author: Montgomery, J.

text:
    AUDITOR GENERAL v. STODDARD.
    1. Municipal Corporations — Public Contracts — Special'Assessments — V ALIDITY.
    Under the charter and ordinances of Bay City, requiring that contracts involving the expenditure of more than $200 he let to the lowest bidder, a special assessment to pay for widening a pavement, the basis of which is a resolution of the council extending the width of the pavement, passed after the contract for the paving at a narrower width has been entered into, is invalid, notwithstanding the charter authorizes the council to stop any local improvement and change the plans thereof, and the contract provides that changes therein may be made when deemed necessary, and the right is reserved, without incurring any liability beyond the contract price, to increase or diminish the amount of labor or material, and only a mathematical calculation is necessary to determine the cost of the additional work at the rate provided for by the contract.
    2. Same — Special Assessment — Estoppel to Object.
    An abutting owner, assessed for the expense of illegally widening a pavement after the contract for the pavement had been entered into, who made objection to the widening at the first meeting of the city council after the action was taken, served notice on the comptroller of the city and the contractor that he would contest the validity of the assessment, and appeared before the board of review and objected to the assessment, is not estopped to contest the validity of the tax on objection to the petition of the auditor general to sell the land as delinquent for the tax.
    Appeal from Bay; Collins, J.
    Submitted November 13, 1906.
    (Docket No. 128.)
    Decided March 5, 1907.
    Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections filed by John L. Stoddard. From a decree for contestant, petitioner appeals.
    Affirmed.

      Brakie J. Orr, Prosecuting-Attorney (S. 67. Houghton, of counsel), for petitioner.

      Stoddard & McMillan, for contestant.
   Montgomery, J.

This is an appeal from a decree entered by the circuit court, in chancery, for Bay county, on the auditor general’s petition for the sale of lands delinquent for taxes. The tax against which contestant filed his objections was a special assessment levied for the construction of an asphalt pavement on Center avenue, in Bay City. The cost of said pavement, pursuant to the provisions of the city charter, was raised by a bond issue, and the payment of the bonds is provided for by assessing 70 per cent, of the cost of the pavement to the abutting property specially benefited, and 30 per cent, to be paid by the city; payment of said taxes to be made in five annual installments.

The pavement was constructed under contract regularly made June 5, 1902, with the lowest responsible bidder, which contract, among other things, provided that said pavement should be built 40 feet in width. Thereafter, at a regular meeting of the common council, held July 7, 1902, the following resolution was adopted:

Resolved, That the pavement on Center avenue, between the west line of Trumbull street and Michigan Central Railroad tracks, be widened so as to make it 17 feet on each side of the right of way of the Bay Cities Consolidated Street Railway Company; and be it further
Resolved, That the board of public works take such steps in the premises as may be required to carry this resolution into effect.”

The effect of said resolution was to provide for a pavement 5J feet on each side of the street railway right of way wider than the contract provided for. At the next regular meeting of the common council contestant and 25 others by communication objected to the widening of said pavement, giving as a reason therefor that the width provided for in the contract was sufficient, and that the widening would be of no benefit to the abutting property, and would be imposing an unjustifiable burden upon the taxpayer. At a regular meeting of the board of public works July 14th, the resolution to widen the pavement herein-before mentioned being under consideration, said board and the city engineer, who is a member of said board, changed the plans so as to make the pavement 17 feet wide on each side of the.street railway right of way, in conformity with the wish of the council, which action was duly reported to the common council, said board having duly considered the said remonstrance and objections to such widening, after which the pavement was constructed the additional width of 5 feet 3 inches on each side of the street railway right of way, and the assessment roll was prepared by the city comptroller as hereinbefore indicated, and reviewed and approved by the said board of public works. Contestant on the 5th of August served notice upon the comptroller of the city, and also upon the contractor, objecting to the increase of the width of the pavement, and insisting that he would contest the validity of any assessment made to cover its cost. Contestant also appeared before the board of review and objected to the assessment on account of the unauthorized widening of the street and on other grounds.

On the hearing the objections filed by contestant were sustained only as to the additional- assessment made to pay for the cost of the widening of the pavement, and, as contestant did not appeal from the order of the court, the only question presented in this issue is to the validity of the assessment to defray 70 per cent, of the cost of the widening of said pavement, exclusive of street intersections, being that portion of said pavement 5 feet 3 inches wide on either side thereof not originally contracted for.

The petitioner contends that there was no jurisdictional defect in the proceedings to levy the tax for this improvement, and that it follows that, under the doctrine of this court in proceedings of this nature, irregularities which do not affect the substantial rights of the taxpayer are to be disregarded and the tax upheld. Auditor General v. Sparrow, 116 Mich. 574; Auditor General v. Griffin, 140 Mich. 427.

The contestant contends, on. the other hand, that the proceedings are jurisdictionally defective, and that, as this proceeding furnished him his first opportunity to assert his rights in any court, he is not too late to be heard.

An ordinance of the city provides that all contracts involving an expenditure of more than $200 shall be let to the lowest bidder. Section 120 of the charter (Act No. 448, Local Acts 1897) by implication requires a letting on a bid. The case is presented upon the assumption that a bidding is essential. It is insisted, however, that as only a mathematical calculation is required to determine the cost of the additional work, and as section 134 of the charter authorizes the council to stop any local improvement and change the plans thereof, and as the contract contained a provision that changes therein may be made when deemed necessary for the convenience, safety, and stability of the work, or as shall be deemed advisable by the city engineer to make a first class job, and as the right is also reserved, without incurring any liability beyond the contract price, to increase or diminish the amount of labor or material, or both, within such limits as may be deemed advisable by such board, there was authority to make the change in question. We do not think the charter provision relied upon was intended to confer the power to dispense with the formalities of a new contract after a plan is changed. Nor does the reservation in the contract extend the power to enlarge the contract in the manner attempted here. The case of Ely v. City of Grand Rapids, 84 Mich. 336, cannot, on this point, be distinguished from the case in hand.

Contestant has not lost his right to complain. He is not invoking the aid of the court. He is defending against a tax imposed without jurisdiction. He is not estopped. Auditor General v. Calkins, 136 Mich. 1; Muirhead v. Sands, 111 Mich. 487. It would be otherwise if the defect were a mere irregularity, not injuriously affecting the contestant’s rights. Auditor General v. Sparrow, supra.

The decree is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    VOGLE v. UNION CENTRAL LIFE-INSURANCE CO.
    1. Interpleader — Grounds.
    A party is not entitled to maintain a bill of interpleader unless it fairly appears that, without his fault, he is placed in a position where it is impossible to decide safely between adverse claimants.
    2. Same — Life Insurance — Proceeds of Policy.
    A life-insurance policy expressly gave the company the right to withhold from the assured or his assignees the amount of any indebtedness to the company and at the time of its issuance the assured borrowed a sum equal to the face of the policy and secured the same and a part of the premiums on the policy by mortgage on real estate, the policy referring to the mortgage. Subsequently, complainant bought the real estate subject to the mortgage, took an assignment of the policy, and paid the premiums and the interest on the loan on assurances from the company that the policy on maturity would pay the principal of the loan. On a bill by complainant to compel the company to apply the proceeds of the policy in payment of the mortgage debt, held, that defendant was not entitled to require complainant to interplead, a third person also claiming the proceeds of the policy by assignment from assured, the equities appearing to be with complainant.

      Appeal from Cass; Des Voignes, J.
    Submitted November 15, 1906.
    (Docket No. 174.)
    Decided March 5, 1907.
    Bill by Mary E. Vogle, administratrix of the estate of William H. Vogle, deceased, against the Union Central Life-Insurance Company to require the application of the proceeds of a policy to the payment of a mortgage debt. Defendant filed an answer, asking that complainant be required to interplead. From a decree denying the prayer for an interpleader, and granting the prayer of the original bill, defendant appeals.
    Affirmed.
    On or about July 1, 1891, one Henry Shriner borrowed of the defendant $3,500, and, at the same time insured his life in the defendant company for that amount, securing both the money borrowed and $1,537.20 of the premiums on the policy by a mortgage upon certain real estate, executed by himself and his wife. The real estate mortgaged was worth about $5,200. December 30, 1893, William H. Vogle, the husband of complainant, purchased this land except a small piece worth about $200,' and, it is averred in the original bill, took an assignment of the policy, at once notified the defendant thereof, and thereafter all the premiums were paid by Vogle during his lifetime, and by Mrs. Vogle after his death. Vogle died in March, 1897, and thereafter the defendant sent the premium notes to the bank at Cassopolis for collection, and notified Mrs.- Vogle to pay them, and asked the bank to also notify her. The mortgage matured 10 years after its date and the policy 15; so that at the time the mortgage matured the policy was not available. Some months before the mortgage matured Mrs. Vogle began writing the company concerning both the mortgage and the policy. Under date of'July 27,' 1900, after she had paid the last premium note on policy, she is informed that the company holds the policy under an assignment as additional security, and that any other assignment is subject to this assignment to the company. August 27, 1900, they write her that five more premiums are to be paid before the policy matures, but that the mortgage will mature in 1901.
    “With reference to the dividend, would say that the dividend has gone to the credit of the policy, and we do not see how in any manner you will be caused to lose by it. We understand you have a creditor’s interest in the pol-. icy, and we presume, therefore, that you will be entitled to receive such sums of money as you have invested in it with interest.”
    May 3, 1901, they write:
    “This policy was made payable to the insured, but subsequently the company was notified of assignment January 1, 1894, to William H. Vogle, and June 21, 1900, to Cora B. Hoover. The premiums upon this policy have been paid in full to June 30, 1901. This policy of insurance will mature as an endowment June 30, 1906, providing the premiums not yet matured are promptly paid. The mortgage loan will mature July 2, 1901.
    “ Now, if you expect your interest in the life-insurance policy to pay off the mortgage debt it will of course be necessary for you to arrange for an extension of the mortgage loan until June 30, 1906, the date upon which the policy matures.”
    May 10, 1901, they write:
    “ I regret exceedingly that you have never had until my last letter the information desired relative to the Henry Shriner business relations with thi's company. There is no possible excuse for your not having just exactly this information. Your letters heretofore must have been misunderstood. * * *
    ‘1 If now you have the money in hand to pay the $3,500 loan of July 2, 1891, it is, of course, absurd for you not to apply it to the payment of the same and stop the interest; but if your only resource for the payment of this debt is the life insurance, it will of course be necessary for you to pay interest on the $3,500 until the life insurance matures.
    “ Now, if it is agreeable to you, I will make the rate of interest on the $3,500 loan from the maturity of the note, July 2, 1901, 6 per cent., will make the extension for the term of 10 years, and will give you the privilege of partial payments in any amount at any time not to exceed one-fifth of the principal in any one year. This will enable you to apply your savings right to this principal debt thus reducing the debt, and I will make you a corresponding rebate of interest each year for payments on account of the same. If this is agreeable, kindly indicate it, and I will send you the proper papers for execution.
    “ Now, you refer to the assignment of the Shriner policy. You did not understand me. I stated that the company had received notice of the assignment to William H. Yogle January 1, 1894, and to Cora B. Hoover June 21, 1900. I am not aware of the relationship of these parties, whether their interests are inimical or not.
    “The company will pay this policy at maturity if the premiums are kept fully paid and the contract otherwise carried out, upon proper receipt by the parties interested. If you are the real owner of the policy there ought to be no trouble in your receiving the full proceeds of the same. I have no reason to doubt but that the policy was properly transferred.”
    May 25, 1901, they write:

