text:
    TOWNSHIP OF STAMBAUGH v. IRON COUNTY TREASURER.
    1. Townships — Change op Boundaries — Uncollected Taxes— Distribution — Authority op Township Treasurer.
    By Acts Nos. 577, 578, and 667, Local Acts 1905, by which certain territory was detached from the township of Iron River, in Iron county, and attached to the township of Stambaugh, the township of Atkinson disorganized and its territory attached to the township of Iron River, and the territory detached from Iron River detached from the school district known as the “Public Schools of Iron River” and attached to the “Public Schools of Stambaugh,” the legislature intended to change the territorial boundaries of the townships of Iron River and Stambaugh and of the school districts in and coextensive with each, and to provide for the distribution of all uncollected taxes of all territory affected by the legislation; and the provisions in said Acts Nos. 577 and 578 empowering the treasurers of the townships of Iron River and Stambaugh to collect taxes due and unpaid, and to enforce the payment of delinquent taxes, and credit them to their respective townships, entitles said treasurers to receive from the county treasurer the delinquent taxes levied for township and school purposes upon property in said territory afterward collected by the auditor general and paid over to the county treasurer.
    2. Same — Power op Legislature.
    The legislature has authority to empower the township treasurer to receive all moneys belonging to the township treasury, and to take the necessary steps to obtain them.
    8. Statutes — Construction—Manifest Intent — Literal Sense.
    In the construction of a statute the manifest intent of the legislature must prevail over the literal sense of the terms used.
    4. Townships — Change op Boundaries — Uncollected Taxes — Vested Rights.
    A township does not acquire a vested right in delinquent taxes levied for township purposes in its territory and returned unpaid so that the legislature cannot, upon detaching a portion of its territory, transfer the right of collecting such taxes to the township to which the territory is transferred.

      5. Statutes — Subject and Title — Harmony.
    The title of Act No. 578, Local Acts 1905, providing for the detaching of certain territory from one township and attaching it .to another, disclosing that intention, is broad enough to include a provision for the distribution of uncollected taxes in the detached territory.
    Certiorari to Iron; Stone, J.
    Submitted May 12, 1908.
    (Calendar No. 22,780.)
    Decided May 26, 1908.
    Mandamus by the township of Stambaugh to compel the treasurer of Iron county to pay over certain taxes collected for township and school purposes. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      M. jET. Moriarty and Clarence D. Dwyer, for relator.

      Fred H. Abbott, for respondent.
    The legislature of 1905 passed Local Act No. 578, entitled :
    “ An act to detach certain territory from the township of Iron River, in the county of Iron, and attach the said territory to the township of Stambaugh, in said county.”
    The act consists of two sections, the first of which detaches townships 44 and 45 north, of range 37 west, from the township of Iron River, and attaches the same to the township of Stambaugh, in said county. The second section provides that the township treasurer is—
    “Empowered and authorized to collect all taxes that may be due and unpaid at or before the date of the taking effect hereof, upon any property detached from the township of Iron River and attached to the township of Stambaugh, as described in section one of this act. And to enforce the payment of delinquent and other taxes in the same manner as other delinquent taxes are collected in said township under the general laws. And to credit all moneys thus collected to the township of Stambaugh. ”
    At the same time the legislature passed Local Act No. 577, disorganizing and vacating the township of Atkinson in said county of Iron, and incorporating its territory with the adjoining township of Iron River. Section 4 of that act provides for the enforcement and payment of delinquent and other taxes and for crediting them, when collected, to the township of Iron River in language in substance the same as that in section 2 of Act No. 578. Those acts were ordered to take effect April 1, 1906, and were approved June 1, 1905.
    The same legislature shortly afterwards passed Local Act No. 667, detaching the territory mentioned in Act No. 578 from school district “ The Public Schools of Iron River,” and attaching the same to the district “The Public Schools of Stambaugh.” The body of the act contained the requisite provisions for carrying it into effect. This act was also ordered to take effect April 1, 1906.
    The respondent, the treasurer of Iron county, proceeded to collect the delinquent and other taxes, and, of the amount so collected, $5,761.49 were taxes for township and school purposes. The relator made a demand upon the respondent for these taxes. The demand was refused and the relator then filed its petition in the circuit court for the county of Iron, praying the writ of mandamus to compel the payment to it of the taxes thus collected. The court granted the writ, and the proceeding is before us for review under the writ of certiorari.
   Grant, C. J.

(after stating the facts). The territorial limits of the municipality known as the public schools of Iron River and the township of Iron River were identical. The same is true of the township and school district of Stambaugh. It was clearly the intent of the legislature by these three acts to change the territorial boundaries of the townships of Iron River and Stambaugh and of the school districts existing in each, to vacate the township of Atkinson and attach its territory to the township of Stambaugh, and to provide for the distribution of the uncollected taxes. By this act the territory of Atkinson became a part not only of the township of Iron River but of the school district of Iron River. The delinquent taxes which, at the time of these changes, had been returned by the township treasurer for nonpayment, were afterwards collected through the agencies of the State and county and were paid over to the respondent.

It is urged that the treasurer of Stambaugh could not collect and enforce the payment of these taxes, because his control over proceedings to collect and enforce had ended, that the enforcement and collection of them devolved exclusively on the county treasurer and auditor general, that his only further duty was to receive from the county treasurer at stated quarterly intervals the proceeds of school and township taxes which the county treasurer or the auditor general had collected, and that therefore there were no taxes to which the language of the act could be applied. The language of these acts will not bear this construction. When these delinquent moneys had been paid to the county treasurer, the township treasurers to whom they were payable certainly had the right to demand payment, and, upon refusal by the county treasurer, could take the necessary proceedings to enforce payment. The county treasurer and auditor general are mere conduits through whom delinquent taxes when paid are conveyed to the township treasurer.

The words used in the statute, “collect and enforce,” include the power to receive moneys from those authorized to pay them. The purpose and effect of both acts were to clothe the treasurer of each township with the power to receive all moneys belonging in the township treasury and to take the necessary steps to obtain them. The power to so provide is clearly vested in the legislature. Its manifest intent must prevail over the literal sense of terms. 1 Kent’s Commentaries, p. 462; Green v. Graves, 1 Doug. (Mich.) 851. The township of Iron River had not acquired vested rights in the delinquent taxes of this detached territory so that the legislature, in dividing the territory, could not transfer the right to uncollected taxes from one township to the other.

The other contentions in behalf of respondent are answered against him by Perrizo v. Kesler, 93 Mich. 280; People v. Worden Grocer Co., 118 Mich. 604; Attorney General, ex rel. Kies, v. Lowrey, 131 Mich. 639; Attorney General, ex rel. Battishill, v. Township Board of Springwells, 143 Mich. 523. All the provisions in the body of the act were germane to its title.

The judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, J. Q-rant, O. J.

license: Public Domain

text:
    WOODWORTH v. DETROIT UNITED RAILWAY.
    1. Railroads — Negligence—Defective Crossing — Evidence — Prior Accidents — Admissibility.
    In an action against a railroad company for a wrongful death resulting from deceased’s vehicle catching in a vacant space between the planking and defendant’s track at a crossing, evidence of prior accidents of a similar nature is admissible to show negligence on the part of defendant in maintaining its crossing in that manner. Gregory v. Detroit United Railway, 138 Mich. 368, overruled.
    2. Saving Questions for Review — Exceptions—Necessity.
    Whether the court erred in permitting a view, and in subsequently permitting plaintiff to prove alterations in the premises since the accident, will not be considered where no objection or exception was taken to the rulings.
    Error to Oakland; Law, J., presiding.
    Submitted January 21, 1908.
    (Docket No. 111.)
    Decided May 27, 1908.
    Case by Willis Woodworth, administrator of the estate of Rex Woodworth, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Dohany & Dohany, for appellee.
   Carpenter, J.

About three and one-half miles east of Farmington Junction defendant’s railway crosses the roadbed of Grand River road at an acute angle. This crossing is called the Volney Smith crossing. As Rex Woodworth, plaintiff’s intestate, attempted to drive over this crossing, the left front wheel of his wagon caught in a vacant space between the rail and the planking; his horse could not move it, and a car operated by defendant collided with his vehicle and killed him. This suit was brought to recover compensation. The issue was submitted to a jury who rendered a verdict in plaintiff’s favor. We are asked to reverse the judgment entered upon said verdict for several reasons.

Plaintiff was permitted to prove by one of defendant’s employes, a section man, that at least a dozen rigs had been stuck in this crossing in the same way as was that of plaintiff’s intestate; that the first of these occurrences happened about two years before; the others from time to time up to about a month before the disaster in suit, and on one of these occasions a wagon wheel was broken. This testimony was received notwithstanding the circumstance that counsel for defendant admitted in open court that “whatever the condition of that crossing at the time in question, defendant had full knowledge of it and had full knowledge of it at least six months prior thereto. We do not admit that it was defective.” Defendant relies upon the case of Gregory v. Railway, 138 Mich. 368. That case was very similar to this, and we there decided that testimony like that under consideration was inadmissible. We said:

“Evidence was received, under objections and exception, to show prior accidents of a similar character at this same place. Such testimony is only admissible to show notice and knowledge of the defects. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537; Corcoran v. City of Detroit, 95 Mich. 84; Alberts v. Village of Vernon, 96 Mich. 549.
“Defendant’s counsel upon the trial admitted that the condition of the rails and street at this point was the same as it had been from the 1st of December previous. The sole question, therefore, was the condition of the street, and whether its condition was negligence. Proof of prior accidents was immaterial, and would naturally tend to prejudice the defendant.”

