author: Brooke, J.

text:
    STEVENS v. GARLAND.
    1. Mortgages — Priority—Mechanics’ Liens — Statutes.
    . The drawing of plans for a building is not the commencement thereof so as to give liens priority over a mortgage given to the contractor under 3 Comp. Laws, § 10718 (3 Comp. Laws 1915, § 14804), providing that liens “shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said building or buildings, erection, structure or improvement,” especially where a bond is given by tbe contractor of even date and like amount as the mortgage.
    2. Mechanics’ Liens — Mortgages—Priority—Payments—Protection oe Owner — Sworn Statements.
    Lienors are not required by a decree making a mortgage to tbe contractor in tbe bands of an assignee a prior lien where tbe money represented by sucb mortgage, through tbe payment of tbe surety on tbe contractor’s bond guaranteeing tbe construction of tbe building according to tbe plans and specifications, pursuant to an order of court, has been expended by tbe owner in liquidating the cost of construction of tbe building, and it is immaterial that the owner failed to secure a sworn statement from tbe contractor before delivering to him the mortgage, no money being due or, to become due to any contractor or materialman at tbe time said mortgage was delivered.
    3. Same.
    Under 3 Comp. Laws, § 10713 (3 Comp. Laws 1915, § 14799), making payment by tbe owner to tbe contractor at bis own risk where be fails to require a sworn statement of tbe names of subcontractors, etc., before making payment, tbe owner is not protected in payments made to tbe principal contractor, in tbe absence-of a statement on oath by the contractor showing the names of tbe subcontractors, etc., and sucb payments are made at tbe risk of the owner, and do not discharge liens, unless distributed by tbe contractor among the subcontractors, materialmen, and laborers, Or, if distributed in part only, then to tbe extent of sucb distribution.
    4. Same.
    A sworn statement by a contractor of the names of subcontractors, etc., is a sufficient protection to tbe owner in making a payment to tbe contractor under 3 Comp. Laws, § 10713 (3 Comp. Laws 1915, § 14799), where it states that the “amounts due or to become due to sucb subcontractors, laborers, and persons for work done and materials furnished at tbe date hereof is correctly and fully set forth opposite their names respectively,” sucb statement being obviously false.
    5. Same — Evidence—Sufficiency—Waiver.
    Evidence held, sufficient to show a waiver by tbe owners of their right to insist upon, the completion of a building contract by the contractor at the fixed date.
    6. Same — Assignments—Bonds.
    The owners of a building are not injured by having a mortgage given to the contractor, and assigned by him to another, made a prior lien on the premises, although the contractor defaults, and the building is completed by the owners at increased expense, where the owners were secured for the amount of the mortgage by a bond entered into as a part of the same transaction, and the surety paid the bond.
    Appeal from Wayne; Withey, J., presiding.
    Submitted April 10, 1917.
    (Docket No. 119.)
    Decided September 27, 1917.
    Rehearing denied June 20, 1918.
    Bill by Frederic B. Stevens against Richard M. Garland, Sarah A. Garland, and the Webster & McCausey Lumber Company to foreclose a mechanic’s lien. Defendant lumber company filed a cross-bill to enforce a lien. Defendants Garland filed a cross-bill making James S. Galvin, mortgagee, and the Maryland Casualty Company, surety on the contractor’s bond, parties. From the decree entered, plaintiff, and defendants Garland and Webster & McCausey Lumber Company appeal.
    Reversed in part.

      Wilkinson, Routier & Hinkley (Clyde I. Webster, of counsel), for plaintiff and defendant lumber, company.

      Orla B. Taylor and Charles F. Delbridge, for defendants Garland.

      Ralph L. Aldrich, for defendant Galvin.
    Plaintiff filed a bill for the purpose of foreclosing a mechanic’s lien upon a structure owned by the defendants Garland. Defendant and cross-plaintiff Webster & McCausey Lumber Company seek in the proceeding the foreclosure of their lien for lumber furnished in the construction of said building. The defendants Garland, being the owners of a certain lot, on August 1, 1914,- entered into a contract with the Greenwich Company for the erection of a duplex dwelling on said lot to cost $7,400, payable as follows:
    First payment, on the execution of this contract a first mortgage upon the above described premises for three years, 6%...... ?4,400 00
    Second payment, when the foundations are in 1,000 00 Third payment, when the building is ready for roof.................................. 1,000 00
    Fourth payment, when the plumbing, steam and electric roughing are in and the building ready for lath and plaster '............ 1,000 00
    Total .................................. $7,400 00