      “Dear Madam: Permit me in reply to your favor of the 20th inst. as follows:
    “1. Policy No. 83,514, Henry Shriner, June 30, 1891, matures and is payable 15 years from its date.
    “2. The cash proceeds of the policy at the end of 15 years is $3,500.
    “3. The mortgage note is also $3,500. If the interest is paid up to June 30, 1906, the proceeds of the policy will pay the loan.
    “4. In the event of death of Shriner prior to the end of 15 years the amount of $1,500 is payable in cash if there are no outstanding obligations on account of premiums. If the interest on the mortgage is paid up to the date upon which the insurance contract is payable by death it will pay the mortgage principal. * * * ”
    June 21, 1901, they write concerning extension, and finally the matter was arranged by complainant giving the company five notes for the annual interest on the $3,500 at six per cent., so as to extend the maturity of the mortgage from year to year until the policy should mature, either by the death of Shriner or by its terms. Shriner died May 9, 1905, arid complainant made satisfactory proofs thereof and of her interests.
    The policy contains the following provisions:
    “And the said company does hereby promise and agroe to pay the amount of said insurance at its office in the city of Cincinnati, to said insured, on the 30th day of June, A. D. 1906; or should the said insured die previously and while this policy is in force then within sixty days after due notice and proof of the death of the said insured, the company will pay the amount of said insurance to the executors, administrators or assigns of the insured, the balance of the year’s premiums, if any, and all other indebtedness to the company being first deducted. * * *
    “In case this policy should be assigned or held as security, written notice thereof shall be given to the company and due proofs of interest produced with proofs of death.”
    It also refers to the mortgage as follows:
    “With a mortgage given in connection with this policy securing the first five notes.”
    It is admitted that Mrs. Vogle and her husband, before his death, paid all the premiums, and that there was due when the bill was filed the sum of $3,500 secured by the mortgage, to be paid to the company, and the $3,500 under the policy, which was in the hands of the company, and could be applied by it upon the mortgage debt. Mrs.. Vogle claimed that it should be so applied, and the com-' pany asserted a doubt about the matter. ,
    Complainant filed a bill of complaint, setting up the foregoing facts, and praying that the amount secured by the policy of insurance be decreed to be the primary fund for the payment of the mortgage debt.
    The answer admits that the life-insurance policy was taken out as a security to the company, but denies the averment of the bill that such policy was to provide a primary fund for the payment of the debt. The answer avers that Jonas O. Hoover, as executor, claims to be the owner of the policy under an assignment to Cora B. Hoover (the date of which is not given); avers that Hoover has instituted suit upon the policy in Cook county, 111., and claims his assignment to be prior to the alleged assignment to William H. Yogle. The answer prays that Hoover and complainant may be required to interplead.
    The answer of complainant, to so much of defendant’s answer as is in the nature of a bill of interpleader, contains a demurrer clause. On the hearing the defendant’s prayer for an interpleader was denied, and complainant was granted the relief prayed. Defendant has appealed.

      M. L. Howell, for complainant.

      Harsen D. Smith, for defendant.
   Montgomery, J.

(after stating the facts). Some criticism is made of the terms of the decree, as it affects the conflicting interests of complainant and the creditors of William H. Yogle, but as the decree fully protects the interest of the insurance company, as against representatives of the Yogle interests, it is enough to say that defendant has no ground for complaint of the decree in respect to the disposition of the fund. The only question with which the defendant is concerned is whether it was entitled to insist upon an interpleader. The defendant was not entitled to maintain a bill of interpleader unless it fairly appears that, without its fault, it is placed in a position where it is impossible to decide safely between adverse claimants. Bedell v. Hoffman, 2 Paige (N. Y.), 199; Michigan & Ohio Plaster Co. v. White, 44 Mich. 25.

In this case the record shows that by the express terms of the policy the defendant was entitled to withhold from the assured or his assignees the amount of any indebtedness to the company. This reservation of right was sufficiently broad to cover the amount due on this mortgage in the absence of any facts showing any right in equity on the part of an assignee to insist upon some other disposition of the fund. Nothing of that nature is averred or proved. On the contrary, the Yogles by payments of the premium have kept the policy in force from 1893 to the date of Shriner’s death; the later payments being made under what may well be called -an assurance that the policy would pay off the mortgage. See letter of May 3, 1901. The equities appear to be with complainant.

The decree is affirmed, with costs.

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


author: Blair, J.

text:
    HOPKINS v. GRAND RAPIDS & INDIANA RAILROAD CO.
    Railroads — Crossing Highways — Restoring Highway — Personal Injuries — Pleading — Variance— Immaterial Allegations.
    In an action against a railroad company for personal injuries caused by falling on a defective sidewalk crossing the right of way, the declaration alleged that defendant took up the plank sidewalk over its right of way and replaced the same with dirt, cinders, and gravel and left planks across at the rails which rose abruptly five inches above the level of the , dirt, etc., over which plaintiff stumbled, etc. Held, that the allegation that defendant took up the plank walk was immaterial, and that recovery might be had without showing who took it up.
    Error to Osceola; Rose, J.
    Submitted January 9, 1907.
    (Docket No. 5.)
    Decided March 5, 1907.
    Case by Mae Hopkins against the Grand Rapids & Indiana Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the Court, and plaintiff brings error.
    Reversed.

      Charles A. Withey, for appellant.

      T. J. O’Brien, M. Brown, and James H. Campbell, for appellee.
   Blair, J.

The declaration in this case, so far as necessary to be set forth, was as follows:

“ And whereas, also, said defendant being so engaged in operating and in control of said railroad and said public street being so open and in use in said village of Tustin and crossing defendant’s railroad and there having been for many years previous to the date stated above, a sidewalk maintained and in use on the north side of said street where it crossed defendant’s said railroad and right of way, it then and there became and was the duty of said defendant to refrain from tearing up and removing said sidewalk and the planks and timbers of which it was composed and built, and if by permission of said village of Tustin or otherwise, it, the said defendant, removed said sidewalk or any portion of it, it then and there became its duty to keep the surface of the way in the place where said sidewalk had been, in a reasonably fit and safe condition for public travel, and to refrain from placing obstruction therein or thereon, both of which duties the said defendant then and there neglected, and some time, to wit, one week before the said 7th day of August, 1904, at the place aforesaid, the said defendant tore up and removed that portion of said sidewalk on the north side of said Main or Church street west from the most westerly rail of its said track across its said right of way, to wit, fifty feet west from said most westerly rail, caused and permitted said sidewalk and the planks and timbers whereof it had been theretofore built and maintained, to remain torn up and away from their places, and replaced same with dirt, cinders and gravel, of a combination of all or either of them for a portion of the way, and for a space of, to wit, two feet next to said most westerly rail of its said railroad where it crossed the north sidewalk on said Main or Church street, west from said westerly rail created an obstruction and a nuisance by placing one or more planks next its said rail and west therefrom across the place where said sidewalk had formerly been and should have been, which plank or planks at the west edge thereof were raised, to wit, five inches above the surface of the dirt or cinders which the defendant had there placed as aforesaid, leaving an obstruction across said walk with an abrupt or nearly perpendicular raise from the surface of the dirt upwards of, to wit, five inches, and caused and suffered the same to remain in that condition for a long space of time, to wit, for one week or more from the time it was placed there until the said 7th day of August, 1904, and it then and there became the further duty of said defendant after it had torn up said walk or caused the same to be torn up, to replace the same with a uniform surface and free from abrupt depressions and unevenness and free from obstructions, and to so conduct itself and its business generally, and so rebuild and replace said sidewalk on the north side of said Main or Church street, where it crossed defendant’s right of way that it would be reasonably safe for travel both night and day, both in the dark and in the light, which duty the said defendant also neglected, and the said sidewalk at that point where it crossed said railroad, or a portion thereof, having been, removed by the said defendant prior to the said 7th day of August, 1904, it then and there carelessly in rebuilding the same, temporarily or otherwise, made and maintained from thence until said 7th day of August, an obstruction across said walk of planks or plank raised above the surface of the same and left by said defendant with a sharp, abrupt or perpendicular edge on the west side thereof to wit, five inches high, at a point, to wit, fourteen inches west of defendant’s said railroad track, whereupon the said plaintiff on the evening of the said 7th day of August, 1904, at the place first aforesaid and after dark on said day, was endeavoring to pass along said sidewalk on the north side of said Main or Church street, where it crossed defendant’s right of way and railroad track proper, in the ordinary and usual way and in the exercise of due care on her part, it being dark at that time and place, and there being no light to reveal the condition of things, she in so endeavoring to pass along said walk from the west, westward, caught her toe or foot upon' the aforesaid perpendicular or abrupt edge or side of said planks or upon said abrupt obstruction, and tripped or fell thereby, and was thrown with great force and violence eastward upon said walk and said railroad track.”

