establish a sufficient tender.
    2. Same — Discharge of Lien.
    Unless a tender is refused in bad faith, the lien of a mortgage is not' discharged.

      3. Equity — Hearing—Reopening Testimony — Mortgages.
    Where complainant apparently closed his. proofs and submitted the case to the court without argument, but his attorneys later served notice on the solicitor for defendant that further testimony would be taken at a time stated, and where defendant’s solicitor appeared at the time mentioned, and objected to the taking of further proofs, which were, however, received and considered, the trial court acted within its lawful discretion.
    Appeal from Berrien; Bridgman, J.
    Submitted June 18, 1914.
    (Docket No. 119.)
    Decided July 24, 1914.
    Bill by James Hayward against Julia Chase, Nellie K. Berkey and Others for the foreclosure of a mortgage. From a decree for complainant, defendant Berkey appeals.
    Affirmed.

      Cady & Andrews, for. complainant.

      Charles H. Kavanagh (J. Marion Miller, of counsel), for defendant Berkey.
   Kuhn, J.

On the 26th day of January, 1911, the defendant Julia Chase executed a real estate mortgage on certain lots in the village of Berrien Springs to secure the repayment of $8,170, borrowed by her from the complainant, the obligation to become due two years after date, with interest at 6 per cent., and was made payable at 5009 Champlain avenue, Chicago, Ill. The mortgaged premises were conveyed by Julia Chase to Nellie K. Berkey on July 25, 1911, who, together with her husband, executed, on the same day, a second mortgage on the premises to the defendant. Samuel Brown, Jr. On the following day, July 26, 1911, Nellie K. Berkey and her husband conveyed the premises by warranty deed to the defendant Robert M. McNair. No interest having been paid, on the 10th day of April, 1912, the complainant filed a suit to foreclose this mortgage; but Nellie K. Berkey was not made a party, for the reason that the record showed that she had parted with all her interest in the premises. After decree of foreclosure was entered, Mrs. Berkey filed a petition in the case, alleging that her deed to McNair was given only as a pledge of her interest in the property to secure an indebtedness due McNair from her, and prayed the right to intervene. As a result the suit to foreclose the mortgage was, upon order of the court, dismissed on January 27, 1913. The following day, January 28, 1913, the bill of complaint in this suit was filed to foreclose the whole amount due under this mortgage. There is no question raised as to the regularity of the foreclosure proceedings, nor as to the amount of the indebtedness due and owing the complainant on the mortgage.

The sole defense of the appealing defendant is that this court should decree a cancellation of the mortgage lien, because, first, she appeared at the time and place specified in the note and mortgage for their payment with money to pay the same, and with the intention of paying the note and mortgage, and was prevented from making such payment by the absence of complainant; second, because of an actual tender to the complainant, claimed to have been made at Berrien Springs on January 28, 1913, and to his attorney, at Chicago, a few days later. With reference to these claims, Mrs. Berkey testified that on January 26, 1913, which fell on a Sunday, she went to 5009 Champlain avenue, Chicago, Ill., the place specified in the note and mortgage for payment, with $3,625 to pay the note and mortgage; that she found no one at this address except the janitor, who informed her that the complainant had not been there that month; that thereupon she asked the janitor if there was any one there to receive the money due on the mortgage, which fell due that day, and the janitor replied that he had heard nothing regarding it, and, if she would return the following day, the complainant possibly would be there; that on the next day, January 27th, she went back with the money and was informed by the janitor that the complainant had not been there. She states that about noon of that day she left Chicago and went to Berrien Springs, and claimed that on the next day, January 28th, she saw the complainant and informed him that she was ready and willing “to discharge the mortgage,” but was referred by him to his attorney, Mr. Kolb, of Chicago; that she then returned to Chicago and called on Mr. Kolb, who, when she told him the purpose of her visit, “threw up his hands and said, T have got nothing to do with it whatever, nothing to do with it.’ ” The testimony with relation to her interviews with the complainant and Mr. Kolb are flatly contradicted by both complainant and Mr. Kolb. The testimony shows that, when-default was made in the payment of the interest, the complainant placed the note and mortgage in the hands of Mr. Kolb for attention, and that Mr. Kolb made every effort to collect the same, and that Mrs. Berkey made requests in writing for extension of time, and promised to pay but never did pay any of the principal or interest. The learned circuit judge, who saw and heard the witnesses, came to the conclusion that the defendant Mrs. Berkey was mistaken as to the occurrences at Berrien Springs and what occurred at the interview with Mr. Kolb in Chicago. A careful reading of the record is convincing that her testimony as to these occurrences is highly improbable. It does not seem reasonable that either the complainant or his attorney would have refused the money if a proper tender had been made, as it appears from the correspondence between Mr. Kolb and the defendant that he was eager to collect the money, and that she was unable to pay even the interest on the indebtedness. Her testimony as to what occurred on January 26th and 27th at 5009 Champlain avenue is uncontradicted. It seems somewhat strange, however, that she should go to Chicago to tender the money when she knew that there was a proceeding pending at the time to foreclose the mortgage, in which she had filed a petition to intervene.