I participated in that decision and approved the foregoing reasoning and am bound to admit that I am as responsible for it as if I had written it. I am compelled now to say that, in my judgment, the decision was erroneous, and I think we should take this, the first opportunity, of overruling it.

It is apparent from the above quotation that it was our opinion that testimony of prior accidents was admissible for the purpose of establishing defendant’s knowledge of the condition of the street, but not for the purpose of proving negligence. Here is where I think we erred. I think such testimony has a bearing upon the question of negligence. None of the authorities cited in the opinion in Gregory v. Railway., supra, touch this question. None of the authorities of other States which hold that testimony of prior accidents is not admissible have any bearing, for we hold it admissible, and with the .exception of Gregory v. Railway, there is nothing in our decisions which indicates that it is not admissible for all legitimate purposes. Such testimony has a legitimate bearing upon the issue of negligence. In this case the burden rested upon plaintiff to prove not only the existence of this space between the rail and the planking, but also to prove that it was negligent for the defendant to leave that space in that condition. In determining the question of negligence, it becomes important to inquire: Should defendant have anticipated that the wheels of wagons attempting to cross its railway would get caught in this space? Testimony that wagons had actually been so caught a dozen times in two years, especially if, as may be inferred, these occurrences were known to defendant, answers this question, or, at least, affords great aid in answering it.

In Hoyt v. Jeffers, 30 Mich. 181, this court said:

“With actual notice of the danger from this cause [the throwing of sparks from the chimney of a saw mill], the defendant might justly be held to a somewhat stricter measure of diligence, than if ignorant of it, and to some extent this might make that negligence which otherwise would not be so.”

In Smith v. Township of Sherwood, 62 Mich. 165, plaintiff brought suit to recover for damages resulting from his horse shying at a hole in a bridge. This court held that testimony proving that other horses had shied at this hole was properly admitted, saying:

“The evidence was therefore competent to show the existence of the defect for some time, and that it was calculated to frighten horses. It tended to show the dangerous character of the hole in the bridge, and, as more or less publicity would naturally be given to such occurrences, it also tended to show that knowledge of such dangerous character was brought to the attention of the township authorities.”

See, also, Lombar v. Village of East Tawas, 86 Mich. 14; Retan v. Railway Co., 94 Mich. 146; Darling v. Westmoreland, 52 N. H. 401; House v. Metcalf, 27 Conn. 631; District of Columbia v. Armes, 107 U. S. 519.

I conclude, therefore, that no error was committed in receiving the testimony under consideration.

Complaint is made because the trial judge permitted the jury to view the scene of the disaster; and

Because he subsequently permitted plaintiff to prove that a change had been made whereby the traveled portion of the road crossed said highway at a less acute angle than it did at the time plaintiff’s intestate was killed.

If there was no error in permitting the jury to view the scene, there was no error in the introduction of the testimony complained of; for it was necessary to introduce that testimony to prevent their getting an erroneous impression. We dispose of each of these complaints when we say that we cannot hold that the trial judge erred in permitting the jury to view the scene. No objection was made to his ordering that view, and no exception was taken. The question is not, therefore, before us.

No other question demands consideration.

The judgment is affirmed.

Blair, Montgomery, Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.

Q-rant, O. J.

(concurring ). I concede that there are cases where results are indicative of negligence, and are therefore admissible in evidence. If Gregory v. Railway, 138 Mich. 368, can be justly construed as stated in my Brother Carpenter’s opinion, and if the profession so understand it, it should be modified, or, if necessary, overruled. However, a careful reading of the opinion and of the record and briefs in that case will show that it does not hold that the evidence of accidents (without detailing them), or of the conditions which might result in accidents, is not competent. No such question was raised in that case before the trial court or in the briefs of counsel in this court. I have re-examined them. Upon the trial, after the concession made by the defendant that the crossing was in the same condition that it had been for a long time before the accident, counsel for plaintiff stated “that the evidence was offered for the purpose of showing that the rail at that place extended above the level of the street; also as constructive notice to the company, defendant.” Counsel for plaintiff, Gregory, stated their position in their brief as follows:

“ This testimony is admissible for the purpose of showing a continuation of the defect in question, from which continuation notice to the defendant may be inferred.”

Therefore the question now before us was not presented in that case. The authorities cited in that opinion (written by the writer of this) do, in my judgment, sustain the rule that, under the circumstances in the Gregory Case, and the contentions and concessions of counsel therein, evidence of prior accidents was immaterial. The question, however, in my judgment, is of no consequence in this case, since the trial judge, when his attention was called to the Gregory Case, emphatically instructed the jury to disregard the evidence complained of. I, therefore, concur in affirming the judgment.


author: Montgomery, J.

text:
    HYMAN v. KIRT.
    1. Bills and Notes — Action—Evidence—Forgery—Other Forgeries — Admissibility.
    In an action on a promissory note, the defendant having denied the execution of the note, testimony tending to show that plaintiff left for collection another note purporting to be signed by another party, and on being confronted with the supposed maker, made contradictory statements, from which the jury might infer that the note was a forgery, is admissible on the question of intent.
    3. Same — Result of Similar Action.
    Where the defendant has denied the execution of the note sued upon, inquiry into the result of an action by the same plaintiff upon, another note, in which the defense was that the note had been paid, raises a collateral issue which plaintiff cannot be expected to be prepared to meet, and is incompetent.
    3. Trial — Reception oe Evidence — Cure oe Error.
    An instruction in which the court states his recollection that certain incompetent testimony was not received, and that counsel was in error in referring to it, and that the jury will not take it into consideration, does not cure the error in receiving the testimony.
    4. Same — Argument of Counsel — Prejudicial Statements.
    Reference by counsel to a party in argument as a “Jew horse dealer ” is reprehensible, and in a proper case may cause re. versal.
    Error to Leelanau; Mayne, J.
    Submitted April 17, 1908.
    (Docket No. 113.)
    Decided May 27, 1908.
    Assumpsit by Herman Hyman against Joseph Kirt on a promissory note. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Pratt & Davis, for appellant.

      John W. Patchin and C. L. Dayton, for appellee.
   Montgomery, J.

The plaintiff brought an action to recover on a promissory note of $2,140. The defendant, on oath, denied the execution of the note, and this presented the issue which was tried before the jury. It was conceded by the plaintiff that. the note included a considerable sum of usury. It was claimed that the amount of money actually advanced to the defendant was $1,850, and for this sum the plaintiff claimed judgment. Plaintiff’s testimony tended to show the execution of the note by the defendant as a culmination of dealings extending over a considerable period. The defendant, on the other hand, denied that he had ever signed the note in question knowingly, although admitting that the signature looked like his, his theory being that he had been asked by plaintiff to witness a chattel mortgage, and that the note had been substituted in place where his signature was to appear upon the mortgage and the signature to the note thus obtained.

The errors assigned relate to the admission of testimony and to the remarks of counsel in the argument to the jury.

On the trial, the defendant sought to show that a like claim on a note had been made by plaintiff during the time the present note was extant against one John Gilness, and that plaintiff had deposited a note of that description with the bank at Traverse City, who had in turn notified one Jonas Gilness, who was the only person of that name residing in the neighborhood where the note purported to have been made, and who was often called John Gilness, and that upon Jonas Gilness confronting the plaintiff, he made contradictory statements, from which the jury might have inferred that the note was a forgery. We think testimony of this character was admissible as bearing upon the question of intent. Beebe v. Knapp, 28 Mich. 53; French v. Ryan, 104 Mich. 625; Cook v. Perry, 43 Mich. 623; Beard v. Hill, 131 Mich. 246, which is a case very similar in its facts.

On the cross-examination of plaintiff, he was asked if he had had trouble of this same nature before in court. This was admitted, subject to objection and exception, and the plaintiff thereupon testified that he had a suit on a note but not a suit where the people had denied the execution of the papers, but one in which the defendants had claimed that the note had been paid, and defendant’s counsel showed in this suit that the jury found that the notes had in fact been paid, and plaintiff had been defeated on that ground. In the argument to the jury this testimony was referred to, and it was stated that plaintiff “admits that he sued an old man and his wife on notes for $2,500, notes that the jury found in that very case had been paid.” It will be noted that this testimony had no bearing on the question of the guilty knowledge of the plaintiff or of the intent in securing the signature, its only bearing being that it might tend to show, if the record of that case was competent testimony to show it, that the plaintiff had been discredited by a jury on another trial. This was not competent testimony. It introduced a collateral issue which the plaintiff could not have been expected to be prepared to meet. Before the jury could properly determine that the result in that case should weigh against the credibility of the plaintiff, it would have been necessary to try out the issue presented before the jury in that case. See Brennan v. Busch, 67 Mich. 670.

The circuit judge in his cnarge used the following language:

‘ ‘ Reference was also made to a former suit in which it is alleged the plaintiff lost because the other parties came in and testified that payment of the note was made. My recollection of that matter is that I sustained the objection made by the plaintiff to the testimony and it was not admitted. But counsel, in the heat of the argument, probably forgot the ruling of the court in that matter when they referred to the same in the argument. So, gentlemen, you will not take that into consideration at all.”

It is evident that he was mistaken as to the fact of the testimony having been admitted, and the question remains as to whether this language of the court cured the error in receiving the testimony. We are not able to say that it would have this effect. The testimony had been received, it had been dwelt upon by counsel in his argument to the jury, and we cannot feel assured that it had not had its effect. See Maxted v. Fowler, 94 Mich. 112.