The proofs on the part of plaintiff tended to sustain the allegations of facts stated in the declaration except as to the allegation that defendant tore up and removed the sidewalk. As to the allegation last referred to, the proofs failed to disclose who tore up the sidewalk. At the close of plaintiff’s proofs, the circuit judge, on defendant’s motion, directed a verdict in favor of defendant, on the ground that the proofs did not sustain the case made by the declaration. Defendant’s counsel argue in support of the ruling of the circuit judge that:

“ All allegations of duty and negligence of the defendant are predicated upon the allegation that the defendant removed the sidewalk on the north side of Church street in the village of Tustin, west of the west end of the ties in th'e most westerly railroad track.
“ The plaintiff, if entitled to recover at all under the declaration in this case, can recover only upon proof of the fact that there was a sufficient sidewalk at the place named and that the defendant tore it up.”

The essence of the case, as stated in the declaration, was that, after the sidewalk had been removed, the defendant—

“ Replaced same with dirt, cinders, and gravel, or a combination of all or either of them for a portion of the way and for a space of, to ' wit, two feet next to said most westerly rail of its ' said railroad where it crossed the north sidewalk on said Main or Church street, west from said westerly rail created an obstruction and a nuisance by placing one or more planks next its said rail and west therefrom across the place where said sidewalk had formerly been and should have been, which plank or planks at the west edge thereof were raised, to wit, five inches above the surface of the dirt or cinders, which the defendant had there placed as aforesaid,” etc.

It was immaterial who took up the walk. After the walk was taken up, the defendant, according to the declaration and the proofs, undertook to replace the sidewalk with dirt, gravel, cinders, and boards. Having assumed this responsibility, it was liable for its negligent discharge. The plaintiff made a case for the jury under the declaration, and the trial court erred in directing a verdict.

The judgment is reversed, and a new trial granted.

McAlvay, O. J., and Grant, Ostrander, and Hooker, JJ., concurred.


text:
    MEECH v. CITIZENS’ INSURANCE CO. OF MISSOURI.
    1. Fire Insurance — Rersonal Property— Title — Warranty — Breach — Chattel Mortgage.
    Where a policy insuring personal property against loss by fire provides that it shall be void if the property become incumbered by chattel mortgage, the existence of a chattel mortgage upon the property, unknown to the insurer, defeats the policy.
    2. Chattel Mortgages — Duration of, Lien.
    Where a chattel mortgage is given to secure the mortgagee as an indorser of the grantor’s paper, it prima facie constitutes security for renewals of the paper until the whole amount is paid.
    3. Fire Insurance — Personal Property — Title — Warranty-Breach — Chattel Mortgage.
    Plaintiff executed a chattel mortgage to secure an indorser of his note and the note was later surrendered and a new one given, the understanding being that the original note was paid, though no agreement was made with respect to the mortgage. Subsequent to the exchange of notes plaintiff procured insurance on the chattels by a policy providing that it should be void if the property were incumbered by chattel mortgage. Held, that the policy was void, the mortgage standing prima facie as security for the entire debt until paid.
    Case made from Charlevoix; Mayne, J.
    Submitted January 9, 1907.
    (Docket No. 6.)
    Decided March 5, 1907.
    Assumpsit by Ezra F. Meech against the Citizens’ Insurance Company of Missouri on a policy of insurance. There was judgment for plaintiff, and defendant appeals.
    Reversed.

      George E. Nichols, for appellant.

      A. B, Nicholas, for appellee.
   Montgomery, J.

This is an action on a policy of insurance covering hotel furniture, fixtures, etc., insured on the 7th of October, 1902, and burned November 7th of the same year. The defense was based upon an alleged violation of the terms of the policy, which provides:

‘ ‘ This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not stated truly herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. * * * Or if the subject of insurance be personal property, and be or become incumbered by chattel mortgage.”

It was claimed that both at the date of the policy and at the time of the fire there was a subsisting valid bill of sale in the nature of a mortgage in force covering the property insured.

The case was tried before the circuit judge without a jury. There was a special finding of facts and law which, so far as they relate to the special defense relied upon, read as follows:

“March 4, 1902, plaintiff obtained from the State Bank of Petoskey a loan of $500, giving therefor his note due in six months. One Walter L. French signed this noteas joint maker. To secure French from loss in case he had to pay this note, plaintiff executed to him a chattel mortgage or bill of sale to have the force and effect of a chattel mortgage. This instrument was duly filed in the office of the township clerk of South Arm township, in which Meech resided, and the property was situated. September 20, 1902, Meech paid cash upon' this note $17.50. October 1, 1902, another note was executed and delivered to the bank by Meech and French in the sum of $325, bearing date September 17, 1902, due six months from that date, and the first note canceled and marked ‘paid,’ and delivered by the bank to Meech, the original note having been in part paid in cash.
“ At the time of the delivery to the bank of this second note Mr. Chichester, cashier of the bank, held title to certain real estate upon which the State Bank had a mortgage, and in which land Meech had an equity, and it was agreed in writing between Mr. Chichester, Mr. Meech, and Mr. French that Mr. Chichester should proceed to realize upon this real estate, pay the mortgage to the bank, and credit the surplus arising from the sale upon this note. It was understood between the parties at this time that the equity in this real estate was sufficient to meet the new note. The real estate was not sold, and May 21, 1903, Meech and French executed another note in the sum of $340.42; this amount representing'the amount then due upon the $325 note of September 17, 1902, Meech having reduced the amount by payment upon the note. This last note was delivered to the bank to Mr. Chichester, and the note of September 17, 1902, canceled, marked ‘paid,’ and delivered to Mr. Meech.
“At this time a second agreement relative to the equity in the real estate similar to the first agreement was made and given to Mr. Chichester February 2, 1904, another note was delivered by Meech and French to Mr. Chichester bearing date of December 19j 1902, and the note of May 21, 1903, canceled, marked ‘ paid,’ and delivered to Mr. Meech.
“ This last note at the time of the trial was not paid, but was held by the bank. The chattel mortgage given by Meech to French has never been discharged of record, and no agreement made in relation thereto, but both Meech and French understood that the giving of the note of $325 to the bank on October 1, 1902, but dated September 17, 1902, and the cancellation by the bank of the original note and its delivery to Meech rendered the original mortgage of no further force or effect, the same as though the original note had been paid in cash. Application for the insurance was not in writing. About the time of the fire defendant attempted to cancel its policy, but it is admitted that the effort proved ineffectual, and the policy remained in force. After the loss by fire 'defendant learned the facts concerning the chattel mortgage. The existence of the chattel mortgage is not assigned as a reason for the defendant’s action in attempting to cancel the policy.
“ The fire was accidental, and there was no fraud on the part of Meech in securing the policy or in making proofs of loss, and no intentional concealment of the existence of the chattel mortgage.
“ Law.
‘ ‘ Both Meech and French may have been mistaken as to the legal effect upon the chattel mortgage of the giving of the note and security of October 1, 1902, but their conduct as well as testimony shows that they considered the chattel mortgage as of no further force or effect. The agreement that Meech’s equity in the real. estate should continue to constitute French’s security for his indorsement is shown by the fact that a new agreement was made concerning the same upon the delivery of the note bearing date of May 21, 1903. The parties to the chattel mortgage believing it discharged, by operation of law, Mr. Meech, in the absence of any distinct misrepresentation, committed no fraud in failing to apprise the insurance company of the existence of the chattel mortgage, either at the time of the taking out of the policy, or in his proof of loss. Even had Meech made the statement that there was no incumbrance it would not have voided the policy.”

The defendant’s counsel proposed amendments based upon the claim that the evidence showed conclusively that the new security was given in May, 1903, long after the fire occurred, instead of October 1, 1902. There is testimony which tends to support the claim that May, 1903, was the true date of the transaction, but we are not satisfied that this testimony was conclusive or that there was no testimony fixing the date as October 1, 1902. This leads to a consideration of the question: Does the finding of facts as made support the conclusions of law ? It is settled by our decisions that, under a policy such as that here involved, the existence of a mortgage upon the property covered by the insurance, unknown to the insurer, defeats the policy. Wierengo v. Insurance Co., 98 Mich. 621; Wyandotte Brewing Co. v. Insurance Co., 144 Mich. 440. The finding shows a valid chattel mortgage, given March 4, 1902, to secure French as an indorser. Prima facie this constituted security for renewals of the note until the whole amount was paid. Packard v. Kingman, 11 Iowa, 219; Smith v. Prince, 14 Conn. 472; Cullum v. Branch Bank at Mobile, 23 Ala. 797. The finding does not state facts which negative this presumption as a matter of fact. On the contrary, the finding is that no agreement was made in relation thereto. It is true the finding states that both parties understood that the giving of the note of September 17th, and the cancellation of the original note, rendered the original note of no further force or effect, but this is rather a statement of the construction which the parties placed upon their legal rights than a statement of fact. That this is not a technical construction of the language is made manifest by the finding of law by the circuit judge, which indicates that this is what he intended the finding to mean. We think the finding does not support the judgment, and that, under the rule laid down in Wyandotte Brewing Co. v. Insurance Co., supra, there was error in the finding of law. We do not hold that the agreement for the acceptance of the second security may not have been in terms which would exclude the idea of a continuance of the security of the bill of sale. If such was the fact, however, it was not found or made the basis of the judgment.