It seems to be a well-established doctrine in this State that, even if a'proper tender is made, it will not discharge a mortgage lien, unless the tender is refused in bad faith. In Waldron v. Murphy, 40 Mich. 668, 671, it was said:

“It has been held in this State that a wilful and absolute refusal to accept a lawful tender discharges a lien. But there is no equity in attempting to avoid both lien and debt, and the security should not be discharged by any action in which the conduct of the creditor is not unjustifiable. If the refusal of a tender is not unreasonable or absolute, we do not think a mortgage is cut off by it. For the cases heretofore decided bearing on this question, see Caruthers v. Humphrey, 12 Mich. 270; Van Husan v. Kanouse, 13 Mich. 303; Eslow v. Mitchell, 26 Mich. 500; Potts v. Plaisted, 30 Mich. 149; Flanders v. Chamberlain, 24 Mich. 305; Cowles v. Marble, 37 Mich. 158; Collar v. Harrison, 28 Mich. 518; [Id.] 30 Mich. 66; Barnard v. Harrison, 30 Mich. 8; Seager v. Tupper, 35 Mich. 134; Fry v. Russell, 35 Mich. 229.”

See, also, Proctor v. Robinson, 35 Mich. 284; Canfield v. Conkling, 41 Mich. 371 (2 N. W. 191); Engle v. Hall, 45 Mich. 57, 58 (7 N. W. 239); Post v. Springsted, 49 Mich. 90 (13 N. W. 370); Renard v. Clink, 91 Mich. 1 (51 N. W. 692, 30 Am. St. Rep. 458); Bolton v. Jewett, 117 Mich. 105 (75 N. W. 293).

In Engle v. Hall, supra, Mr. Justice COOLEY, speaking for the court, said:

“When the discharge of a mortgage is demanded on the ground of a tender, the evidence in support of the tender ought to be very clear and satisfactory, and ought to place the defendant distinctly in the wrong.”

In this case we do not find the evidence in support of a tender satisfactory, nor do we find the complainant in the wrong. Complainant, at the time of the occurrences at 5009 Champlain avenue, had commenced a proceeding to foreclose his mortgage, in which proceeding' the defendant Mrs. Berkey had filed her petition to intervene. There is nothing in this record to warrant the conclusion that the complainant was not willing to' accept his money; in fact it is conclusive that he was anxious and made every reasonable effort to obtain it. Under the circumstances of this case, there would be no equity in discharging the lien, as it cannot be said that the complainant’s conduct was unjustifiable.

A part of the proofs in this case were introduced on September 16, 1913. At the close of these proofs, the case was apparently submitted without argument. Solicitors for complainant, who reside at Benton Harbor, gave notice on October 10, 1913, by mail, to the solicitor for defendant Nellie K. Berkey, who resides at Berrien Springs, that further testimony would be taken in the case at St. Joseph on October 14, 1913, at 7:30 o’clock at night. At the time appointed the testimony of Mr. Kolb was taken. The solicitor for defendant appeared but refused to-participate in the proceeding, and filed a written protest, and did not cross-examine the witness. It is urged that a motion to reopen the case should have been made and heard before further testimony and argument was allowed, and that the notice given did not give the solicitor a reasonable time in which to appear. When a case has been finally submitted, and further proof or argument is desired, it would seem to be the better practice to make a motion so to do and properly notice it for hearing, as was done in J. L. Hudson Co. v. Hat Co., 174 Mich. 109 (140 N. W. 507). The matter of taking proofs in a chancery case must, however, be left largely to the discretion of the chancellor, and in the instant case it appears that the notice given was ample, as the solicitor for the defendant did appear and was present during the taking of the testimony, although he refused to participate in the proceedings. Under these circumstances, we cannot say that the testimony of Mr. Kolb should not have been considered by the chancellor.