The reference by counsel to plaintiff as a Jew horse dealer was, to say the least, most unfortunate, and it is difficult to conceive how counsel should be betrayed by his zeal into using such language, in view of the decision in this court in Cluett v. Rosenthal, 100 Mich. 193. We need not determine whether the withdrawal of this expression and the instruction of the court cured the error, as, for the error in admission of testimony relating to the other litigation, the case must be reversed and a new trial ordered.

Grant, C. J., and Blair, Carpenter, and McAl-VAY, JJ., concurred.


author: Carpenter, J.

text:
    PEOPLE v. KEMMIS.
    1. Saving Questions for Review — Objection Below — Competency of Witness.
    Whether it was error, under section 10215, 3 Comp. Laws, to receive the testimony of a boy over 10 years of age, without his being sworn, will not be decided, where the objection was not made in the trial court.
    2. Same — Order of Proof.
    Error in admitting on rebuttal evidence that would have been competent in chief cannot be availed of where not objected to below.
    3. Criminal Law — Instructions—Character of Respondent.
    The defendant in a criminal case is not entitled to an instruction, there being no testimony upon the subject, that he is presumed to be a man of good character.
    4. Intoxicating Liquors — Statutes—Constitutionality.
    The law regulating the sale of intoxicating liquors in this State is constitutional.
    Exceptions before judgment from St. Clair; Law, J.
    Submitted May 7, 1908.
    (Docket No. 125.)
    Decided May 27, 1908.
    Walter Kemmis was convicted of violating the liquor law.
    Affirmed.

      Cady & Crandall and David Fitzgibbon, for appellant.

      Alex. Moore, Prosecuting Attorney, for tne people.
   Carpenter, J.

Respondent was convicted of the offense of selling intoxicating liquor without first having paid the annual tax required by section 5385, 2 Comp. Laws. He asks us to set aside his conviction for several reasons.

George Mitchell, a boy between 10 and 11 years of age, was called as a witness by the people. It appeared from the preliminary examination undertaken by the court that he did not understand the nature of an oath. He was permitted to give his testimony without being sworn. No exception was taken. But at the conclusion of the case, respondent’s counsel asked the court to strike out the testimony “for the reason that the preliminary examination given to him by the court does not show that he was aware of the nature of an oath.” This motion was overruled and thereupon the further motion was made “to strike out his testimony for the reason that the witness was not sworn.” It is now insisted that the testimony was improperly received because, as the witness was oyer 10 years of age, his unsworn testimony should not have been received. Section 10215, 3 Comp. Laws. We dispose of this contention by saying that it was not made in the trial court and cannot be made for the first time in this court.

Upon rebuttal the people were permitted to prove the condition of defendant’s premises subsequent to the date of the alleged commission of the offense. The argument of respondent’s counsel assumes that it would have been competent to introduce this testimony before the people had rested their case. See People v. Hicks, 79 Mich. 457. But it is argued that it was an abuse of discretion for the trial court to permit it to be introduced in rebuttal. Assuming, as we must, that the testimony was admissible, we cannot say that there was any error in admitting it on rebuttal, for the objection to its being so admitted was not raised on the trial by respondent’s counsel.

It is contended that the court erred in refusing to charge the jury, as requested, that defendant was presumed to be a man of good character. There was no testimony upon this subject. Under such circumstances there was, of course, no presumption that defendant was a man of bad character. Is there a presumption that defendant was a man of good character? There is high authority for saying that there is. See Mullen v. U. S., 46 C. C. A. 22. Of this decision Mr. Wigmore in his work on Evidence, § 290, note 2, says:

“ This inconsistently gives him the untrammelled benefit of evidence which if he had introduced might have been disputed. What really happens, or ought to, is that the defendant’s character is simply a non-existent quantity in the evidence. This distinction has sometimes been expressly pointed out; Addison v. People, 193 Ill. 405; Knight v. State, 70 Ind. 380.”

We approve and adopt the rule stated by Mr. Wigmore, and therefore overrule the objection under consideration.

It is contended that the law regulating the sale of intoxicating liquors in this State is unconstitutional. The questions raised by this argument are not open ones in this State. See Robison v. Miner, 68 Mich. 549; People v. Luby, 99 Mich. 89.

The conviction is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    DRAPER v. BROWN.
    1. Evidence — Admissions — Letters — Competency — Recollection oe Witness.
    Where a letter previously written by a witness is offered in evidence as containing a statement by defendant upon which complainant relies as an admission, its competency depends primarily upon the ability of the writer to guarantee that it accurately represents his knowledge and recollection at the time; and where the writer has no independent recollection of the matter, and the letter does not aid or refresh his recollection, it is not competent.
    2. Same — Effect.
    A letter written by an agent to his principal, regarding a loan applied for by defendant, wherein it is stated “He [defendant] offers his wife’s mortgage on the house and lot he occupies,” is not admissible as an admission by defendant that the title to the property was in his wife, the issue being whether a deed, admitted to have been executed in her favor, was ever delivered.
    3. Deeds — Delivery—Evidence—Acts of Grantor — Effect.
    On a bill to re-establish a deed, admitted to have been executed by defendant to his wife, since deceased, as grantee, but claimed to have never been delivered, the fact that defendant, after her death, obtained from complainant, her sole heir and legatee, a quitclaim deed “for the purpose of perfecting the title” on account of the “unrecorded” deed, is not conclusive of the fact of delivery of the original deed, but is, at most, a circumstance to be considered in determining whether there was a delivery.
    4 Witnesses — Competency—Transactions with Persons Since Deceased.
    On a bill by the sole heir and legatee of a testatrix against her surviving husband to restore a deed, admitted by him to have been executed in her favor, but never delivered, he is not prohibited by the statute from testifying that after executing the deed he kept it in his safe at his place of business, and that his wife never saw it unless at the time of its destruction, although she was told by him that the deed was in existence and where to find it.
    5. Deeds — Delivery—Evidence—Supeioienoy.
    On a bill by the sole heir and legatee of a testatrix against her surviving husband to restore a deed, admitted by him to have been executed in her favor, but never delivered, evidence examined, and held, that complainant has not, by a preponderance of the evidence, aided by the presumptions the court is bound to indulge, established the fact that testatrix died seised of the property in question.
    6. Executors and Administrators — Claims — Allowance — Courts — Equity—Jurisdiction.
    It is not the province of a court of equity to allow or disallow claims against the estates of deceased persons, or to administer estates; especially after the subject has been entered upon in the probate court.
    7. Wills — Construction — Bill to Obtain — Jurisdiction — Chancery Court.
    The superior court of Grand Rapids, in chancery, has jurisdiction to determine the ownership of a homestead, the issue being whether an unrecorded deed to decedent from her husband was ever delivered, to construe her will, and to instruct and direct the trustee thereunder with respect to the trust estate.
    8. Executors and Administrators — Management op Estate-Mortgages — Payment—Duty of Executor.
    A will by which testator devised certain mortgaged land to her executor in trust, income payable to her daughter for life, remainder to certain other persons, and the residue of her estate to her executor in trust, income payable to her daughter for life, remainder to persons other than the remainder-men in the preceding paragraph, considered, together with the surrounding circumstances, among them being the fact that the estate, aside from the mortgaged property, was insufficient to pay the mortgages, and held, that testatrix did not, by a general direction to pay her debts, direct her executor to pay the mortgages, and that no duty devolved upon him so to do.
    9. Same.
    Where a will does not devolve upon the executor the duty of paying mortgages upon real estate, but shows a contrary intention, and the mortgage debts are not provable, or not proved, against the estate, the executor cannot pay them.
    10. Estoppel — Equitable Estoppel — Cestui Que Trust.
    Where an executor and trustee under a will had no right to use the income from one trust fund to preserve another, but the beneficiary for life of both funds knew of his doing so and made no objection, she is estopped to thereafter complain of his action in so doing.
    11. Trusts — Management by Trustee — Separate Funds — Use of One for Benefit of Other.
    Where an executor and trustee under a will without right used the principal of one trust fund to preserve real estate constituting another trust fund, by paying the interest on mortgages thereon, he will, for the purpose of an accounting, be charged with such principal; but he will have a lien upon the other fund for reimbursement out of any surplus which may remain after payment of the mortgages thereon.
    13. Executors and Administrators — Claims Against Estate — Limitations — Payment by Executor — Effect.
    The policy of our law, as declared in the statutes (sections 9375, 9380, 3 Comp. Laws) and by the court, is to commit allowance of claims against estates to a commission, to refuse allowance of demands barred by the statutes, and to confine the administrator to the payment of claims duly allowed; whence payments by an executor of interest upon mortgages upon real estate belonging to his testatrix, whatever effect they may have to preserve the lien of the mortgages, do not operate to suspend limitations as to the mortgage debt, and the executor or administrator may not by such payments either revive a demand barred by the statute at the decease of the debtor, or admit the liability of the estate upon one otherwise barred.
    13. Costs — On Appeal — Modification.
    The modification of a decree on appeal being substantial, the appellant was awarded costs of the appeal.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted November 22, 1907.
    (Docket No. 32.)
    Decided June 27, 1908.
    Bill by Mabel B. Draper against Henry D. Brown, individually, and as executor of the last will and testament of Cordelia Brown, deceased, Mary Brown, the People’s Savings Bank, and others, to re-establish a deed, to set aside a deed obtained by fraud, to set aside a mortgage, to construe a will and compel the execution of the trusts created thereby, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Modified.

      Crane & Norris (William Aldrich Tateum, of counsel), for complainant.

      Wesley W. Hyde and Howard A. Thornton, for defendant Henry D. Brown.

      Gleason & Tee, for defendant Mary Brown.