The case is not so clear as to justify entering final judgment for defendant in this court. The judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


text:
    LEACH v. GRUBE.
    1. Mortgages — Bill to Redeem — Mortgagee in Possession-Evidence.
    On. a bill to redeem against one in possession who had taken the legal title from complainant’s vendor, evidence examined, and held, to show that under the original arrangement complainant reserved a substantial interest in the property, and that title was taken in defendant’s name as security for the purchase price advanced by him on taking the title.
    2. Sams — Relief Awarded.
    Where complainant surrendered possession of mortgaged land upon an unauthorized promise by the mortgagee’s agent to pay him a certain sum for his equity, complainant, on a bill to redeem, is not entitled to a lien for the sum promised, but defendant should have an option of discharging complainant’s claim by paying the sum, or of an accounting and sale to satisfy defendant’s lien, unless complainant shall redeem therefrom.
    Appeal from Van'Buren; Des Voignes, J.
    Submitted January 9, 1907.
    (Docket No. 13.)
    Decided March 5, 1907.
    Bill by Bert Leach against Henry A. Grube to redeem or establish a lien on land. From a decree for complainant, defendant appeals.
    Modified.

      W. G. Bessey ( Cook & Chandler, of counsel), for complainant.

      A. Lynn Free and W. W. Holmes, for defendant. -
   Montgomery, J.

This controversy concerns a parcel of land and house in the city of South Haven. In May, 1903, the legal title to the property stood in Walter E. Trude. Elizabeth Clark held a mortgage upon the property of |500, and complainant held a contract to purchase Trude’s equity at the price of $400. Complainant applied to the defendant, Gruhe, for a loan to enable him to pay up the contract. Defendant, who is a brother-in-law of complainant, and who resides at West Brooklyn, 111., came with complainant to South Haven, and, after an examination of the premises, advanced the $400, took a deed from Trude to himself, and gave back to complainant a writing in the following terms:

“South Haven, Michigan, May 7, 1903.
“This certifies that I have this day appointed Bertie M. Leach, of Kibbie, Michigan, my agent to rent or sell property this day conveyed to me by Emma Trude and Walter Trude, located at the junction of Broadway and Phillips streets in the city of South Haven, Michigan, and I agree to ratify any contract of sale or rent made by the said Bert M. Leach for said property — in the event of sale to make a deed to the purchasers — and I further authorize the said Bert M. Leach to sign any contract of sale for said premises in my name — or I will convey said property to Bert M. Leach upon payment of $400 with interest at six per cent, from this date and other money paid out from this date for taxes, etc.
“Witness my hand and seal the day and year first above written.
“ Henry A. Grube. [Seal.]”

At the expiration of one year defendant obtained possession of the property; and, upon his refusal to recognize any right of complainant in the premises, this bill was filed to redeem, or to require defendant to pay to complainant $300 for his interest in the property. From a decree in favor of complainant defendant appeals.

The defendant takes the ground that the instrument above set out is merely a certificate of agency, with an option to purchase within a time fixed by oral agreement at one year. The complainant contends that the understanding was that the advance of $400 was a loan, and that the instrument given back was without limit as to time, and that neither by the writing nor by the oral agreement was time treated as of the essence of the contract. We are convinced that both parties understood that the complainant retained a valuable interest in the property. This is evidenced by defendant’s letters demanding interest upon the $400 from complainant. During the year complainant made expenditures in the way of repairs, taxes, and interest amounting to about $100. Promptly, on the expiration of one year, indeed, before a full year had expired, defendant demanded to have the contract canceled, and a little later sent an agent, Ballard, to take possession, writing to complainant in advance making a second demand for interest, and cautioning complainant against making any arrangements before seeing defendant or “his man.” He had previously and before the year had expired written complainant:

“ Don’t get that man Gill interested again and then have me help you out again; if you do on this, I shall commence a suit on you at Paw Paw circuit court to annul said contract. Now, take warning.”

The circuit judge found that, when Ballard came on, he agreed with complainant that he would take possession for defendant, and that, if complainant would surrender possession, defendant would give complainant $300 for his interest. There can be little doubt on this record that both parties understood that under the original arrangement complainant reserved a substantial interest in this property, and that the title was taken in defendant’s name as security.

Upon the question of whether Ballard made the agreement to pay complainant $300 at the time of the surrender the testimony is conflicting. The circuit judge who saw the witnesses gave credence to the testimony of complainant, basing his conclusions in part upon the manner of the witness Ballard. If the question were more doubtful, we should, giving due weight to the opinion of the circuit judge, and having in view his better opportunities to determine the credibility of witnesses, still incline to accept his conclusions as to this question; but an independent examination of the testimony leads us to the same result. The testimony fails to show that Ballard had authority to promise the complainant $300. It is evident, however, that the complainant never surrendered his rights on any other terms, and that he would but for this elusive promise have been able to redeem.

The circuit judge decreed a lien in complainant’s favor of $300. This is not technically the decree to which complainant is entitled. The decree will be modified to the extent of giving the defendant an option of discharging complainant’s claim by a payment of $300 and interest,. or of an accounting and sale to satisfy defendant’sjien, unless complainant shall redeem therefrom. Neither party will recover costs in this court.

McAlvay, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    BAUER v LONG.
    1. Mechanics’ Liens — Property Subject — Estates by Entire-ties.
    A mechanics’ lien cannot be created against land held by husband and wife as tenants by the entireties by services performed pursuant to a contract in which the wife does not join. (Sections 10710,10711, 3 Comp. Laws.)
    2. Same — Lien on Building Separate prom Land.
    Section 10712, 3 Comp Laws, providing for a lien on a building erected upon lands of which the contracting owner has not title, does not apply to a building erected upon land owned by the owner and his wife as tenants by the entirety.
    3. Same — Husband’s Interest
    A husband owning land with his wife in entirety has no interest therein, or right of possession during his lifetime, to which a lien can attach under any contract not signed by the wife.

      Appeal from Jackson; Parkinson, J.
    Submitted January 10, 1907.
    (Docket No. 7.)
    Decided March 5, 1907.
    Bill by Christian M. Bauer against William S. Long, Ella Long, and the Laboring Men’s Building & Loan Association to establish and foreclose a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal.
    Reversed, and bill dismissed.
    This is a suit in equity to establish and foreclose a mechanic’s lien. The bill alleges that complainant made a contract with defendant William S. Long to erect a dwelling house upon the land owned by the defendants William S. and Ella Long, who are husband and wife, as tenants by the entirety; that the contract price was $2,953, that the contract has been performed, and that $296.48 remains unpaid. The bill also sets forth that he had taken the proceedings required by the statute to establish the lien. The bill prays for a lien upon the premises for the amount due under the contract. To this bill the defendants demurred, because (1) the bill shows that the title to the land was held by the defendants Long as tenants by the entirety; (2) that the defendant Ella did not join in the contract; and (3) that the property is a homestead, occupied and used as such. The court overruled the demurrer, and the case is before us on appeal.

      John F. Henigan, for complainant.

      George H. Curtis, for defendants.
   Grant, J.

(after stating the facts). The main question presented is, Does the statute provide for a mechanic’s lien upon land owned by the husband and wife as tenants by the entirety under a contract signed only by the husband ? Section 10710, 3 Comp. Laws, being section 1 of the mechanic’s lien law, provides for mechanics’ liens. It contemplates a lien where the land is owned by the party for whom the work is done or the materials are furnished. Section 10711, 3 Comp. Laws, being section 2 of the mechanic’s lien law, provides for such a lien upon land owned jointly by husband and wife, provided both sign the contract. Mechanics’ liens are pure creatures of the statute. Courts cannot extend them to cover cases not included in the statute. The bill shows that complainant knew how the title was held; that the building was to be so constructed that it became a part of the realty, and could not be removed after its erection, without injury to the freehold, and that he has so constructed it. His bill is framed upon that theory, for it does not pray for .a lien upon the building separate and apart from the land on which it is situated. This court has repeatedly held that one tenant by the entirety has no interest separable from that of the other. He has nothing to convey or mortgage or to which he can attach a lien. Michigan Beef & Provision Co. v. Coll, 116 Mich. 261, and authorities there cited.

In view of this condition of the law, and to protect the rights of each, the legislature enacted that this lien might attach if the lienor secured the written contract of the husband and wife. To hold that either might contract for a lien without the assent of the other would be clear judicial legislation. The complainant seems to concede that he has no lien upon the land, but claims the right to a lien upon the dwelling house, and to sell and remove it under his lien proceeding. This case does not fall within' section 10712, 3 Comp. Laws, providing for a lien upon the building if the building is upon lands “to which the person contracting for such erection has no legal title,” or within the decision of Holliday v. Mathewson, 146 Mich. 336. In that case the house was erected upon land to which the defendants at the time of its erection held no title. It is conceded that this question is before the court for the first time. We are cited to no authorities in point. My examination has resulted in finding one case, which holds that the lien attaches to the life estate of the husband. Washburn v. Burns, 34 N. J. Law, 18. The court there held that the husband during his life was entitled to the possession and use of the lands, and that he could attach a lien to his life interest, but no other. That case is inconsistent with the holdings of this court. •

The decree must be reversed, and the bill dismissed, with the costs of both courts.

McAlvay, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    DETROIT, PLYMOUTH & NORTHVILLE RAILWAY CO. v. HARTZ.
    1. Specific Performance — Contract to Convey — Evidence.
    On a bill to enforce specific performance of a contract to convey right of way to a street-railroad company, evidence examined, and held, not to show that defendant ever agreed to convey the right of way, but that complainant occupied under a parol license revocable at will.

      2, Statute of Frauds — Sale of Land — Authority of Agent— Necessity of Writing.
    A written contract for the sale of land entered into by an agent without written authority is void unless ratified or adopted by the principal. Section 9509, 3 Comp. Laws.
    Appeal from Wayne; Mandell, J.
    Submitted January 10, 1907.
    (Docket No. 16.)
    Decided March 5, 1907.
    Bill by the Detroit, Plymouth & Northville Railway Company against John C. Hartz to restrain the prosecution of an action of ejectment, and for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      C. C. Terkes, for complainant.
    Keena, Lightner & Oxtoby, for defendant.
   Blair, J.