The decree is affirmed, with costs to the complainant.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    ROGERS v. EATON.
    1. Vendor and Purchaser — Titee—Contracts—Validity.
    In order to enter into a valid contract to sell land it is not essential to have the title; but the vendor must contract in good faith and have such an interest in the subject matter of the contract, or be so- situated with reference thereto, that he can convey a good title at the proper time.
    2. Same — Husband and Wife — Marbiaoe.
    A contract with a married woman for the purchase of land which she had agreed to buy before her marriage, later entering into a joint contract with her husband to carry out the purchase on installments, and thereafter arranging with all the parties in interest to buy in her own name, was valid and related to her separate estate.
    Error to Muskegon; Sullivan, J.
    Submitted June 16, 1914.
    (Docket No. 78.)
    Decided July 24, 1914.
    Assumpsit by Clinton Rogers and another against Martha Eaton for a sum due under a contract for the sale of land. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Philip W. Kniskern, for appellant.

      Elmer N. Peters, for appellees.
   Kuhn, J.

This suit was brought to recover interest due on a certain land contract, amounting to $312, and insurance paid on buildings on the property, amounting to $7.33. A verdict in favor of the plaintiffs for these amounts having been directed by the trial court and judgment having been had thereon, the defendant brings the case here by writ of error.

On December 2, 1911, the defendant entered into a contract with plaintiffs for the purchase of certain lands located in the county of Eaton for $7,200, of which sum $100 was to be paid on the delivery of the contract and $1,900 on or before March 1, 1912. Following the making of this contract, the defendant married Henry Wortelboer, and on the 16th day of March, 1912, the defendant, under the name of Martha E. Wortelboer, with her husband, entered into a contract with the plaintiffs for the purchase of the same parcel of land described in the contract of December 2, 1911. At this time, the remaining $1,900 of the $2,000 that was to be paid down on delivery of possession was paid and the defendant and her husband were put in possession. Domestic difficulties arose which resulted in a divorce suit. On the 7th day of January, 1913, defendant, with her attorney, went to Charlotte and informed the plaintiff Clinton Rogers that her husband, Henry Wortelboer, had no interest in the place, as she and her husband were in divorce proceedings, and requested plaintiffs to enter into a new contract for the sale to her of the same property described in .the contracts of December 2, 1911, and March 16, 1912. A new contract was entered into, which states that it is made to correct the agreement of December 2, 1911, and recites that $2,000 had previously been paid on a contract between the parties, and bound the defendant to pay interest on $5,200, the balance of the purchase price after deducting the $2,000 already paid, from March 16, 1912, at 6 per cent. The defendant at this time also arranged with a real estate broker to sell the farm, claiming that she was solely interested in it. The agent, acting solely for her, brought about a sale of the property to C. I. Foringer, and on January 81, 1913, the day before the contract was executed, the defendant made a contract with her husband, by the terms of which he agreed to sign off all his claimed interest in the farm, and also released his interest in certain personal property. Plaintiifs, at defendant’s request, joined her in making a contract with Foringer. The interest which the defendant agreed to pay under her contract of January 7, 1913, did not fall due until March 16, 1913, and amounted to $312. This defendant refused to pay, and this litigation resulted. It is the claim of the defendant that the contract sued upon was null and void at its inception; that there was no consideration for the same; and that the promise of the plaintiifs was not in their power to perform.