      John Carveth (Butterfield & Keeney, of counsel), for defendant People’s Savings Bank.
   Ostrander, J.

The complainant, who was born October 31, 1870, is the only child of Henry D. and Cordelia Brown, nee Rogers, who were married June 20,1854, and who lived and cohabited together as husband and wife until the death of Cordelia, September 7, 1891. Complainant in October, 1892, married Morris B. Draper, and of the four children born to them, three, Helen Louise, Jerome Chester, and Morris B., who are made defendants and who appear by their guardian ad litem, are living. Henry D. Brown, who is now upwards of 79 years of age, was again married January 24, 1893, to Mary E. Combs, with whom he is still living. Cordelia (Rogers) Brown died testate. Her will was executed August 6, 1891. It was admitted to probate October 19, 1891. Henry D. Brown, who was named therein as sole executor, qualified as such November 7, 1891, and has since, with an exception to be noted, had the care and management of the estate. By the terms of the will, the executor is directed to pay all lawful debts existing against the testatrix at the time of her death,and the expenses of settling the estate. After giving to her husband and daughter all silverware, household goods, wares, fixtures and furniture, and all pictures and paintings, and to her daughter all her personal wardrobe, wearing apparel and jewelry, to her physician all notes she held against him and the sum of $200 in money, which provisions are found in the first four paragraphs of the will, the fifth and sixth clauses read as follows:

“Fifth. The real estate I own, situate in the city of Grand Rapids, Michigan, at the northeast corner of Fountain and Bostwick streets, in said city, and particularly described in my deed thereof from Charlotte Pressburg and husband, dated April 30, 1885, and recorded in the register’s office of Kent county, Michigan, November 25, 1885, in liber 170 of deeds, at page 170, I give,devise and bequeath to my said husband, Henry D. Brown, in trust nevertheless to and for the following purposes: To keep the same rented and from the income thereof keep the buildings thereon at all times properly insured, to pay all necessary taxes and repairs, and any other expenses that may be incurred in the care and management of the said property, and then to pay what then remains of such income to my said daughter, Mabel H. Brown, for and during the period of her natural life, the said net income thereof to be so paid her annually, and upon her death I give, devise and bequeath the said real estate and property to the child or children of my said daughter, if any such child survive her, and if she die without child her surviving, then the said property shall pass to the children of my sister, Helena M. Post, of Rochester, N. Y., and to the children of my sister-in-law Sophia Bryant, of Olivet, Michigan, the same to be divided between the said children, share and share alike, and in case of the death of any such children, leaving him or her surviving lawful issue, then such issue shall take the share that the deceased parent if living would have taken. By the child or children of my said daughter, Mabel H. Brown, I mean the issue of her body, or any child she may lawfully adopt so as to become her heir. If at any time in the judgment of my said trustee it may be wise and for the best interests of my said daughter to sell said real estate and convert the same into interest-bearing securities, then I authorize such sale to be made, provided my said daughter thereto consent, and direct that the net avails of such property be then invested in interest-bearing securities, the net income thereof to be paid to my said daughter during her life and then at her death what remains shall pass in the same manner and to the same persons who would have taken it had it remained real estate as provided hereinbefore in this clause of my will.
“Sixth. All the rest, residue and remainder of the estate I may own or in any way be entitled to at my decease, both personal and real, after satisfying the provisions of the foregoing clauses of this my will, I give, devise and bequeath to my said husband, Henry D. Brown, in trust, for the following purposes: I direct my said trustee to sell and convey the real estate at such time as in his judgment it may be wise and convert the same, together with the personal estate, from time to time, as he may be able, into interest-bearing securities, and to pay from the income thereof all taxes upon said trust estate and all expense incurred in the care and management thereof, and then pay the balance of said income each year to my said daughter, Mabel H. Brown, until the death of my said husband, should my said daughter survive him, and then upon the death of my said husband I give the entire of said trust estate then remaining to my said daughter, Mabel H. Brown, and her heirs forever, and in case my said husband shall survive my said daughter, then upon the death of my said daughter, what then remains of said trust estate shall pass to the legal heirs of my said daughter, except in case my said daughter shall have made a will which shall after her death be admitted to probate, in which she shall have devised or bequeathed the said trust estate, then in that case the said estate, on the death of my said daughter, shall pass to the legatees in her said will named in such manner as she shall have designated therein.”

The time limited for the presentation of claims was June 11, 1892. One claim only was presented, the claimant being Clark H. Gleason, who drew the will. The amount of his claim was $15, and this was allowed. An order was duly entered closing the estate against claims. September 8, 1893, Henry D. Brown, as executor, filed his first account, and thereafter successive accounts were filed October 16, 1894; October 1, 1895; October 2, 1896; November 19, 1897; December 2, 1899; December 30, 1904. February 23, 1905, what is called a summarized executor’s account was filed and a statement summarizing receipts and disbursements as they appear by the annual reports with reference to the two trust funds created by the will. Upon none of these accounts was there any hearing. There was no publication of notice of hearing or proof of personal service of notice of hearing. None of them were settled and allowed. By a stipulation, it was agreed between complainant and Henry D. Brown that a hearing in open court be had upon all the reports on the 8th day of February, 1905, at 10 o’clock. Sometime in March, 1905, as the record is understood, Mary (Combs) Brown petitioned the probate court to revive the commission on claims and to allow further time for the examination and adjustment of claims, settingup that she was the owner of a valid claim amounting to $2,500, which she had not presented. In an amended petition, which was filed March 28, 1905, she sets out the basis of her claim with more formality. Her claim, known in the record as the Pressburg note and mortgage, was allowed by the probate judge, who acted as commissioner on claims, at the sum of $2,636.67, and a certain mortgage, known as the Lovett estate mortgage, amounting to $2,556.67, was allowed as a contingent claim against the estate. Complainant appealed from this order to the circuit court for the county of Kent, and her appeal was perfected and is pending.

June 6, 1905, complainant filed the bill in this cause. She asks that a quitclaim deed of the homestead, made by her to her father, be canceled; that a mortgage upon the homestead given to the People’s Savings Bank by her father November 14, 1894, to secure payment of borrowed money, be canceled; that her father account for the annual value of the use and occupation of the homestead; that her father account for all funds which came into his hands as charged in the bill; that he account for household goods and chattels; that the will be construed; that defendant Mary Brown be decreed to deliver up the Press-burg note and mortgage and that it be discharged and canceled; that it be decreed that she has no claim against the estate of Cordelia Brown; that Henry D. Brown be restrained from proceeding in an accounting in the probate court and from disposing of any of the estate, and the defendant Mary Brown be restrained from the prosecution of her claim until the further order of the court. The case was heard in open court. None of the answers challenge the jurisdiction of the court, but when the taking of testimony began it was objected on the part of defendants that the court had no jurisdiction in the matter of an accounting, and that the allowance of claims in probate court could not be reviewed by the superior court of Grand Rapids.

The questions involved in the appeal from a decree dismissing the bill of complaint are stated by counsel for complainant and appellant as follows:

“1. Whether or not Cordelia Brown died seised in fee simple of the Brown homestead under a conveyance of the same to her by Henry D. Brown. If this issue is found for the complainant, then,
“2. Whether or not the defendant, Henry D. Brown, obtained from Mabel B. Draper the quitclaim deed of the homestead of date September 6th, 1898, by fraud, and the deed should be set aside; and,
“3. Whether or not the People’s Savings Bank is a mortgagee in good faith.
“ 4. Whether or not the bequest of the residuum by the 6th paragraph of Cordelia Brown’s will created a separate and distinct trust fund, not liable to share in any losses of the other trust created by such will.
“5. Whether or not it was the duty of the executor under the law and the will to invest the residuum of the estate and pay the income thereof annually to the complainant, and if he failed in such duty to make good to the complainant the loss from his neglect.
“ 6. Whether or not the executor is liable to make good to the complainant the loss of the Bostwick street property by reason of gross neglect and bad faith in failing to sell such real estate and invest the proceeds as required by the 5th paragraph of the will.
“7. Whether or not Henry D. Brown as executor, by the purchase of the Pressburg mortgage in the name of Mary Brown and procuring in her name the allowance of two claims thereon, both barred by the statute of limitations, did not attempt to defraud the complainant of her entire estate under her mother’s will.
“8. Whether or not the executor should be charged with $3,000, as one-half of the premium paid by Eliza Sprague to Henry D. Brown and Cordelia Brown for the purchase of the Sprague annuity, together with interest thereon.
“9. Whether or not the executor, because he kept no separate account of the trusts created by the will, nor any account of the money belonging to the estate, nor made any investment of the residuum, and received and used all the trust funds as his own money during his entire administration, is entitled to compensation and commissions.
“10. Whether or not the admission of the incompetent testimony of Brown, the surviving grantor and her agent managing her personal estate, eliminated from the case a consideration of the fact that the trial judge saw the witnesses, and,
“11. Whether or not the defendants by answering without any objection to the jurisdiction of the court, can, after the hearing has begun, raise a question of jurisdiction by objections to evidence.
“12. Whether or not the complainant has been guilty of laches.”

Quite the most important question in the case is the one concerning the ownership of the homestead. It is a valuable property, worth $10,000 or more. Its rental value is $850 per annum. Complainant charges that her mother, Cordelia, died seised of the property, it having been conveyed to her on or about December 31, 1878, by defendant Henry D. Brown. She charges further that she knew nothing about this conveyance and her mother’s right until shortly before the bill in this cause was filed. The conveyance was not recorded and is not produced. Some of the facts going to make up the history of the matter are not in dispute. Henry D. Brown did, as his answer admits, execute a deed of the property to his wife. This admission is coupled with the statement:

“ That the said deed was never delivered to her and was never intended to be delivered unless he died before she did; that it was executeij, and placed in an envelope marked to be delivered on his death and was intended as a testamentary disposition of his property in case said Cordelia Brown should survive him ; that said deed always remained among his private papers, and that with the knowledge and consent of the said Cordelia Brown the same was' destroyed several months before her death and that it was so destroyed before the time she made her last will and testament.”