The bill of complaint in this suit was filed to enjoin further proceedings in an ejectment suit instituted by defendant to obtain possession of certain lands occupied by complainant, and for the specific performance of an alleged contract to convey a right of way over said lands made by Della Holcomb, one of defendant’s .predecessors in title.

The bill of complaint alleges that on July 1, 1898,—

“ Said Della W. Holcomb was strongly desirous of inducing your orator to construct in or along the said highway, known as the ‘Plymouth Plank Road,’ its electric street railway, believing that such construction and its subsequent operation would furnish convenient transportation for freight and passengers from said mill and residence property to Plymouth, Northville, and other points, and consequently enhance the value of her said property.
‘ ‘ That in consideration of the conveniences to be acquired by the construction of the said street railway along said property in its present location, and the consequent enhanced value of her said property, the said Holcomb agreed with your orator to convey or release to your orator a right of way across said property over the land upon which said railway was afterwards constructed and has ever since been operated; that said Holcomb pointed out to your orator the land which should be occupied by it and was from time to time by herself and agents present while the line of said road was being surveyed and the road itself being constructed on and across said premises, and that such occupancy and construction by your orator was at all times with the knowledge, acquiescence, and direction of said Holcomb.
“ That immediately after such consent and agreement was made, as is mentioned in the last preceding section, your orator proceeded to lay out and construct its trestle and bridge across the outlet of said millpond at a great expense, to wit, at a cost of $5,000 and upwards; that said bridge was so constructed by it in reliance upon the consent, acquiescence and agreement of said Holcomb on the said lands which were before the construction of said bridge by your orator of little value to it, but by the construction of such bridge has become of great value, to wit, of the value of $1,000 and upwards.
“That since the construction of said bridge by your orator the said street railway has been in continuous 'operation and is now in operation by your orator along and over said bridge, yet, although your orator has performed and executed its agreements in the construction and operation of said railway, yet the said Holcomb has failed, neglected, and refused to convey to your orator a release or right of way of the said lands so occupied by your orator as agreed upon as hereinbefore set forth.”

Della Holcomb acquired her title to the property in question by warranty deed from her husband, Henry W. Holcomb, executed January 15, 1898. October 25, 1898, Della Holcomb conveyed the property by warranty deed to Frank T. Norris, and on November 24, 1900, Norris deeded to defendant, Hartz. All of the negotiations on the part of Della Holcomb in question in this suit were conducted by Henry W. Holcomb as her agent, but without written authority from her. The only testimony in the record as to any interviews with Mrs. Holcomb is that of Mr. Russell, the vice president and manager of complainant, as follows:

Q. When you had these talks with Mr. Holcomb, did you see Mrs. Holcomb at any time ?
“A. I saw Mrs. Holcomb two or three times during the entire work there when I would be calling for Mr. Holcomb, and on one occasion I went and saw her to see about this location of the track in front of his place, and she referred me to him, saying that he had had no conversation with her on the subject.
“ Q. You understood that he was acting as her agent ?
“A. I was referred to him by her.”

Complainant’s testimony as to the alleged agreement was given by Mr. Russell and Mr. Waldo, who represented complainant in the location and construction of the road. The substance of their testimony is that they were considering two routes for the railway near the Holcomb property, and that Holcomb was very anxious that they should construct the railway along the plank road in front of his property because of the increase in value of the property and particularly the mill, and that Holcomb claimed title to the lands included by his fences by adverse possession, but the witnesses considered the fences to be in the highway and subject to removal.

Russell testified:

“ There was considerable conflict about where the property lines lay. Mr. Holcomb owned the icehouse, which was filled with ice, and it was desirable to get it out of the way. About 16 feet of it was in the way, and the company agreed with him and paid him $200 if he would not prevent us from taking it down. Our men took it down and destroyed it. No money was paid for the land south of the stream. We had many conversations in which he sought to induce the location of the railroad on the Plymouth & Northville plank road, instead of on the Bradner or easterly road, and until our bridge was built no question of money came between us at all, and then only in reference to the icehouse. North and south of the river or millpond the railroad was located upon the public highway. He said he had property facing the Plymouth & Northville road which he wished to subdivide and build up, and he said the railroad would bring it into the market. He was desirous to have us pass the mill property so that he could get'a spur into the property to facilitate business. In consideration of these benefits, he agreed to facilitate the building of the road. Prom our standpoint he did not have anything to do with the right of way. Our notion then was we were running in the highway. There were places in his property that were not in the highway, and we moved back his fences with his consent. He made a plat of the property along the road, and told me that he sold one or two lots out of it, one on which a house was built, and another.
Q. Was there any talk before you assumed possession or took possession; and before you constructed your road was there any talk with reference to his executing any papers with regard to this right of way ?
“A. The first time that he held us up for $200 I suggested that he should make us a quitclaim deed, and he explained to me then that the property was in the name of his wife, and that he was contemplating going through bankruptcy proceedings at the time, and that later he would provide for it.
‘ ‘ Q. Before you took possession at all was there talk about releasing the right of way ?
“A. I would not be positive on that; I think there was about the time we negotiated for the icehouse.
Q. After the road was constructed, did you go to him with reference to a release of this right of way ?
“A. Yes; I asked him once for such a paper and was put off.
Q. What did he say then ?
“A. I think he delayed for some reason which I forget.
Q. Did he refuse to make it ?
“A. No, sir.
‘ ‘ Q. Did he make any reply that you remember as to the delay ?
“A. My impression is that his wife was away or something like that at the time. * * *
Q. With reference to the land that he consented to your occupying it, where was the road built ?
“A. Upon the exact location agreed to by Mr. Holcomb.
“ Q. What did you give him for the use of that land ? What was he to receive for its use?
“A. Nothing except the presence of the road, which he had been seeking for years. * * *
Q. How long before August or September, 1899, was your first interview with Mr. Holcomb ?
“A. I had been meeting him for the better part of that year, off and on; that is, for the year 1899. I think the matter had not arisen between me and Mr. Holcomb previous to January, 1899. In building the stretch from Wayne to Northville the company negotiated with probably 15 property owners in all. We got a paper signed from them. * * *
Q. Now, you had some sort of a permit from the owners of the other 14 pieces ?
“A. In some cases we had leases and in other cases we had quitclaim deeds; but generally quitclaim deeds.
Q. And this piece in here for 800 feet is the only place in which private property has come into question in which you did not have some sort of a writing ?
“A. We did not have any question that that was private property.
“ Q. This is the only piece which there seems to be some question now in which you did not have some writing?
“A. I think so. * * *
Q. You regarded the approach across the outlet— that bridge there, which you constructed at an expense of $3,000 — your understanding was that that was in the highway ? * * *
“A. Yes, sir.
“Q. And you acted under those ideas that we have given, that along this whole strip Mr. Holcomb was not giving you anything except what belonged to the highway ?
“A. Yes, sir.
“Q. And, of course, under those circumstances you did not bargain as to whether he should give you any quitclaim or anything of the kind ?
“A. When the matter came up later, I was advised that we should get a quitclaim deed from him, lest he might try to hold us up later.
“Q. He said that he would give you some paper, but that he was going through bankruptcy ?
“A. Yes; that is what I understood.
“Q. What else did he say ?
‘A. He said that the property was in the name of his wife temporarily, and when he got it out he would give us a quitclaim deed.
“Q. You knew at that time that it was in the name of his wife ?
“A. Yes, sir. * * .* There were no promises made at any time to Mr. Holcomb as to what the railroad company might do. If any were made by others than myself, it was without authority, because no such promise or consideration could be given by the railroad company without my approval.”

Waldo testified:

“Q. What did Mr. Holcomb sayas to your having a right of way there ?
“A. Why, as I understood the discussion, if we ran down by the mill, and put in a spur track when the line was complete, it would be entirely satisfactory, and he would move back his fences. * * * The whole outfit south of the pond was discussed by Mr. Holcomb and I. North of that I think Mr. Russell did the negotiation. South of that point w® discussed it.
“Q. That is from what point?
“A. The spur would come up south of the pond to reach the mill. We wanted a permanent affair. Practically, if we would have the road located there, that is the compensation that he would 'get for his property. He first objected to moving his fence back from the Bradner road to his south line. * * * It was finally decided to allow us to move it back to where it was placed.
“Q. Decided by whom ?
‘A. By Mr. Holcomb and I; that we should put it in upon his request, a siding or spur to reach his mill door.
“Q. I understood, Mr. Waldo, that between the Bradner road and this point that you and Mr. Holcomb joined in the selection of the right of way, was there any fence there ?
“A. No, sir.
“ Q. What did you say as to the length of time that the railroad company should occupy this land ?
“M. I don’t remember anything; his general position was that the railroad would occupy it under the terms of its franchise.
The Court: I will exclude that.
Q. What, if anything, was said by him with reference to releasing this right of way later on ?
“A. Nothing to me that I can recollect. He took it for granted that this land belonged to him by adverse possession, and I considered him an obstructor there, and that the highway commissioner should move his fences back. We did not want any difficulty, and we arranged it amicably as we did. Didn’t have any unkind words during the discussion.
Q. What did you say to him as to reason why he should give you the right of way ?
“A. Why, I did not understand at anytime in the discussion that he was giving us a right of way outside of what was the highway originally. If the fences had been moved back to their proper line, that would give us ample road. He conceded that we should build the road, and we agreed to put in the spur. * * * I took the ground all the time that the highway commissioner had the right to tear his fences down and get it out of the road, and that we could build the road where it was located. But we didn’t want difficulty, and we finally settled the matter by the decision that we might move the fence back on the line where it is if we should build a road and put in a spur to his mill.
Q. Then the road was built and the fence moved back by his consent ?
“A. Yes, sir. * * *
Q. Did you consider that north of the Bradner road the road included the whole strip where your track was going ?
A. Yes, sir.
Q. And, so that is the reason why you did not have any more definite arrangements with Mr. Holcomb ?
“A. Yes, sir.
“ Q. You did not think it was necessary ?
“A. No, sir. * * *
Q. Did you make any promises on behalf of the railroad company to Mr. Holcomb with regard to that track ?
“A. Yes, sir.
Q. Now, that was in consideration of what ?
"A. The settlement of this matter.
“ Q. Of the whole matter?
“A. Yes, sir.
Q. And that consideration was what ?
“i, The moving of the fence back on the line and the rebuilding of it south of the Bradner road, and after the road was completed within a reasonable time, when he requested it, we should put in a side track to the mill.”