The rule in this country seems well established that it is not necessary to have perfect title to land in order to contract to sell it. 39 Cyc. p. 1410; Hanson v. Fox, 155 Cal. 106 (99 Pac. 489, 20 L. R. A. [N. S.] 338, and note, 132 Am. St. Rep. 72). It is thus stated by this court in Silfver v. Daenzer, 167 Mich. 362, 369 (133 N. W. 16).

“It was not necessary that defendant should have had a perfect title at the time of making the contract. It is sufficient ‘that the contract is made by the vendor in good faith, and that he has such an interest in the subject-matter of the contract, or is so situated with reference thereto, that he can convey a good title at the proper.time.’ 29 Am. & Eng. Enc. Law (2d Ed.), p. 608; Dresel v. Jordan, 104 Mass. 407.”

There can be no question of the good faith of the plaintiffs. The defendant solicited the contract and represénted that her husband no longer had any interest in the land. Indeed, she. made a settlement with him, and he, in fact, did release his interest. Plaintiffs were thus placed in such a position that they could carry out the contract according to its terms. When she requested plaintiffs to convey to Foringer instead of herself, she waived the conveyance to herself and accepted in lieu thereof the Foringer contract.

This action is brought against the defendant to recover upon her sole contract. It was clearly a contract relating to her separate property and was such a contract as would bind her under the law of this State. Mosher v. Kittle, 101 Mich. 345, and note (59 N. W. 497); Feather v. Feather’s Estate, 116 Mich. 384 (74 N. W. 524); Hamilton v. Parent, 152 Mich. 587 (116 N. W. 367).

The judgment is affirmed.

McAlvay, C. J., and Stone, Ostrander, Birp, Moore, and Steere, JJ., concurred. Brooke, J., did not sit.


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    MORRISON v. QUEEN CITY ELECTRIC LIGHT & POWER CO.
    Injunction — Estoppel—Waters and Watercourses — Dams.
    An injunction to restrain defendant power corporation from overflowing the lands of defendant, who had made no complaint against the erection of the proposed dam, merely claiming greater damages than defendant was willing to offer, and who furnished material for the construction of the dam, was properly refused by the court of first instance, on the ground that the proprietor of the land was estopped by his conduct from objecting to the use of the dam, and would be entitled to damages only.
    Appeal irom Grand Traverse; Mayne, J.
    Submitted June 2, 1914.
    (Docket No. 1.)
    Decided July 24, 1914.
    Bill by Harvey Morrison against the Queen City Electric Light & Power Company for an injunction. From a decree for defendant, complainant appeals. Affirmed.

      John W. Patchin, Parm C. Gilbert, and H. C. Davis, for complainant.

      Covell & Cross, W. P. Crotser, and Kleinhans & Knappen, for defendant.
   Kuhn, J.

The bill of complaint in this cause was filed to restrain the defendant corporation from overflowing certain lands owned by the complainant and located upon the Boardman river near Traverse City, Mich. These lands, it is alleged, were overflowed by reason of the wrongful and unlawful construction of a dam upon said river by the defendant corporation, and consist of about 7% acres, formerly owned by Charles T. Cedersten and sold by him out of the, northwest corner of 40 acres to James M. Crandall. Cedersten still owns the land to the east and south of the land in question. Crandall sold the property in 1909 to Sprague Pratt, who, on October 10, 1910, sold it to the complainant. After Crandall' purchased the land he improved it for the purpose of carrying on milling operations, and at the time of the deeding of the property to Pratt there were located on the premises two dwelling houses and barn, a wood shed, an inclosed sawmill and a shingle mill, likewise inclosed. The deed of the land from Cedersten to Crandall was subject to certain water privileges granted by Cedersten in 1902 to Ralph Case, Joseph O. Crotser, and Lorraine K. Gibbs, which consisted of the right of certain water flowage and power and to hold back water and the natural flow of the same for a certain distance, specified in the deed as 40 rods, above a highway bridge which crosses the stream at the premises. This, distance was measured and marked, while Crandall was in possession, by the placing of permanent monuments. These water rights were conveyed by Case and those interested with him to the defendant, the Queen City Electric Light & Power Company, in April, 1907. In the summer and fall of 1908 the defendant started the construction of a dam, and it was concluded that, in order to make it a profitable venture, it would be necessary to construct it with a 22-foot head. It was discovered, however, that if a dam with a 22-foot head were built it would be necessary to obtain flowage rights additional to those already possessed, and the matter of obtaining these rights was left to Mr. Crotser, who obtained such additional rights from certain of the riparian owners, and also attempted to obtain them from Mr. Crandall, who at that time was the owner of the property in question. Mr. Crotser testified as to his negotiations with Crandall, and stated that at the time he had negotiations with Cedersten before building the dam he talked with Crandall and told him that the company was going to build a dam with a 22-foot head, which in all probability would cause certain flowage across his property; that they wished everybody to be satisfied, and requested him to fix a price for such rights; that Crandall made no objection to the building of the dam, but would not estimate his damages until the water was raised, and, relying upon this assurance, the company went on with the building of the dam; that he again talked with him in the spring of 1908, and again in the summer of 1908, about constructing the dam, and during the latter conversation said, “Jim, have you made up your mind yet how much you are going to charge us for the damage of flowage?” and Crandall said, “No.” Again, in May, 1909, he met Crandall and asked him what he was going to charge for the additional flow-age, and he replied: “A damned sight more than you paid for the first.” He again talked with him in the fall of 1910, but • at no time did Crandall protest against the construction of the dam.