Henry D. Brown purchased the property in 1874. The record title was then and is nowin him. It is not claimed that Cordelia paid him for a conveyance of the property. In September, 1893, complainant, at the request of her father, executed and delivered to him a quitclaim deed of the property, which he had caused to be prepared, and this deed was recorded September 8 1893. It contained the following recital:

“The purpose of this deed is to perfect the title to said premises in said Henry D. Brown, the said premises at one time having been deeded by said Henry D. Brown to his then wife, Cordelia Brown, also known as Delia Brown, now deceased, and the deed having been destroyed without ever having been recorded, the said Mabel H. Brown, now Mabel Brown Draper, being the only child and sole heir at law of said Cordelia Brown, deceased, and the sole legatee in the will of said Cordelia Brown, deceased.”

This deed recites a consideration of one dollar. No consideration, in fact, passed.

There is no evidence that Cordelia ever claimed to own the homestead or asserted title thereto, unless such evidence is found in the following facts: Henry D. Brown was indebted to John Lawrence in the sum of $12,000, evidenced by a note made by Brown and guaranteed by his wife, payment of which was secured by a real-estate mortgage. A release of part of the mortgaged premises was given, and, under date October 28, 1882, Brown and his wife made a new mortgage conveying the homestead as security for the debt in place of the property released. The mortgage recited the earlier mortgage, the release of a part of the mortgaged premises, and contained the further recital that it was given as collateral security to the earlier mortgage. In 1884, Mr. Lawrence assigned both mortgages to William B. Ledyard. Thereafter, under date March' 28, 1885, a mortgage conveying the homestead was executed by Cordelia Brown, described as Delia Brown, tt> Mr. Ledyard, and was later on duly recorded. This instrument recites that in 1880 Henry D. and Cordelia executed and delivered the first mortgage referred to to Mr. Lawrence, that in 1882 they executed and delivered the second mortgage referred to, the assignment of these mortgages to Ledyard, an agreement to extend the time of payment, and that—

“Whereas, by deed bearing date December 31, 1878, the said Henry D. Brown conveyed to the said Delia Brown the premises described in the mortgage executed as aforesaid on the 28th of October, 1882, which deed is still unrecorded * * * this mortgage being intended as additional collateral security.”

Henry D. Brown was not a party to this mortgage. It is assumed that he knew about the transaction at the time it occurred. He paid the indebtedness and the mortgages were duly discharged. In 1888, a mortgage of the homestead was made, describing the grantors therein as Cordelia Brown and Henry D. Brown, husband and wife. Again, in 1890, the homestead was mortgaged, the grantors being described as Henry D. Brown and Cordelia Brown, husband and wife, with the recital that Cordelia conveyed in her individual capacity and as wife of Henry D. Brown. Cordelia Brown was an educated and very intelligent woman. In her will, she does not describe, or refer to, the homestead. The fifth clause of her will, hereinbefore set out, describes other and very much less valuable real estate. She owned, also, an interest in other realty, appraised at the sum of $750, which accounts for the reference to real estate in the 6th clause of the will. The last two mortgages upon the homestead, already referred to, were given to a sister of Cordelia Brown, named Eliza Sprague. The first secured payment of a promissory note for $4,000, made by Henry D. Brown, the other secured the performance of the condition of an annuity bond. Mr. Gleason was attorney for Eliza Sprague, and represented her in the settlement of a demand against Henry D. Brown for a legacy coming from her father’s estate into the possession of Brown. He arranged for the annuity bond and the mortgage securing the same. He drew the bond and the mortgage and he also drew Mrs. Sprague’s will and had it in his possession when she died. He drew the quitclaim deed of the homestead which complainant executed and he drew Cordelia’s will. Mr. Gleason testified that before he drew the Sprague mortgage Cordelia told him that a deed had been made to her of the homestead and was not recorded. • She did not say whether it had been delivered to her, or whether it was to take effect at Mr. Brown’s death. He testified:

“I was working for Mrs. Sprague and I proposed to put that so her property — her rights under that — could never be questioned by any question of the title.”

This was the mortgage in which the grantors were described as Henry D. Brown and Cordelia Brown, husband and wife, and Cordelia is described as conveying in her individual capacity and as the wife of Henry D. Brown. William B. Ledyard is dead. No one living is able, it seems, to explain, if explanation is necessary, the fact that Cordelia as sole mortgagee executed to Ledyard the mortgage of the homestead. Henry D. Brown testifies that he had forgotten the transaction. He, and counsel for him, attempts, as is natural, to explain the transaction in accordance with a theory that Brown told Ledyard, or that Ledyard otherwise learned, that there was an unrecorded deed which antedated the mortgage assigned to him by Lawrence, and that, when an extension of credit was asked for, this ultra-precautionary method of insuring his security was adopted. The explanation is not unreasonable, although not conclusive. The significance of the mortgage executed by the wife alone as evidence of an asserted ownership of the property is affected by the facts that the Lawrence mortgage and the first and second mortgage to Mrs. Sprague, all of them executed later than the deed, are signed by both the husband and wife, who are described in the instruments as grantors.

As further evidence tending to prove the delivery of the deed of the homestead, complainant relies upon the contents of a letter written by Mr. John S. Lawrence September 13, 1882, to his father, from whom Brown desired to procure, as has been already stated, a release of mortgaged premises. Mr. Lawrence has now no independent recollection of the offer of new security made by Brown, and the letter does not refresh or aid recollection. He assumes that in his letter to his father he conveyed the proposition made by Brown. The language employed is:

“He offers his wife’s mortgage on the house and lot he occupies and tells me that the lot cost $5,000 and the building of the house $16,000 and a little over, and that he was offered $14,000 for the premises very recently.”

The letter was written by the witness at a time when recollection of whatever was said by Brown should be fresh. It is a narration from recollection. Other considerations aside, the competency of such evidence is tested, first of all by the ability of the writer to guarantee that the record accurately represents his knowledge and recollection at the time. 1 Wigmore on Evidence, §§ 746, 747; Fisher v. Kyle, 27 Mich. 454. Upon the subject of Brown’s statements concerning ownership of the property, or what words or language he employed, the witness frankly says :

“I can give absolutely no testimony except the probabilities from my having written that to my father. Outside of these letters I know no more about it than the first man you could pick up on the street.”

He testifies that he has no independent recollection of the transaction, that except as to value his information concerning the property was derived from Brown and he has no doubt that Brown made the statements narrated in the letter. Complainant seeks to give it the effect of an admission made by Brown supporting an inference that his wife owned the property. But the writing, “ He offers his wife’s mortgage on the house and lot he occupies,” is not a memorandum of a statement made by Brown. What is stated is, apparently, a conclusion of the writer. We feel obliged to reject the letter as evidence of an admission by defendant Brown. Its probative value is, in any event, small, for the reason that after making an examination of the title the witness accepted and recorded a mortgage of the homestead executed by Brown and his wife.

We are asked to presume the fact of delivery of the deed of the homestead and the passing of the title thereto by her husband from the fact that Brown procured the quitclaim deed, with its recitals, from his daughter. No one questions the rule that a voluntary conveyance of real estate, deliberately made by a husband to his wife, is binding upon the grantor, and, if the deed is recorded and acted upon by their mutual concurrence, a delivery of the deed and its acceptance may be presumed. Jackson v. Cleveland, 15 Mich. 94; Gould v. Day, 94 U. S. 405. Perhaps the rule should be extended to a case in which the heir of the grantee is requested by the grantor to make a reconveyance of the property. There is force to the argument which is advanced that if the deed of the homestead had never been delivered but had been always kept by Brown he would not have desired a conveyance from his daughter. The deed not having been recorded, the obtaining of a reconveyance from the heir, in the absence of other evidence of delivery, and in view of the fact that the admission of its execution relied upon is coupled with a denial of delivery, is in no sense conclusive of the fact of delivery of the original deed, but is, at most, a circumstance to be considered in determining whether there was a delivery. A reason for securing the quitclaim deed may be found in a reported assertion, made by Mr. Draper, of some title which his wife had to the homestead. It is not unlikely that the person making the report and Mr. Draper each misunderstood some of the facts, viz., that Mr. Draper understood that Brown was proposing to obtain a loan upon the property belonging to his wife, adjoining the homestead, and that the neighbor Pelton, now deceased, who had been applied to for the money, understood Mr. Draper to refer to the homestead in making his assertion with regard to the interest of his wife. As to the oral testimony affecting the question, we are obliged, after a serious but vain effort to harmonize it, to determine whom we will believe. We find that complainant was told by her father, as early as the year 1893, and before she executed the quitclaim deed, the facts now admitted by him. We find that the important recital in the quitclaim deed executed by her was read over to her, in the presence of her husband, and that Mr. Gleason then and before she executed it told her that Cordelia had told him when he drew her will that she did not own the homestead. We use neither of these declarations as establishing the facts stated, but as charging complainant with knowledge of the position of her father with respect to the title to the homestead. Twelve years later the bill in this cause was filed, and meantime no fact concerning this title has come to the knowledge of complainant except the one that Cordelia was sole grantor in a mortgage of the homestead executed to Mr. Ledyard. No application of the rule which requires close scrutiny of the dealings between father and daughter in the relations here disclosed can aid the daughter until it is first determined that he secured from her by her deed a legal or a beneficial interest in property. The mere fact that he made statements to her which she may have believed and which induced her to give the deed, is not a reason for discrediting those statements, any more than it is a reason for finding them to be true. Henry D. Brown testified, and this testimony we hold is not made incompetent by the statute (Ripley v. Seligman, 88 Mich. 177, 190), that he kept the deed of the homestead in an envelope in his safe at the brickyard, which envelope he produced at the hearing; that his wife never saw the deed unless it was at the time of its destruction, although she was told by him that the deed was in existence and where to find it. The envelope bears the indorsement, now partially erased but visible, “In the event of my death, the within paper to be recorded. H. D. B.”