Henry W. Holcomb testified:

“ The talk about the icehouse was after the time that the fences were moved back from here to the south. I think Mr. Waldo first talked with me about wanting the fences moved south of the Bradner road. * * *
Q. What was the agreement between yon ?
“A. He said that he would move my fence back. I didn’t say much, but he was to move my fences back without any cost to me, put a drain along the road, and connect with the present drain that was there then; also there were matters about crossing in the fields so I could get to my crops. That was the substance.
Q. Was anything said about a spur track ?"
A. They said they would put in a spur track. * * * There was nothing said to me with reference to giving a quitclaim deed. I don’t know, but they did talk of a writing. I refused. I said, ‘No; I will not deed anything. You can go there if you like, but I will not sign any writing.’ And I never did. A writing was brought to me to be executed to have me sell or give permission for that use. I objected to giving them any deed or anything of that sort. I didn’t know what kind of service we would have, and I didn’t want to get into litigation over such things. I thought it was not necessary as long as I gave them the right there. I gave them my consent. No time was mentioned, of course. * * * Except for the money agreed upon to compensate me for the destruction of a part of the icehouse, there was no consideration of any kind paid to me or Mrs. Holcomb for the laying of this track where it is. * * * So far as this property was concerned and the other real estate in her name, I was acting as her agent. * * *
Q- _ What was the talk generally by you as to whether in talking you were talking for your wife ?
“A. Yes, sir; at that time I was acting as her agent. * * * _ The principal thing with me, I wanted the road to run direct, and incidentally it would help my mill. It would run in front of it.
Q. And they would put a spur track in there ?
“A. They promised to do it.
“ Q. Have you asked them for a spur ?
“A. I never did ask them to my knowledge. * * * I regarded it as desirable to have a spur to the road. I was shipping flour and some wheat in and out, and I wanted it for that purpose.
‘ ‘ Q. And it was worth money to you ?
“A. Yes; no question about it.
Q. Worth quite a little ?
UA. Yes. * * * Before the road was built I know where it was to be built.
Q. And you told him that they could have the right of way ?
“A. I told him that they could go along there; I never objected to it.
Q. You told them that they might have the right of way?
“A. Whatever you call it.
Q. Did you tell them that they could have the right of way where you knew that they were going ?
“A. I don’t think they ever put it in those words. I told them that they could locate it and use where they did.
Q. You knew that they were an incorporated railway ?
“A. I did not know that; no, sir. I supposed it. No part of the money paid to replace the icehouse went to pay for the right of way — not a cent. After the road got north of the bridge I knew where it was going. They moved it there at my suggestion. They had to deflect it a little to the west. * * * Nothing was said about how long they would stay there. It was implied that they would stay there. I cannot say how long that implication ran for. I did not calculate that I would ever want to put them off. I did not think there would be any necessity.
Q. Did you lead Mr. Waldo or Mr. Russell to believe that you never intended to put them off ?
“A. Nothing was said about it. * * * I told the facts about this property to Mr. McAllister, who acted for Mr. Hartz, to whom I sold the property. I represented to him that the road was a tenant at will merely. I didn’t say they had no substantial rights. I don’t know anything about that. I told them that I had never received any pay and never had signed any paper. I did not tell them that they could be put off at any time. I did not know that, and I don’t know it now. * * * I told McAllister substantially what I have testified to here.”

The circuit judge held:

Complainant occupied and used the lands in question under a parol license that contained no terms as to the life of the franchise. It remains only to determine whether such a license is revocable at will, or whether a court of equity should read into the license something that was not discussed by the parties thereto at the time the license was granted. It seems to me that this case is ruled by Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4.

Decree was entered dismissing the bill of complaint, from which decree complainant has appealed to this court. Counsel for appellant contends that complainant was entitled to relief upon two grounds:

First. Upon an oral contract for the conveyance of a right of way over the land in question upon a valid consideration, which contract has been substantially performed on the part of the complainant herein by the expenditure of large sums of money in the construction of an electric railway and its subsequent operation.
‘ ‘ Second. Upon a voluntary dedication of the land in question to the uses of the public based upon a valuable consideration. ”

We agree with the circuit court that the complainant has not shown by a preponderance of the evidence any promise in behalf of Mrs. Holcomb to execute a conveyance or any writing whatever. Mr. Holcomb denies that any such agreement was made, and Mr. Russell would not say that there was any such arrangement before the company took possession of the land; and his testimony indicates that the talk about a deed or release was after the bridge had been built. The testimony of Russell and Waldo clearly shows that in their minds it was unnecessary to have any such agreement, and makes it probable that Mr. Holcomb’s testimony is true. The conclusion of the circuit judge was therefore correct upon the ground assigned by him, and, we think, for another reason.

Mr. Holcomb had no authority to make such an agreement as claimed by complainant. He could only represent his wife as her agent under written authprity from her. Even if Mr. Holcomb had executed as agent a written contract with complainant covering every point, such contract would have been void as to Mrs. Holcomb, unless afterwards ratified or adopted by her. Section 9509, 3 Comp. Laws; Powell v. Conant, 33 Mich. 398; Colgrove v. Solomon, 34 Mich. 494; Dickinson v. Wright, 56 Mich. 42. There is no evidence in the record that Mrs. Holcomb knew anything about the details of the negotiations, or what agreement was finally made by her husband. Mr. Russell testified that in the only talk he had with Mrs. Holcomb she tdld him that her husband had had no conversation with her on the subject, and, so far as this record discloses, there has been no oral contract made with, known to, or recognized by, her.

The decree is affirmed, with costs to defendant.

McAlvay, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


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    McINTYRE v. McINTYRE.
    Escrows — Performance of Condition — Death of Grantor — Effect.
    Where a deed was deposited in escrow, to be delivered when the grantee should deposit a mortgage on the land deeded, and the grantor died before the grantee performed the condition, the deed was void, and the grantee could not validate it by performance after the grantor’s death.
    Appeal from Lapeer; Smith, J.
    Submitted January 10, 1907.
    (Docket No. 18.)
    Decided March 5, 1907.
    Bill by Edward L. Me Intyre and others against Marion M. McIntyre and others to set aside a deed and bill of sale. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Geer, Williams & Halpin, for complainants.

      Stickney & Reed, for defendants.
   Montgomery, J.

The complainants and defendants, including Rosaltha McIntyre (an incompetent) and Elizabeth McIntyre (the widow), are the'sole heirs of John B. McIntyre, who died intestate October 25, 1903. The bill was filed to set aside a deed of real estate, and a bill of sale of personal property made October 10, 1903, by John B. McIntyre, who died October 25, 1903, to his son Marion McIntyre.

The principal contention of the complainants is that the deed and bill of sale are void, for the reason that there was no legal delivery of the deed or bill of sale. It is alleged by defendants’ answer, and claimed by their proofs, that on October 10, 1903, A. B Markham, an attorney from Mayville, went to John B. McIntyre’s residence and prepared the deed and' bill of sale in question, which were deposited in Markham’s hands, to be delivered to Marion McIntyre when he should have executed a mortgage on the land conveyed to secure the payment by him of an annuity of $175 to John B. McIntyre and his wife, Elizabeth McIntyre, during their lives, and the life of the survivor of them. It is claimed that Marion had orally agreed to give the mortgage and the contract for the annuity in consideration of the deed and bill of sale to him; but it is admitted he had signed no writing of any kind binding him to do so. After making the deposit of the deed and bill of sale with Markham, to be delivered when the security should be given by Marion, nothing further was’ done by any of the parties until after the death of John B. McIntyre. After the funeral, and on October 29th, Marion and his wife executed a mortgage on the home 160 acres running to Elizabeth McIntyre to secure an annuity contract to her, and the deed and bill of sale were then delivered by Markham to Marion. Complainants contend that these facts do not show such a delivery as would give validity to the deed and bill of sale. It is also claimed that John B. McIntyre was on October 10, 1903, mentally incompetent, but we need not discuss this question. The decision may be kept within narrow limits.

The general rule is that a deed delivered to a third person to be by him delivered to the grantee upon the happening of some event in the future, which may or may not happen, does not pass the title to the land until such event occurs, and then only from that time. Campbell v. Thomas, 42 Wis. 437; Taft v. Taft, 59 Mich. 185. If, as contended, there may be exceptional cases in which, upon the intervening death of the grantor, the deed may, on the subsequent happening' of the event named as a condition, take effect by relation as of the date of its first delivery, this doctrine of relation cannot be applied in a case where the death of the grantor renders the performance of the condition impossible. Taft v. Taft, 59 Mich. 194, 196. In this case the deed and bill of sale could not take effect until a mortgage conditioned for the payment of an annuity to the grantor should be executed. This was as important as the condition to support the grantor’s wife. When John B. McIntyre died it became impossible to perfect the incomplete agreement. To apply the doctrine of relation to such a case would result in a manifest inequity.

The case presented is clearly one of a failure to complete the contract by reason of the death of one of the parties to it, whose support during life constituted in part the consideration upon which the binding contract was to Test. The decree is reversed, and a decree in accordance with the prayer of the bill will be entered, with costs of both courts.

McAlvay, C. J., and Grant, Blair, and Ostrander, JJ., concurred.