Crandall admitted having had a conversation with Crotser and said:

“Joe Crotser asked me what I would take for any little additional damage they were doing to me — that was when he was negotiating with Mr. Cedersten about his property — and I told him I did not know anything about what the damage would be. I did not say until the dam was in. I said it would be a damned sight more than what he had paid; that is the very words I used, what he paid for the first damage. He wanted to raise it 3 feet. He said nothing about the additional damage. He said he wanted to raise it 3 feet more. He wanted 3 feet more of the head than the original right he had purchased. * * * I cannot tell at all what the time was. It was before the dam was built. I think it was.

“Q. He said that he was going to raise the water 3 feet higher than the 40-rod point from the bridge, and that he wanted to settle with you for the right to do that?

“A. He told me he was going to raise it. .He said that they wanted that right. * * *

“Q. You expected, Mr. Crandall, that they would pay you absolutely in full for whatever damage they did you by raising that water that extra 3 feet you spoke of, didn’t you?

“A. I did not know what to expect when they didn’t do it. I do not know whether I calculated to make them do it or not. Mr. Crotser did not offer to do it when he talked with me. He asked me what the damage would be, and I told him I did not know. ❖ * ❖

“Q. But before you said in answer to that, didn’t you, that they would pay you a damned sight more than they had in the first instance?

“A. That is what I said. Yes; for the first 40 rods. I told Joe that, and that night he told me that they wanted to raise that dam 3 feet higher than the original understanding, and that they got the right of way to the 40-rod point.

“Q. And you knew then that they contemplated building it 3 feet higher?

“A. How did I know what they were going to build? He said he wanted that right.”

So much of the testimony' has been set forth to show that Crandall understood that the defendant was going to raise the dam, and that'he made no objection to its construction; the only question being the amount of damages which were to be awarded to him. Crandall was around the dam while it was being constructed nearly every day, and talked with the men engaged in the construction, and told the witness Matthews that he thought the 22-foot head would cause the flooding of his yard. He sold to the defendant eight or nine loads of lumber which went into the construction work, and took away pine butts, given to him by the company, which were removed in excavating for the dam. Complainant acquired the premises with full knowledge of these conditions. After hearing the testimony, the chancellor denied injunctive relief, but further provided in the decree as follows:

“It is further ordered, adjudged and decreed that the complainant be given 30 days from the date of filing this decree within which to submit further proofs of the damages sustained by the complainant by reason of the construction and maintenance of defendant’s dam, and the flooding of complainant’s premises, as alleged in said bill of complaint, and that, upon application of either of the parties to said suit, a jury be impaneled and sworn to hear the proofs and to assess said damages.”