We have concluded, after a survey of all of the evidence bearing upon the question, and without, except as above stated, relying at all upon the testimony of Mr. Brown or upon that of Mr. Gleason, favorable to defendant Brown, that complainant has not, by a preponderance of evidence (Devaney v. Koyne, 54 Mich. 116), aided by presumptions which we are bound to indulge, established the fact that her mother died seised of the homestead property. We have been strongly influenced by the terms of the will and by the great lapse of time since complainant knew of the execution, the asserted nondelivery, purpose, and destruction of the deed. We thus dispose, adversely to her, of the first, second, and third of complainant’s contentions.

It is not the province of a court of equity to allow or disallow claims against estates of deceased persons, or to administer estates; especially after the subject has been entered upon in the probate court. Shelden v. Walbridge, 44 Mich. 251; Lafferty v. People’s Savings Bank, 76 Mich. 35, 68, and cases cited: Dickinson v. Seaver, 44 Mich. 624.

The jurisdiction of the superior court of Grand Rapids, sitting in equity,to determine ownership of the homestead, to construe the will of Cordelia Brown and to instruct and direct the trustee with respect to the trust estate,is affirmed. The question said to involve construction of the will is the one numbered 4 by counsel for appellant. The property described in the 5th clause of the will is encumbered by two mortgages, aggregating $5,500. It was purchased by Cordelia, subject to a $3,000 mortgage, $2,500 was paid by her and a purchase money mortgage for $2,500 was given. In the mortgage which secures the personal indebtedness of Cordelia, she covenanted that the premises were unencumbered. There are two dwellings upon the property which, since the death of Cordelia, have furnished the only income from the property. The testatrix made no provision for the payment of these mortgages unless it may be said that by the general direction to her executor to pay her debts she contemplated that they would be paid out of that residue which goes to make up the fund under the 6th clause of the will. Whether this was her intention is at least doubtful. Both mortgages were due before she died, and before she made her will. She had paid interest upon them for years. If she had sufficient other estate she could have paid them in her lifetime. The facts that her interest in the property was less than one-half the sum of the mortgage indebtedness and that, if the inventory of her separate estate as made by the executor is correct, her other estate would not pay the mortgage debt — indeed would not pay the larger mortgage — and that she provided in her will for the creation of a fund out of the residue, support the assumption that she thought that the real estate, with the aid of the beneficiary, by án increase in value, by a sale, or otherwise, would in some way take care of itself. If she did not intend that her executor should use her other estate to pay the mortgage indebtedness, then the ultimate devolution of the separate funds created by the will would prevent the trustee from using one fund to augment the other. The owner of the first mortgage could not, in any event, prove his demand against the estate, and was bound to look to the realty. The owner of the other mortgage did not prove his demand. Consequently, assuming, as we do, that payment of the mortgages was not a duty devolved upon the executor by the will, the executor could not pay that indebtedness. Clark v. Davis, 32 Mich. 154. The owner of the second mortgage might have proved his demand. Larzelere v. Starkweather, 38 Mich. 96; Osmun v. Oakland Circuit Judge, 107 Mich. 27. Nevertheless, the accruing interest, like the accruing taxes, was a debt to be paid, unless foreclosure of the mortgage was to be submitted to. In re Lambie’s Estate, 94 Mich. 489; Long v. Landman, 118 Mich. 174. And see Russell v. Wheeler, 129 Mich. 41. While the testatrix could not, by provisions in her will, interfere with the rights or remedies of her creditors or the holders of liens, she could, and did, control the action of her executor and trustee. The provisions of the will permitted and required him to devote the income of the real estate to its preservation alike from decay and from creditors. He had no right to use the income from the residuary fund to preserve the real estate, and only the consent or acquiescence of the complainant, to whom, alone, the net income from both funds belonged, would excuse him in so doing. The fund itself he could not, by her consent, diminish for such a purpose because complainant may never take the fund. We do not find, as counsel for defendants seem to do, authority to use the residuary fund to pay the interest, in the words, “ after satisfying the provisions of the foregoing clauses of this my will,” found in the beginning of the 6th clause. Such an interpretation is negatived by the immediate context. There is no provision of the 5th clause of the will to be satisfied out of the rest, residue and remainder of the estate. But, it is the residue of the estate, after taking from it the property theretofore described, which goes to make up the portion, title to which vested in the trustee under the 6th clause. The conclusion reached is, finding no bad faith in the conduct of the trustee in this regard, that complainant, by her knowledge, of the methods employed by her father, is equitably es-topped to complain of his use of the income of the residuary fund to preserve the other fund, but that defendant Henry D. Brown must account for any diminution of the fund itself. As between himself and the cestuis que trustent, the funds are distinct trust funds. The fact that if he had not paid the interest or made the repairs the mortgages would have, probably, been foreclosed, is not controlling. The trustee and the court must take the will as it is.

It does not follow that the executor must lose the money so paid, if from the fund created by the 5th clause of the will there shall be realized, finally, sufficient to pay the mortgages and more. In such case, equity requires that the surplus shall be used to restore to the fund created by the 6 th clause of the will so much of the principal sum thereof as has been diverted. But meantime, and for the purposes of an accounting, the executor must stand charged with the principal of the last-mentioned fund, having, in his favor, a lien upon the surplus, if there shall be any, arising out of the other fund.

The construction we have given the will and the ruling last above made make it proper, if not necessary, to consider the matter of the allowance of the demand of Mary Brown. Assuming that so long as the estate of Cordelia Brown was not formally closed there was a right to a revival of the commission on claims (Hart v. Shiawassee Circuit Judge, 56 Mich. 592; Quinn v. McGovern, 97 Mich. 114; Heavenrich v. Nichols' Estate, 113 Mich. 508), we are all of opinion that, whatever effect it may have to preserve the lien of the mortgages, payments of interest by the executor did not operate to suspend the running of the statute of limitations in favor of the estate. This ruling is required by the provisions of the statute, sections 9375, 9380, 3 Comp. Laws, and the effect given them by previous adjudications. See Durfee v. Abbott, 50 Mich. 278, 283; Fish v. Morse, 8 Mich. 34; Benjamin v. Early, 123 Mich. 93; Clark v. Davis, 32 Mich. 156; Church v. Holcomb, 45 Mich. 29, 38; McGee v. McDonald, 66 Mich. 628; Sperry v. Moore's Estate, 42 Mich. 353.

Counsel for Mary Brown contend that upon the authority of In re Lambie's Estate, 94 Mich. 489; Russell v. Wheeler, 129 Mich. 41; Long v. Landman, 118 Mich. 174; Houghteling v. Stockbridge, 136 Mich. 544, a different ruling should be made. Upon a review of these cases we are satisfied that none of them support the contention that an administrator or executor may, by payment of interest upon demands against the estate, either revive a demand barred by the statute at the decease of the debtor or admit the liability of the estate upon one otherwise barred by the statute. The law has not been settled uniformly in different jurisdictions. The policy of our law, as declared in the statutes and by this court, is to commit allowance of claims against estates to a commission, to refuse allowance of demands barred by statute and to confine the administrator to payment of demands duly allowed. Action upon Cordelia’s note was barred by the statute in 1897. Morse v. Hayes, 150 Mich. 597. It was presented for allowance in February, 1905.

For the reasons given, the decree of the court below will be modified to accord herewith. The modification is substantial and appellant will recover costs of this appeal from Henry D. Brown and Mary Brown. An injunction will issue to restrain Mary Brown from further prosecuting her claim against the estate.

Montgomery, Hooker, Carpenter, and McAlvay, JJ., concurred.


author: Grant, C. J. Ostrander, J.

text:
    PEASE v. WARNER.
    1. Mortgages — Conveyance by Mortgagor — Assumption of Debt by Grantee — Effect—Principal and Surety.
    Where a mortgagor conveys the mortgaged premises to a ■ grantee who assumes the mortgage debt, the grantee becomes, as to the grantor, the principal debtor, and the grantor is his surety.
    2. Covenants — Operation — Running with Land — Covenant Against Incumbrances.
    In this State a covenant against incumbrances is personal and does not run with the land.
    3. Same — Action for Breach — Conveyance—Effect.
    A right of action for breach of the covenant against incumbrances does not pass by deed of the land.
    4. Same — Mortgages — Foreclosure — Rights of Subsequent Grantee.
    If a covenant against incumbrances in a deed which excepts a certain mortgage, “to be paid on or before five years from” the date thereof, can be construed as a covenant that the mortgage cannot be foreclosed before that time, such covenant will not run with the land, and a subsequent grantee, taking from one who assumed the mortgage debt, cannot, on a bill by the mortgagee to foreclose for a default in the payment of interest agreed to be paid by the mortgagor, have specific performance of the covenant in the mortgagor’s deed, by compelling him to satisfy the mortgagee’s claim, and await the expiration of the five years before foreclosing. Grant, G. J., and Montgomery, J., dissenting.
    Appeal from Calhoun; North, J.
    Submitted October 25, 1907.
    (Docket No. 144.)
    Decided June 27, 1908.
    Bill by George H. Pease against Ben F. Warner, Charles W. Jewett, Anna M. Jewett, and Amariah F. Freeman to foreclose a mortgage. From a decree for complainant, defendant Freeman appeals.
    Affirmed.