    To protect the owners in the giving of the $4,400 mortgage, the Greenwich Company, according to the terms of the contract, was required to and did give to the owners a surety company bond in the sum of $4,-400 for the purpose of guaranteeing the erection of said building by the Greenwich Company according to the plans and specifications which were made a part of the contract. By the terms of said contract the building was to be completed on the 15th day of November, 1914. On the same day the contract was executed the Greenwich Company caused to be delivered to the defendants Garland the bond of the Maryland Casualty Company, in the sum of $4,400 in accordance with the terms of the contract, and on the 4th day of August, three days later, the defendants Garland executed and delivered, to the Greenwich Company a mortgage on the premises for a like amount. This mortgage was recorded on the same day. On October 24, 1914, the Greenwich Company for a valuable consideration assigned this mortgage to James S. Galvin. Galvin in purchasing the mortgage knew of the outstanding contract between the defendants Garland and the Greenwich Company, and of the existence of the bond of the Maryland Casualty Company guaranteeing to the extent of $4,400 the execution of said contract. On September 10th the defendants Garland paid to the Greenwich Company $1,000 without securing from said company the sworn statement required by the statute, and on November 11th they made a third payment to the Greenwich Company in the amount of $1,042, $42 representing certain extras. At that time a sworn statement was secured from the contractors in the following terms:
    “Horace E. Hartwell, being duly sworn, deposes and says that he is the president of the Greenwich Com-, pany, the original contractor for the erection of the building situated on the following described property, viz.: Known as No. 89 Alexandrine avenue east, Detroit, Michigan. That the following is a statement of the number and names of every subcontractor and laborer .in the employ of the Greenwich Company in connection with said building and of every person furnishing materials therefor; that the amounts due or to become due to such subcontractors, laborers, and persons for work done and materials furnished at the date hereof is correctly and fully set forth opposite their names, respectively, in said statement, to wit:
    Labor or No. Name. Materials. Amount.
    1. Frank Vettes ..........Excavations Nothing due
    2. B. C. Hughes .........Mason
    3. Webster, McCausey Co.. Materials
    4. Builders’ & Pavers’ Co.. “
    5. Amos & Co............Iron
    6. Solomon & Birkowitz.. .Labor
    7. F. W. Stevens Co.......Material
    8. Tbe Greenwich Co......Carpenters
    9. “ .....Masons
    10. “ .....Laborers
    11. Detroit Cut Stone Co... Limestone
    12. A. Rohns Co...........Steel
    “Deponent further says that the Greenwich Company has not employed, or procured material from, or subcontracted with any person or persons other than those above mentioned, and owes no mqneys for labor upon or material for the building of said house other than the sums above set forth.”
    This last payment was made within four days of the date fixed by the original contract for the completion of the structure, which had then reached a point nowhere near completion. In the early part of December the Greenwich Company, contractors, became financially embarrassed, and abandoned the contract. The defendants Garland then took over the work and finished it, but the building was not finally completed until September 15, 1915. The expense of completion after it was taken over by the defendants Garland amounted to $5,175.50. The lien of plaintiff, Stevens, amounts to $398; that of defendant and cross-plaintiff Webster & McCausey Lumber Company to $831.48. By the cross-bill filed by defendants Garland the Maryland Casualty Company and James S. Galvin were made parties, both of whom filed answers. By the terms of the final decree entered in the court below the Maryland Casualty Company was condemned to pay the defendants Garland the sum of $4,-400, with interest thereon in accordance with the terms of the bond given by it guaranteeing the performance of the Greenwich Company’s contract. No appeal has been taken from that decree by the Maryland Casualty Company, and the $4,400 and interest has been paid. By the further terms of the decree entered it was adjudged that the defendants Garland were entitled to an allowance of $400 as rental for the failure of the Greenwich Company to complete the contract within the time limited therein. It was further decreed that the plaintiff and cross-plaintiff Webster & McCausey Lumber Company had properly prosecuted their claims of lien in the sums above set forth. The court in the decree stated the account as follows:

      Debits.
    Amount of contract ............. $7,400 00
    Extras ........................... 179 00
    Total ........................ $7,579 00 $7,579 00
    Credits.
    August 4, 1914, by mortgage...... $4,400 00
    September 10, 1914, by check..... 1,000 00
    November 11, 1914, by check..... 1,042 00
    Credit by omission of girder...... 16 00
    Credit by accrued interest on mortgage prior to time of fourth payment .....................;..... 264 00
    Damages for delay in completion.. 400 00
    Penalty for failure to furnish
    sworn statement ............... 100 00
    Cost to complete the building----- 5,175 50 12,397 50
    $4,818 50
    —and found that the mortgage in the hands of Galvin was a subsisting lien, that the two payments of September 10th, and November 11th, amounting to $2,-042, were protected, and finally:
    “(2) That there is no sum whatever due from the defendants and cross-complainants Richard M. Garland and Sarah A. Garland, the owners of said premises, to said the Greenwich Company, the original contractor, because of any sums that they, contracted to pay such original contractor, and that all payments made by the defendants Richard M. Garland and Sarah A. Garland to the defendant, the Greenwich Company on account of said contract were made in conformity to the statute, and said defendants Richard M. Garland and Sarah A. Garland are entitled to full credit therefor as against lien claimants and to full protection thereon under the statute.

      “(b) Neither the complainants nor any of the defendants or cross-complainants have any lien or liens upon said premises, and each and every of the respective liens or claims of lien heretofore filed against said premises by said complainant and defendants, and each and every of them, are hereby discharged and decreed to be of no further force or effect, charge, or incumbrance upon or against said premises, and said premises are hereby decreed to be free and clear of and from any such claim of lien. * * *

      “(e) The following lien claimants have in all respects conformed with the requirements of the statute for the filing and proving of their claims, but the owners of the premises being in no way indebted to the original contractor for any amount which they contracted to pay the original contractor, including extras furnished or performed by the contractor pursuant to said contract, said claims of lien are hereby disallowed against said premises, to wit:
    Frederick B. Stevens.........................:. $398.00
    George Nunn .................................. 108.88
    Park & McKay ................................. 46.80
    Webster & McCausey Lumber Company......... 831.48”
    From the decree so entered, ■ plaintiff, and cross-plaintiff Webster & McCausey Lumber Company, as well as defendants Garland, appeal. »
   Brooke, J.

(after stating the facts). We will first consider the appeal taken on behalf of the plaintiff and defendant Webster & McCausey Lumber Company. Their contentions are grouped under the following heads:'

“First. That the liens take priority over the mortgage given to the Greenwich Company, and later assigned to defendant James S. Galvin.
“Second. That the owners did not make such payments as entitled them to protection. The first payment is not protected, payment being made September 10th, without securing a sworn statement, and the second payment of November 11th, although made on the strength of Exhibit 40, is not protected, for the reason that the sworn statement secured does not comply with the statute. Section 13769, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 14799.
“Third. That the plaintiff and defendant Webster & McCausey Lumber Company should be decreed to have a lien against the premises for the amount due, and that the said liens should take priority over the mortgage.
“Fourth. That the defendants Garland are not entitled to damages reimbursing them for loss of rents, for the reason that the time limit was a physical impossibility, and, further, for the reason that no forfeiture was ever declared or insisted upon.
“Fifth. Commencement of the building is the first work done, viz., the drawing of the plans and specifications, which in the present case was confessedly prior to the execution of the mortgage.”

The first and fifth propositions may be considered together. The claim stated in the fifth proposition that the liens should take priority of the mortgage, because before the mortgage had been given the plans and specifications had been drawn, is not tenable. Subdivision 3 of section 13774, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 14804:

“Thgy [liens] shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, which shall either be given or recorded subsequent to the-commencement of said building or buildings, erection, structure or improvement.”

It is, we think, clear, that the drawing of plans for a building is not “the commencement of said building or buildings.” Under the first head the contention is made that the liens of appellants are superior to the mortgage lien because the mortgage was given to the contractor. Upon this point appellant cites 27 Cyc. p. 241, and Bassett v. Menage, 52 Minn. 121 (53 N. W. 1064), asserting that in the hands of the Greenwich Company, the mortgagee, the mortgage would be inferior as a lien to liens of appellants. They claim that' it is likewise so inferior in the hands of James S. Galvin, to whom it was assigned on October 24th, something over two months after the commencement of the building.