This record is convincing that injunctive relief should not be given to the complainant. Relying upon Crandall’s attitude during the construction of the dam, which justified the conclusion by the defendant that all he desired was adequate compensation for whatever damages the construction would cause him, the defendant made a large investment of money. The record demonstrates that the defendant was at all times willing to pay whatever Crandall’s damages amounted to. Because he did not know the extent of his damages, Crandall insisted upon waiting to see what they would be before agreeing upon compensation. He stood by and saw valuable improvements made, and neither he nor his grantees can now obtain relief in equity to aid in their destruction. A general rule is laid down in 11 Am. & Eng. Enc. Law (2d Ed.), p. 428, and quoted in the opinion of this court in Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423, 450 (137 N. W. 305), where Mr. Justice Stone has reviewed some of the Michigan cases on the subject of estoppel:

“It may be stated as a general rule that if a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act. This, it has been said, is the proper' sense of the term 'acquiescence,’ which, in that sense, may be defined as acquiescence under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct.”

This rule finds support in the decisions of this court. See Jacox v. Clark, Walk. Ch. (Mich.) 249; Payne v. Paddock, Walk. Ch. (Mich.) 487; Truesdail v. Ward, 24 Mich. 117; Blake v. Cornwell, 65 Mich. 467 (32 N. W. 803); McKee v. City of Grand Rapids, 137 Mich. 200 (100 N. W. 580); Stock v. City of Hillsdale, 155 Mich. 375 (119 N. W. 435).

The decree will be affirmed, with costs to the defendant, but without prejudice to complainant to elect within 30 days, if he so desires, to resort to the court of law rather than to have a jury determine the question of damages in this cause.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


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    HUMISTON, KEELING & CO. v. YORE.
    1. Equity — Jurisdiction — Fraudulent Conveyances — Sales — Bulk Sales Act.
    A bill in equity may be maintained to reach the assets of a debtor that have been transferred or sold in violation of the statute governing sales of merchandise in bulk. Act No. 223, Pub. Acts 1905 (2 How. Stat. [2d Ed.] §2612 ét seq.).

    2. Same — Laches—Limitations—Delay—Estoppel.
    Mere lapse of time will not defeat such a suit unless the defendants have been prejudiced by the delay.
    3. Same — Definitions.
    Laches involves negligence or omission to assert a right, which, considering the lapse of time, in connection with other facts and circumstances prejudicial to the interests of the adverse party, make it inequitable to recognize such right.
    Appeal from Berrien; Perkins, J., presiding.
    Submitted June 5, 1914.
    (Docket No. 27.)
    Decided July 24, 1914.
    Bill by Humiston, Keeling & Company against Catherine Yore, George C. Bridgman and others to enforce the provisions of the “Sales in Bulk Law.” From a decree for defendants, complainant appeals.
    Reversed.

      Stratton & Evans, for complainant.

      G. M. Valentine for defendant Bridgman.

      Gore & Harvey, for defendant Yofe.

      As to the remedy of creditors where sale is made in violation, of bulk sales law, see note in 39 L. R. A. (N. S.) 374.

   Kuhn, J.

The facts set forth in the bill of complaint in substance are as follows: The complainant, a wholesale druggist, between June 30 and December 16, 1906, sold goods to the defendant John A. Inman, who was a retail druggist in Benton Harbor, amounting in value to $390.04, which have never been paid for. On or about December 17, 1906, Inman sold his entire stock of goods and fixtures, of the actual value of $3,000, to the defendant Catherine Yore for the sum of $300, and she agreed that she would assume and agree to pay Inman’s debts in connection with the store, which she was informed amounted to $800 or more. Immediately after this sale Inman left for parts unknown, leaving no property in the county or State, and, although the complainant, through its agents, made a diligent search for him during the month of January, 1907, and tried to locate him, he has not been seen nor heard of. On December 23, 1906, Mrs. Yore sold the stock of goods and fixtures to the defendant George C. Bridgman, who gave her indemnity against any indebtedness of Inman which she might be compelled to pay on account of her purchase of the stock and fixtures. It is alleged that Mrs. Yore claimed that in the purchase of the stock she was acting only as agent for defendant Bridgman. Neither in the sale from Inman to Mrs. Yore nor in the sale from Mrs. Yore to Bridgman were the provisions of the bulk sales law (Act No. 233, Pub. Acts 1905, 2 How. Stat. [2d Ed.] § 2612 et seq.), observed or followed. The material relief prayed for was:

That other creditors be permitted to intervene; that defendant Yore be decreed to hold in trust, for com'’ plainant and other creditors, the entire value and proceeds of the stock and fixtures received from Inman and sold to Bridgman; that she be decreed to pay the indebtedness of Inman to complainant, with interest; that, if defendant Yore was agent of defendant Bridgman, then that like decree be made against him; that the court determine the extent and amount of indebtedness of Inman to complainant and the value of; the stock and fixtures sold.