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    JESKE v. JESKE.
    Divorce — Alimony—Property Rights — Estate bY Entirety. Under section 8640, 3 Comp. Laws, on granting a divorce, real estate held by the parties as tenants by the entirety may be divided.
    Appeal from Wayne; Brooke, J.
    Submitted January 16, 1907.
    (Docket No. 44.)
    Decided March 5, 1907.
    Bill by Augusta Jeske against Emil Jeske for a divorce. From the decree rendered, complainant appeals.
    Affirmed.
    Complainant obtained a decree of divorce on July 11, 1905, from the defendant, on the ground of extreme cruelty. He was at the time 55 years of age. They were married in November, 1874. They had six children-, their ages ranging from 8 to 29 years. Two were minors, aged 8 and 12. The sole property of the defendant was the household goods, a small stock of groceries, and some lands which he and his wife held as tenants by the entirety. The court decreed the complainant, in lieu of a money allowance for alimony, all the household goods and personal property, and that the real estate should be divided equally between them. From this decree the complainant has appealed.

      William Look, for complainant.

      Goodson & Houck, for defendant.
   Grant, J.

(after stating the facts). Counsel for the complainant insists that an estate by the entirety is not affected by a decree of divorce, citing Lewis’ Appeal, 85 Mich. 340. After that decision was rendered, the legislature amended section 27 of the divorce law, by providing that:

“ The court in lieu of a money allowance may decree such a division between the husband and wife of the real and personal estate of the husband, or of the husband and wife by joint ownership or right as he shall deem to be equitable and just.” 3 Comp. Laws, § 8640.

Complainant and defendant by the common law are ten ants by the entirety, and no act of either could affect the right or interest of the other. The statute was undoubtedly enacted to meet cases like the present. It changes the common law to the extent of holding that courts of equity may, in divorce proceedings, provide for such division of the property as is equitable. By the decree the complainant obtains all the personalty and half of the real estate with which to support herself and her two minor children. We think this division of the property a just one, and such as was authorized by the statute.

The decree is affirmed. No costs will be allowed.

McAlvay, C. J., and Carpenter, Hooker, and Moore, JJ., concurred.


author: Carpenter, J.

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    BATDORF v. DYKSTRA.
    Mortgages— Foreclosure — Exchange op Property — Fraud— Evidence.
    On a bill to foreclose a mortgage given as part consideration for an exchange of property, evidence examined, and held, that defendant’s allegations of fraud in the transaction were not sustained.
    Appeal from Kent; Perkins, J.
    Submitted January 16, 1907.
    (Docket No. 42.)
    Decided March 5, 1907.
    Bill by Jacob C. Batdorf against John R. Dykstra and another to foreclose a mortgage. Prom a decree for complainant, defendants appeal.
    Affirmed.

      Dwight Goss, for complainant.

      Holmes & Holmes, for defendants.
   Carpenter, J.

This is a suit brought to foreclose a mortgage given by defendant John R. Dykstra and his wife, since deceased, to complainant. This mortgage was given as a part of a transaction whereby complainant exchanged a farm, upon which the mortgage is given, for a house and lot formerly owned by defendant Dykstra in the city of Grand Rapids.

It is contended that complainant defrauded Dykstra in this exchange and that the damages therefor exceeded the amount secured by the mortgage. Prom testimony taken in open court the learned trial judge decided that no fraud was committed, and he therefore gave complainant a decree for the full amount of the mortgage indebtedness. An examination of the record convinces us that he reached a correct conclusion.

The decree is therefore affirmed, with costs.

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


author: Hooker, J.

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    TROMBLEY v. KLERSY.
    Mortgages — Foreclosure—Redemption—Time.
    Under sections 111 and 118, Act No. 200, Pub. Acts 1899, the time to redeem from a mortgage foreclosure sale is six months from the date of the sale, and not from the date of confirmation.
    Appeal from Wayne; Brooke, J.
    Submitted January 16, 1907.
    (Docket No. 39.)
    Decided March 5, 1907.
    Petition by Robert Trombley, guardian of Joseph Buhler, an incompetent, against Andrew Klersy and Helen Klersy for a writ of assistance. From an order granting the writ, defendants appeal.
    Affirmed.

      De Forest Paine, for petitioner.

      William Look, for defendants.
   Hooker, J.

The complainant purchased the premises at a foreclosure sale, held March 19, 1906. The order nisi of confirmation was filed on that day, and was made absolute by an order of court on April 9, 1906. The question now before us arises upon an application for a writ of assistance.

The petition was filed September 21, 1906, and we are asked to hold that this was before the expiration of the period fixed by statute for redemption; it being contended that the statutory period of six months did not begin to run until the order of confirmation was made absolute by the order of the court on April 9th. The statute provides for a redemption within “six months from the time of such sale.” Act No. 200, Pub. Acts 1899, §§ 111, 118. This language is not ambiguous, and should be held to mean what it plainly says. The time of sale does not mean “time when the sale is confirmed.” Under counsel’s contention the six-months period could not begin to run until all questions that might arise over the order nisi should be finally settled.

As this is the only question properly raised by the record, it is only necessary to add that the order is affirmed, with costs.

MoAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


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    HARVEY v. ZIMMER.
    Specific Performance — Contract to Convey — Evidence.
    On a bill to enforce specific performance of an alleged oral contract, by which defendant agreed that complainant should live upon his farm and cultivate it on shares during his lifetime, and that the farm should belong to complainant on his death, evidence examined, and held, not sufficient to establish the contract.
    Appeal from Ingham; Wiest, J.
    Submitted January 17, 1907.
    (Docket No. 23.)
    Decided March 5, 1907.
    Bill by Lizzie Harvey against Peter Zimmer to compel the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William T. Webb (Q. A. Smith and O. J. Hood, of counsel), for complainant.

      Black & Beasoner, for defendant.
   Hooker, J.

Complainant’s bill, filed to compel specific performance of a contract alleged to have been, made between her father and herself, whereby she was to live upon and farm the premises in controversy upon shares during his lifetime, and upon his death the land should become hers, was dismissed upon the hearing, and she has appealed. The question is entirely one of fact, and there is little important testimony, except ■ that of the complainant and her husband upon one side and her parents upon the other. There is certainly no preponderance of evidence in complainant’s favor, especially when we consider that her statement that the arrangement was well understood and frequently talked in the family is denied by her parents and her brothers and sisters. We are of the opinion, therefore, that the record does not justify a reversal of the decree of the learned circuit judge.

The decree is affirmed, with costs.

McAlvay, C. J., and Carpentr, Grant; and Moore, JJ., concurred.


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    ROSE v. LINDERMAN.
    1. Fences — Partition Fences — Sufficiency—Statute.
    Under section 2415, 1 Comp. Laws, a common worm or Virginia fence, which requires the use of a strip of land from three to five feet in width, is one which the owners of farm lands may lawfully build, and a stump fence, built in accordance with the common practice of the country or locality, and meeting the approval of the fence viewers, is likewise one that may be lawfully built without a neighbor having ground for complaint that the same is not within the statute.
    2. Same — Occupancy of Land.
    A landowner, in building that portion of a partition fence allotted to him, is not obliged to build, it entirely on his own land, but may build it half upon each side of the mathematical line, irrespective of the kind of fence or the amount of land it occupies, so long as it is a lawful fence.
    3. Same — Unequal Ocoupanoy — Remedy—Ejectment.
    Where the builder of a partition fence occupies an unequal portion of his neighbor’s land therewith, ejectment will lie to oust him from the portion unlawfully occupied.
    Error to Kent; Perkins, J.
    Submitted January 18, 1907.
    (Docket No. 65.)
    Decided March 5, 1907.
    Ejectment by Washington Rose against Albert Linderman. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Rodgers & Rodgers, for appellant.

      E. A. Maher, for appellee.
   Hooker, J.

The parties to this action own and occupy adjoining lands. Having a controversy over the fence between their respective premises, the defendant caused a view to be taken of the same by the fence viewers, and 50 rods of the line was apportioned to him, and 30 rods to the plaintiff. The defendant had or thereupon built a stump fence; the roots of the stumps resting upon his land, and the trunk portion of the stumps resting upon the land of the plaintiff. The undisputed evidence shows that the fence occupied a strip of land about 5 to 5£ feet wide, and that, while the partition line was at the ends about in the middle of the fence, for the most part of the way it was two-thirds or more upon the premises of the plaintiff. He brought this action of ejectment for the land so used, but suffered defeat; the court directing a verdict for defendant, upon the grounds that a stump fence was a lawful fence, that defendant had the right to use an equal amount of land on each side of the line for the fence, and that the land used was substantially equal. It is upon the correctness of these rulings, and the further point — made first in this court — that ejectment will not lie in such a case, that the defendant relies for an affirmance of the judgment.

The statute relied upon in the case (1 Comp. Laws, § 3415) provides:

“All fences four and one-half feet high, and in good repair, consisting of rails, timber, boards, or stone walls, or any combination thereof, and all brooks, rivers, ponds, creeks, ditches and hedges, or other things which shall be considered equivalent thereto, in the judgment of the fence viewers within whose jurisdiction the same may be, shall be deemed legal and sufficient fences.”

We think that the term “ fence ” has a well-understood meaning, and that an ordinary worm or Virginia fence is a fence that owners of farm lands may lawfully build, and which would require the use of a strip of land from three to five feet wide. We are also of the opinion that a stump fence, built in accordance with the common practice of a country or locality, would be one that might be lawfully built, and a neighbor could not complain merely upon the ground that such a fence was not within the statute, if it should meet the approval of the fence viewers. We understand that the plaintiff has signified that he had no objection to this fence, provided it were wholly upon defendant’s ground. His counsel contend that the respective portions of all division fences should be placed wholly upon the land of the persons whose duty it is to maintain them, but that at all events such persons could not lawfully place more than one-half of such fences upon their neighbor’s land.