      John G. Patterson, for complainant.

      F. M. Freeman (Robert E. Bunker, of counsel), for defendant Freeman.

      H. W. Gavanagh, for defendant Warner.
    On March 2, 1905, defendant Warner executed a mortgage to complainant upon four pieces of real estate owned by him. One was a part of a lot in the village of Homer, with a building thereon, the other three pieces were farm property consisting in all of 110 acres, one of which is Mr. Warner’s homestead. The mortgage was for $6,000, payable in installments, running from one to eight years from date.
    On January 25, 1906, Warner sold and conveyed the village property to defendants Jewett. That deed contained the following:
    “This deed is given subject to one mortgage of six thousand dollars, which second party agrees to assume as part of the above considerations to be paid on or before five years from date March 2, 1905. First party retains the use of said described property until March 2, 1906.
    “Allinterest and taxes to be paid to March 2, 1906.
    “Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining ; to have and to hold the said premises as herein described with the appurtenances unto the said parties of the second, and to their heirs and assigns forever: And the said party of the first part for himself, his heirs, executors and administrators, does covenant, grant, bargain, and agree, to and with the said parties of the second part, their heirs and assigns, that at the time of the ensealing and delivery of these presents he is well seised of the above granted premises in fee simple; that they are free from all incumbrance whatever and that he will, and his heirs, executors and administrators shall warrant and defend the same against all lawful claims whatsoever, excepting the six thousand dollar mortgage heretofore stated.”
    On May 17, 1906, defendants Jewett conveyed said village property to defendant Freeman. The Jewetts covenanted in that deed that the lands are free from all incumbrance whatever except a mortgage thereon for $6,000, given by one Ben F. Warner, former owner of said premises, to one George H. Pease, interest being paid thereon to March 2,1906. The land was subject to the mortgage. This village property was exchanged for some property in the village of Manchester, Washtenaw county, owned by Freeman. Jewett represented to Freeman that the interest was paid to March 2, 1906, that it would run five years before it would mature, and that all that Freeman would be required to do during that time would be to keep up the interest on the mortgage. The amount of the mortgage was deducted from the purchase price. The Jewetts produced a certified copy of the deed from Warner to them and exhibited it to Freeman in corroboration of their statement. Neither the mortgage nor a certified copy was produced to Freeman. He purchased in reliance upon the representations made in the deed as to the terms of the mortgage. The statements were untrue in three particulars: (1) It was payable in yearly installments. (2) It was to run eight years instead of five. (3) The whole became due upon the failure to pay the interest, etc.
    Complainant filed the bill to foreclose the mortgage, alleging a default in payment of the first installment of principal.and interest, due March 2, 1906, his election to declare the entire amount due, and setting forth the above conveyance, and making the parties thereto defendants. Defendant Warner answered and filed a cross-bill, claiming that the village property sold to and now owned by defendant Freeman should first be sold in payment of the mortgage debt.
    The court entered a decree of foreclosure, decreeing that defendant Freeman’s land should be sold first to satisfy the sum of $6,367.21, the amount due on said mortgage debt, less $316.29, which was interest due March 2, 1906, and was unpaid at the time of the deed from Jewetts to defendant, and that Warner’s lands be sold to satisfy the sum of $316.29, which was due March 2, 1906. and unpaid.
   Grant, C. J.

(after stating the facts). It is conceded that complainant is entitled to a decree of foreclosure. The sole controversy arises between Freeman and Warner. The representations made by Warner in his deed to the Jewetts were untrue. It is immaterial whether they were intentionally or thoughtlessly made. Did defendant Freeman have a right to rely upon them ? He had a right to rely upon these deliberate and written representations. The law does not permit one to escape the consequences of his untruthful statements by saying to him who has relied upon them: “You might have made further inquiry and ascertained that my statement was untrue.” Holcomb v. Noble, 69 Mich. 399; Krause v. Cook, 144 Mich. 365.

The court below held that he did have such right so far as the representation of the amount due thereon was concerned, but not as to the date when the mortgage would fall due. If Freeman had a right to rely upon one representation he had a right to rely upon all. He was under no more obligation to make further investigation upon one point than upon the other. If the representation in the deed had been truthfully made, undoubtedly, under the authorities, as well as in reason, the village property, owned by Freeman, should first be sold, because he purchased the property subject to the mortgage, and the' amount was deducted from the purchase price.

Time appears to have been valuable to defendant Freeman. The testimony is clear that he would never have made the purchase had he known that the entire mortgage was then due at the option of the mortgagee. He desired time to dispose of the property, and, under the solemn representation of Warner in his deed, there were five years in which he was only required to pay interest annually at five per cent. Warner’s contract with the Jewetts, his grantees, was that the mortgage had five years to run from March 2, 1905. This contract was a covenant. Was it personal, or does it run with the land ? If the complainant, as he might have done, had collected the note from Warner, Warner would have been subrogated to all the rights of complainant. Could he have foreclosed the mortgage against the Jewetts in violation of his contract and covenant with them that the principal of the mortgage had five years to run ? Could he have compelled payment by the Jewetts before March 2,1905 ? It appears to me that these questions must be answered in the negative.

Are Jewett’s rights under his contract with Warner assignable ? Where a grantor covenanted to warrant and defend the land against all claims except an incumbrance of $1,600, and the incumbrance was in fact $1,900, it was held that it was a covenant running with the land. Johnson v. Hollensworth, 48 Mich. 140. The court, speaking through Justice Cooley, said:

“There is no fixed or essential form for any covenant. A covenant is merely a promise under seal, and to ascertain what it is in legal import we have only to see what the promissor has undertaken for; in other words, what is the legal interpretation of the language in which the promise is expressed.”

What difference in principle is there in covenanting that the incumbrance is a certain amount, and covenanting that the certain amount is all due at a certain time ? Under defendant Warner’s theory, if the mortgage had been $10,000 instead of $6,000 as covenanted, his grantee would have been relieved of the payment to him of the excess, though compelled to pay the full amount to the mortgagee; but if he had covenanted that the mortgage was due in ten years, when in fact.it was due in one, that would have been a personal covenant and would not have run with the land. Under this contention, Warner, having paid the mortgage, could not bring suit against his grantees, the Jewetts, but could bring suit for foreclosure against Jewetts’ grantee or any subsequent grantee. I see no logic in such a distinction. The Jewetts are not damaged. The subsequent grantee is. It is said by Chancellor Kent (4 Kent’s Commentaries, p. 472):

“He [the subsequent grantee] is the most interested and the most fit person to claim the indemnity secured by them [the covenants], for the compensation belongs to him as the last purchaser and the first sufferer.”

In Smith v. Lloyd, 29 Mich. 382, the mortgage covenanted against was one for $7,300, which was'the amount of the principal. There was accrued interest, but the court held that it was a covenant not descriptive of the mortgage but of the amount of the existing incumbrance. Justice Christiancy in that case said:

“When the grantor covenants against all incumbrances, and to warrant and defend, ‘ except as to a certain mortgage of seven thousand three hundred dollars, made by the parties of the first part to Margaret Davidson, et ah,’ it is certainly, to my mind, a much more natural inference that the sum was intended to be mentioned as the then existing amount of the incumbrance, and so understood by the parties (certainly by the purchaser), than that the entire clause in which the mortgage is mentioned was intended merely as matter of reference or a description of the mortgage by the statement of the sum for which it was originally given, which would leave the purchaser to find out at his own risk what the amount was.”

In Security Bank v. Holmes, 65 Minn. 531, it is said:

“It is immaterial whether we say that a covenant against an incumbrance which is a money charge on the land runs with the land, or that the cause of action for a breach of the covenant is assignable, and passes by deed to the grantee of the covenantee, immediate or remote, who sustains injury by reason of the incumbrance; for in either case we reach the same result. The covenant, which is one of indemnity, in effect attaches itself to the title assumed to be conveyed by the deed, and accompanies it for the protection of the covenantee or any of his assigns who may finally be injured by the incumbrance. In short, for all practical purposes, a covenant against incumbrances which are a money charge on the land runs with the land until they are discharged.”

A covenant as to the time when an incumbrance becomes due may be more disastrous to a purchaser than a covenant falsely representing the amount. One may be willing and able to purchase and pay for land where he has five years in which to pay an incumbrance, but would not purchase if he must pay in one year. I can see no difference in principle between a covenant as to amount and a covenant as to time.

It is equitable and just that Warner should, if he can, make these representations good. Freeman is not seeking to avoid the ultimate liability of his land for the debt. The purchase price was 19,500. Under the decree the defendant is required to pay $6,000 five years before, under Warner’s representations, he would be required to. Warner should make good his deliberate representations if it is in the power of a court of equity to compel him to do so. We think it is. If he pays the mortgage debt he is subrogated to the lien upon the defendant’s land, and at the end of five years can foreclose, and before, should Freeman fail to pay the annual interest. Warner, and not Freeman, is responsible for this unfortunate state of affairs. The party responsible should suffer the inconvenience, and, if necessary, ultimate loss. Warner should be allowed the privilege of paying the mortgage, which he can do at any time, and take an assignment thereof to himself. In this way he will suffer no loss. If he cannot procure the money, then his own lands must be sold first, and in that event he will be subrogated to the mortgage lien upon the property. Such a decree does exact justice, compels Freeman to pay according to his agreement, and secures Warner from loss.