Then follows a prayer for general relief. Separate demurrers were filed by the defendants, and complainant appeals from an order sustaining them. The questions which are now presented are stated in the brief for defendant Catherine Yore, as follows:

(1) The promises of defendant Yore to pay In-man’s debts were not an agreement upon which complainant can maintain a suit, either at law or in equity.

(2) Disregard of the bulk sales law does not confer jurisdiction upon a court of equity.

(3) Complainant’s bill in chancery will not lie before judgment has been obtained against defendant Inman.

(4) Paragraph 24 of the bill of complaint does not make the case one for a court of equity.

(5) Defendants Yore and Bridgman are not trustees as contended in brief for complainant.

(6) Complainant wás guilty of such laches as should preclude it from maintaining the bill of complaint.

Does the admitted violation of the bulk sales act give the equity court jurisdiction under the circumstances of this case? This question, which has been somewhat perplexing to the profession, is passed on in the case of Coffey v. McGahey, ante, 225 (148 N. W. 356). It is held that equity has jurisdiction, and it is said:

“To deny jurisdiction to a court in equity would be contrary to a fair interpretation of this statute, which, by its title and the language used in it, indicates that it was enacted for the purpose of preventing frauds by debtors upon creditors, and made certain transfers ‘void as against the creditors of the seller,’ if the requirements of the act were ignored, and, further, made the purchaser in such cases a ‘receiver’ to be held accountable to the creditors of the seller upon application of any of such creditors.”

This bill is filed on behalf of the complainant' and all creditors of defendant Inman. As in the Coffey v. McGahey Case:

“The bill of complaint is not filed upon the theory of a judgment creditor’s bill, or a bill in aid of execution, but upon the theory that the statute made the transfer to defendant Baker absolutely void as to creditors; that creditors of McGahey are entitled to reach this property and apply it upon their claims; that for such purpose it is necessary to have a receiver, an injunction, and an accounting. It is contended by complainant that by reason of the circumstances of this case he has no adequate remedy at law.”

We are satisfied that the instant case comes within the ruling of that case, and that the court of equity has jurisdiction to grant relief to creditors.

The mere lapse of time in complainant’s filing this bill does not constitute laches. The status of neither of the defendants Mrs. Yore or Bridgman has changed, and the delay has not put them in a worse condition. No rights of third parties have intervened. As was said in Walker v. Schultz, 175 Mich. 280, 293 (141 N. W. 543):

“ ‘Laches,’ as interpreted by courts of equity, is not tested by mere delay for a certain period, as in case of the statute of limitations, but is such unreasonable neglect to assert and seek to enforce a right as will constitute in equity and good conscience a bar to recognition. If lapse of time without asserting their rights, standing alone, constituted laches in this case, it is by no means unilateral, and is imputable alike to both parties. But mere lapse of time does not necessarily constitute laches. As a rule it involves other considerations. It means that negligence or omission to assert a right which, considering the lapse of time in connection with other facts and circumstances prejudicial to the interests of the adverse party, render it unjust and inequitable to recognize such right when finally asserted. In this case the. condition of the title to the property was such that both parties had rights which they might have asserted, but failed to do so for a certain time. Where the situation of neither party has changed materially, and the delay of one has not put the other in a worse condition, the defense of laches cannot as a rule be recognized. Parker v. Hotel Co., 96 Tenn. 252 (34 S. W. 209, 31 L. R. A. 706).”

Being of the opinion that the bill makes a case for the appointment of a receiver, the order sustaining the demurrer is reversed, with costs of both courts, and the record will be remanded for further proceedings in accordance with the rules of the court.

McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.