We are of the opinion that this contention cannot be sustained. Not only is the right to build one-half upon the land of the adjoining proprietor indicated in Newell v. Hill, 2 Metc. (Mass.) 180, which plaintiff’s counsel call the “leading case in the country,” but the same rule is indicated in New York, from which State Michigan copied the main body of her statutes (Ferris v. Van Buskirk, 18 Barb. [N. Y. ] 397; Warren v. Sabin, 1 Lans. [N. Y. ] 79), where it was declared that “ under the statute it is clear upon principle and authority that the owners are bound to erect and maintain a line or division fence, and should make it equally on the lands of each.” Tyler in his work on Fences, p. 362, says:

‘ ‘ But, when the legislature speaks of fences, and division fences, some idea of what a fence is is at once suggested to the mind. There is no statute, for example, authorizing the erection of a crooked or Virginia fence upon the line as a division fence between adjoining proprietors, and yet, as a matter of fact, a large proportion of all the division fences between adjoining farms in the State of New York are the worm or Virginia fence, leaving half the corners upon the land on one side of the mathematical line, and the other half upon the other side. This kind of fence has been built as a division fence in the State, time out of mind, so that it has become a part of the common law of the State that adjoining owners of farms may erect such fences as division fences, occupying the necessary quantity of land upon each side of the mathematical line; and such fence is a fence, in contemplation of law, upon the line between the adjoining farms.”

See, also, 19 Cyc. pp. 479, and notes 27 and 31, 480, and note 34. In Higgins v. Kingsley, 82 Hun (N. Y.), 150, it was held that where posts were set equally on both sides of a line, but wire netting was attached to rails set into the sides of the posts on one of the lots, the fence was not equally on each lot. This was a division fence. See, also, Kelly v. Donnelly, 19 Pa. Super. Ct. 456, citing other cases. See, also, Sparhawk v. Twichell, 1 Allen (Mass.), 450, and 12 Am. & Eng. Enc. Law (2d Ed.), p. 1052. We conclude, then, that a partition fence may be built upon the line and may occupy equal portions of land from the respective proprietors; that, while an unequal occupancy does not necessarily deprive the structure of the character of a partition fence, a party is entitled to relief if the fence occupies a disproportionate share of his land. We are also of the opinion that there was testimony in this record justifying the inference that the stump fence was a lawful and proper fence, so far as its character was concerned, and that the defendant had a right to build it upon the line. We think that there was testimony tending to show that an improper use of plaintiff’s land was made by reason of an inequality in the amount used.

The only other question relates to the nature of the remedy; it being said that ejectment will not lie, because the holding is not adverse, under some decisions that hold that title by adverse possession cannot be obtained by the maintenance of a partition fence off from the correct line, for the reason that the occupancy is permissive. We have no doubt that, irrespective of the question of acquiring title by occupancy, ejectment should lie for the unlawful occupancy of land, even if only for the purpose of building and maintaining a fence upon it. The case of Higgins v. Kingsley involved a division fence, and the action one at law for the recovery of a strip of land % inches wide by 105 feet long. Many times the question is disposed of in equity by injunction bill.

We do not mean to decide that this question is open on this record (see Kennedy v. Owen, 131 Mass. 431), having discussed the right to the remedy by ejectment instead, because the latter question would otherwise be open upon another trial.

The judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


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    PATEK v. CHICAGO & NORTHWESTERN RAILWAY CO.
    1. Bills and Notes — Nonnegotiable Draft — Transfer of Title.
    That a draft is nonnegotiable does not prevent a transfer of title thereto by indorsement and delivery for value.
    2. Garnishment — Liability of Garnishee — Payment.
    Where before service of a garnishee summons the garnishee had delivered to the principal defendant a nonnegotiable draft for the amount due him, which he had transferred to a bank for value, there was no indebtedness on the part of the garnishee.
    Error to Gogebic; Haire, J.
    Submitted January 18, 1907.
    (Docket No. 62.)
    Decided March 5, 1907.
    Garnishment proceedings by Julius J. Patek against the Chicago & Northwestern Railway Company as garnishee of Felix Gresukewicz. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Julius J. Patek, in pro. per.

      P. G. Flannigan, for appellee.
   Carpenter, J.

One Felix Gresukewicz — hereafter designated as Felix — was injured in 1902 while in defendant’s employ. He employed plaintiff as his attorney and commenced suit to recover compensation in the circuit court for the county of Gogebic. After careful investigation, plaintiff decided that his client had no cause of action, and he thereupon discontinued the suit. It was subsequently agreed that defendant would pay Felix $300, proyided the whole amoúnt would go to him without deduction for attorney fees. This was assented to by plaintiff. There was a long delay, and Felix employed plaintiff to hasten the matter, agreeing to pay him the sum of $50. This agreement was never communicated to defendant or to its officers.

On the 24th day of March, 1904, a settlement was made between Felix and the defendant company, whereby Felix released his claim; and defendant’s claim agent gave him a draft, payable to his order, for $300, drawn on defendant’s second vice president, at Chicago, 111. This draft contained the words:

“Not valid unless paid by the second vice president on presentation at his office.”

Felix at once took the draft to the bank of Ironwood, indorsed it, and obtained the money thereon. In the meantime plaintiff had commenced suit against Felix before a justice of the peace for the county of Gogebic, and on the 28th day of March, after said draft had been cashed by the bank of Ironwood, but before its payment by defendant, caused a garnishee summons to be issued and served upon defendant. Plaintiff subsequently obtained a judgment against Felix, and then sought the recovery against defendant, as garnishee aforesaid. This issue reached the circuit court, and a verdict was directed in defendant’s favor.

The controlling question is obviously this: Was defendant indebted to Felix at the time the writ of garnishment was served? Plaintiff insists that he was. He contends that the draft, being nonnegotiable, the circumstance that it was indorsed to, and discounted by, the bank, had no effect upon the obligation of defendant to Felix; that it (defendant), continued liable precisely as if the draft had never been issued, indorsed, and discounted. To this contention we cannot agree. The draft, though nonnegotiable, was accepted by Felix as conditional payment for his entire claim, and when he transferred that draft to the bank and received the cash, he no longer had any enforceable claim against defendant. The nonnegotiability of the draft did not prevent the bank acquiring a title thereto by indorsement. Story v. Lamb, 52 Mich. 525; Merchants’ Nat. Bank v. Gregg, 107 Mich. 146; Steere v. Trebilcock, 108 Mich. 464; Barger v. Farnham, 130 Mich. 487. Altman v. Fowler, 70 Mich. 57, relied upon by plaintiff, is not opposed to this decision. There it was said (and this statement was not necessary to the decision):

“ It is clear that writing the name of the vendor across the back of the instrument in question could not be construed into an assignment of the contract with the defendant.”

That case is unlike this. It is clearly not an authority for the proposition denied in this opinion, viz., that, though one has transferred for full value a nonnegotiable draft accepted by him as conditional payment of a claim, he may continue to enforce that claim.

Judgment affirmed.

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


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    McLAUGHLIN v. JACKSON CIRCUIT JUDGE.
    Attachment — Writ not Personally Served — Publication— Time.
    Where an attachment returnable September 11th was not personally served, and the first publication of the notice required by section 10573, 3 Comp. Laws, was made October 15th, the court was without jurisdiction of the proceedings, and properly denied plaintiff’s motion for an order to sell the property attached as perishable property; plaintiff’s remedy in case the sheriff was in default being by motion for an order to require him to make his return and to extend the time for the return of the writ if necessary, or if the delay was the fault of the publisher, application should have been made for an extension of the time for the return to bring the first publication within the 30 days.
    Mandamus by Miar McLaughlin to compel James A. Parkinson, circuit judge of Jackson county, to take jurisdiction of attachment proceedings.
    Submitted January 15, 1907.
    (Calendar No. 22,084.)
    Writ denied March 5, 1907.

      William, K. Sagendorph, for relator.

      Badgley & Badgley, for respondent.
   Blair, J.

Relator began suit in the Jackson circuit court by attachment. The writ was returnable on September 11, 1906, and was levied upon growing corn, which was afterwards out and husked by the sheriff, and this application is for the purpose of requiring the circuit judge to make an order for the sale of the stalks as perishable property. The circuit judge declined to make such an order, upon the ground that he had no jurisdiction of the proceedings. The correctness of this ruling depends upon the following state of facts: No personal service was made upon the defendant in the writ, who was a nonresident of the State, and there was no general appearance on his behalf. The sheriff’s return was filed in the cause October 9, 1906. The first publication of the notice, required by section 10572, 3 Comp. Laws, was made on October 15, 1906. Relator filed affidavits in support of his application, tending to show that the deputy sheriff was hostile to plaintiff’s suit, friendly to defendant, and did what he could to embarrass plaintiff’s attorneys; that plaintiff’s attorneys repeatedly requested thedéputy sheriff to make his return, but were unable to procure such return till October 9th; that, anticipating such return, plaintiff’s attorneys prepared the notice of publication, and took it to a newspaper office for publication on October 8th with instructions to publish it at once, but the publisher neglected to publish the notice till October 15th. After the circuit judge had denied the application, attorneys for the defendant in the attachment suit, who had appeared specially, filed affidavits of the deputy sheriff, the publisher, and themselves, tending to show that the default was wholly that of attorneys for plaintiff.

We think the judge committed no error in denying the application. Plaintiffs were applying for an order to sell perishable property, based upon a record which upon its face showed that the court had no jurisdiction. The statute requires that the first publication of the notice shall be within 30 days of the return day of the writ, otherwise the proceedings must fail. Millar v. Babcock, 29 Mich. 526; Watson v. Toms, 42 Mich. 561.

If the sheriff neglects or refuses to make his return, application should be made to the court for an order requiring such return, and, if necessary, extending the time for the return of the writ for the purposes of constructive service. If the notice was delivered to the publisher in time and the failure to publish the same within the 30 days was due to the negligence or other fault of the publisher, application should have been made, upon discoyery of such fact, for an extension of the time for return to bring the first publication within the 30 days.

The writ of mandamus is denied.

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