The decree should be reversed, and decree entered in this court in accordance with this opinion, with the costs of both courts.

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

Ostrander, J.

I am not able to agree with the conclusions stated in the opinion of the Chief Justice. The mortgage in question was made payable according to a certain note. The terms of the note were that $300 of principal should be due each year for three years, $500 the'fourth year, $500 the fifth year, with the privilege of then paying in full. If there was any unpaid principal after the fifth year, it became due eight years after the date of the mortgage, which was March 2, 1905. Only $1,900, it is seen, fell due during the first five years. If no more was paid, the remaining $4,100 fell due at the end of eight years. The alleged misrecital or misleading description of this mortgage contained in the deed made by the mortgagor to Jewett consists of the words “to be paid on or before five years from date March 2, 1905,” found in the sentence:

“This deed is given subject to one mortgage of six thousand dollars, which second party agrees to assume as part of the above consideration to be paid on or before five years from date March 2, 1905.”

Succeeding this sentence are the following:

“ First party retains the use of said described property until March 2, 1906. All interest and taxes to be paid to March 2, 1906.”

The deed does not otherwise contain any description of the mortgage. It is silent as to rate of interest, time of interest payments, requirements that the taxes and the insurance premiums shall be paid, the conditions precedent to foreclosure. Eeference to the instrument, or to the record thereof, and to the note or the acceptance of a parol statement of its terms was necessary if a purchaser desired information. It is a condition of the mortgage that interest shall be paid annually at the rate of five per cent., and that if any default is made in the payment of the interest and it remains unpaid for 60 days, the mortgagee, at his option, may declare and treat the whole indebtedness as due and payable and may foreclose the mortgage. There are like conditions with respect to taxes and insurance premiums. If an installment of principal becomes due and is not paid, foreclosure of the mortgage for such past due installment may be begun. What actually occurred was that neither the interest falling due March 2, 1906, nor the first installment of principal, was paid. It was more than 60 days overdue when defendant Freeman accepted his deed. The mortgagee declared the whole amount of the mortgage to be due and instituted this suit. Defendant Warner, in his deed to Jewett, promised to pay this installment of interest. Jewett, in his deed to Freeman, represented that it had been paid. Freeman accepted these assurances and without further inquiry purchased the property. He, accepted from his grantor a covenant to warrant and defend against all lawful claims except a mortgage—

“For six thousand dollars given by one Ben F. Warner, former owner of said premises, to one Q-eorge H. Pease, interest being paid thereon to March 2, 1906, * * * second party taking said premises by this deed subject thereto.”

By his transfer of a portion of the mortgaged property to Jewett, subject to the entire mortgage debt, Jewett assuming the mortgage as a part of the consideration, Warner, as between himself and Jewett, paid the mortgage. Jewett became, as to Warner, the principal debtor, and Warner his surety. Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10; Higman v. Stewart, 38 Mich. 518, 523; Corning v. Burton, 102 Mich. 86. And see Hicks v. McGarry, 38 Mich. 667. The mortgagee asks for, and may insist upon, a decree for deficiency against Jewett, who is not contesting. It is defendant Freeman who is insisting that the property shall not be immediately devoted to the payment of the mortgage. It is his theory that he is entitled to have a sale of the premises deferred, upon payment of the interest, until five years after March 2, 1905, because in the deed from Warner to Jewett the property was not sold subject to a mortgage due, or to become due presently, but subject to one falling due on or before five years from March 2, 1905.

It is to be noticed that no fraud on the part of Warner is charged or attempted to be proved, and, further, that the Chief Justice, in his statement of the case and in the reasoning employed, does not rely alone upon the alleged misdescription of the mortgage in the Jewett deed, but upon that and an omission to state in the deed that the mortgage contained what is known as an interest clause. The conclusion, therefore, involves the proposition that if one deeding land incumbered by a mortgage against which he refuses to covenant, and which the grantee assumes, sets out in his deed any of the terms of the mortgage, he must also set out any qualifying terms of those terms or be responsible as for a misrepresentation by concealment; and the further proposition that a subsequent grantee of the equity of redemption, who does not assume the debt, who has accepted a different contract and covenant concerning the same subject-matter, and who buys expressly subject to the mortgage, may have, in effect, specific performance of the representation, or the covenant, of his remote grantor. Conceding, for the purposes of argument, that courts of equity have jurisdiction to compel specific performance of such a covenant (see, generally, Rawle on Covenants for Title [5th Ed.], §§ 358-369), the opinion is consistent only if reliance is placed upon the fact that the deed did not state that if the interest on the mortgage was not paid, the whole sum secured might be declared to be due and immediately payable, because the trouble arises, not on account of the alleged misrecital in the deed, but because the interest was not paid. So far as any actual default on the part of Warner is concerned, the same situation would exist if the description given corresponded with the terms of the mortgage. The mortgagee might or might not have foreclosed his mortgage for the installment of principal falling due. Freeman might have been willing to pay the annual installments of principal, even though he did not suppose that any of the principal fell due until 1910. In any event, there could be no present demand for the whole debt if the interest had been paid.

By the terms of the mortgage, some of the principal was to be paid before, and all of it could be paid at the end of, five years. It is said the language employed in the deed was a representation, or a covenant, or both, that it was due on or before five years from its date and that the expression “to be paid” on or before a certain date means, in common usage, that it fell due on the date named and was payable earlier at the option of the payee. It is not claimed that the expression was not understood by J ewett, the grantee, or that he did not know all of the terms of the mortgage. When we consider that deeds of conveyance are prepared after the bargain has been made, and that all scriveners do not, with nicety, express the contract, I think it should not be said that the particular expression so plainly means, what it is now contended that it means, that Mr. Freeman was entitled to rely upon his interpretation of it and to bind Mr. Warner thereby.

If the interpretation of the language contended for by appellant is admitted, there was no representation that the mortgage did not have an interest clause, or a tax or insurance clause, unless by construction it is held that the ambiguous words of description referred to have a meaning which excludes the idea that there could be a foreclosure for a greater sum than the unpaid installments of interest. Such a construction, in a court of equity, for the alleged purpose of doing equity, would be a refinement in itself inequitable.

In dealing with this case, it is a mistake to proceed as if Freeman occupied, in fact or in law, the position of Jewett. He does not. Jewett, in fact, promised to pay the incumbrance. Freeman is under no obligation to do so. If it were a question of mere equities, application of the fund should in no case be postponed except upon condition that Freeman become responsible for the payment of the mortgage. As matter of law, so far as defendant Freeman is concerned, there is no property subject to the mortgage except the property in which he purchased the equity of redemption. The argument made for him in this case would as well secure him the right to a specific performance of the covenant if the mortgage conveyed no other property. The method of relief proposed may be convenient, if relief is to be given, but it is not a case for contrasting mere equities. The question which precedes all others is whether defendant Freeman is entitled to any relief. A court of equity will not enlarge his rights. The conveyance of land by virtue of which he is here at all is expressly qualified. The qualification has been recited. He knew that Jewett, his grantor, had assumed the mortgage. His deed contains no reference to any right of action which Jewett had against Warner for the breach of the covenant against incumbrances; a right which, if ever, accrued before Freeman purchased. In this State, a covenant against incumbrances is personal and does not run with the land. Davenport v. Davenport's Estate, 52 Mich. 587; Lovejoy v. Potter, 60 Mich. 95,101; Matteson v. Vaughn, 38 Mich. 373; Guerin v. Smith, 62 Mich. 369. This is the rule in most jurisdictions. 11 Cyc. p. 1087. The grantee in a deed must make his own contract against incumbrances with his grantor and look to him for indemnity if he is. obliged to pay money or otherwise relieve from an incumbrance not excepted in his deed. This court has never made a contrary ruling. The case of Post v. Campau, 42 Mich. 90 (see Davenport v. Davenport's Estate, supra, for comment), and the case of Johnson v. Hollensworth, 48 Mich. 140, are neither of them authority for an opposed doctrine. Smith v. Lloyd, 29 Mich. 382, was an action for breach of the covenant against incumbrances and is authority (p. 385) for the proposition that the covenant is broken, if ever, when made. Nor is this latter case opposed in principle to Shanahan v. Perry, 130 Mass. 460.

A right of action for breach of the covenant does not pass by deed of the land. Guerin v. Smith, Davenport v. Davenport's Estate, supra; Norton v. Colgrove, 41 Mich. 544. Defendant Freeman, therefore, has not sueceeded to any of the rights (assuming the contract against incumbrances in the deed from Warner to Jewett to be breached) which defendant Jewett possessed. The court below required Warner to pay the interest upon the mortgage for the first year, not upon the ground that Freeman had the right to rely upon any representation in the deed from Warner to Jewett, but because upon the face of the contract Warner agreed to pay it and in terms made the property the primary fund to pay only the mortgage and the interest, etc., accruing after the first year. Whatever the injustice to Mr. Freeman may seem to be, I conclude that upon the authority of our own decisions we are required to say that a covenant against existing incumbrances does not run with the land, that no right accruing to his grantor passed to Mr. Freeman, and upon reason that he had no right, legal or equitable, to rely upon the description of the mortgage or upon the representations or the covenant made by Warner. The decree should be affirmed, with costs to defendant Warner.

Blair, Hooker, Moore, Carpenter, and McAlvav, JJ., concurred with Ostrander, J.