We are of opinion that the whole question of the mortgage is disposed of by a consideration of the following matters: The defendants Garland, owners of the lot, would not have given the mortgage for $4,400 to the Greenwich Company without the protection of the Maryland Casualty Company bond of even date and like amount. The record conclusively shows that Galvin, as assignee of said mortgage, would not have purchased the same but for his knowledge of the existence of said bond. It further appears that the decree of the court below directing the payment by the casualty company to the defendants Garland of the said $4,400 and interest thereon has been satisfied, so that, so far as the appellant lienors are concerned, we are unable to see how in the final analysis they are injured by the decree of the court holding said mortgage a subsisting lien superior to their own. The mortgage was given by the owners, and eventually the money represented by said mortgage, through the payment by the bonding company of the penalty named in the bond, has reached the hands of the owners, and presumably has been expended by them in liquidating the cost of the building, the purpose to which the.fund was to be devoted when placed in the hands of the original contractor; nor do we think that the failure of the owner to secure a sworn statement from the contractor before delivering to him said mortgage is a matter of consequence. At the time said mortgage was delivered no money was due or to become due to any contractor or materialman. For his own protection the contractor or materialman should have advised himself of the terms of the contract between the Greenwich Company and the defendants Garland, and, being so advised, he would have known that the Greenwich Company had become possessed of the $4,400j on account of the contract price. The mortgage was! of record, and every contractor and materialman dealing with the original contractor had constructive notice of its terms.

It is undisputed upon this record that the payment made by defendants Garland on September 10, 1914, was made without securing from the principal contractor the sworn statement required by section 13769, 5 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 14799, which provides in a note thereto:

“Payment by owner without requiring statement is at his own risk.”

This section was under consideration by this court in the case of Fairbairn v. Moody, 116 Mich. 61 (74 N. W. 386, 75 N. W. 469), where it is said:

“It is claimed that, as the full contract price was paid, and all distributed for labor and materials, there can be no further lien; but under section 1 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893) the owner is not protected in payments made to the principal contractor, in the absence of a statement on oath by the contractor, showing the names of the subcontractors, etc., and such payments are made at the risk of such owner, and do not discharge the lien, unless distributed by the contractor among the subcontractors, material-men, and laborers, ‘or, if distributed in part only, then to the extent of such distribution.’ ”

Again in Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797), the court said:

“This provision points out the way in which the owner may safely make payments; that is, he need incur no risk: First, if he refuses payment until he is provided with a sworn statement of the contractor, and complies with it; second, if the money paid is distributed,, in accordance with the statute, among those who might acquire liens, even though he makes payments without the sworn statement. The owner is not required to make payments beyond the amount called for in the contract.”

It is, we think, clear, that as to the payment of $1,000 made on September 10, 1914, defendants Garland are without protection. Touching the payment of November 11th, which was made upon the sworn statement of the principal contractor, of the same date, it is the contention of appellant lienors that it does not comply with the statute because it contains no reference to the amounts to become due the material-men or laborers. The record discloses that plaintiff’s first delivery was made on November 2d, and the last on November 17th, and that the Webster & McCausey Lumber Company’s first delivery was made on September 2d, and the last on December 11th, so that on November 11th, when the sworn statement was given by the principal contractor, much material had been delivered at the premises, and at some time in the future compensation therefor would “become due.” The sworn statement is obviously false, if it means, as defendants Garland contend that it does mean, that no amount was either due or to become due to any of the contractors or materialmen named in the statement. It is such a statement as should have aroused the suspicion of any owner, who was conversant with the progress of the work as the defendants Garland were, but we are not prepared to say that it was not a sufficient protection under the statute, in view of the fact that it contains the following language:

“That the amounts due or to become due to such subcontractors, laborers, and persons for work done and materials furnished at the date hereof is correctly and fully set forth opposite their names, respectively, in said statement, to wit.”

Defendants Garland claimed a large sum for loss of rent by reason of the failure of the Greenwich Company to complete the contract on November 15, 1914, and they were allowed by the court below the sum of $400 on this account. We are of opinion that this claim on behalf of said defendants is not well founded. The defendants waived the right to insist upon the completion of the building within the contract time. This waiver is shown by the fact that four days before the time fixed for completion defendants paid to the Greenwich Company upwards, of $1,000 upon the contract, at a time when the building was without roof, the partitions incomplete, and at a time when, according to defendant Garland’s testimony, he was absolutely confident the building could not be completed by November 15th. He further testified that the Greenwich Company commenced the erection of the building upon August 20th, and continued until December 12th, nearly a month later than the date fixed by the contract, and when they abandoned it it was so far from completion that it cost defendants upwards of $5,000 to finish it. Under these circumstances we are disposed to the view that defendants Garland waived their right to insist upon the completion of the contract on the stipulated date. Kotcher v. Perrin, 149 Mich. 690 (113 N. W. 284).

We now come to a consideration of the claim of defendants and appellants Garland. The principal claim of these appellants is that the mortgage should be held void in the hands of Galvin. What we have said with reference to this mortgage heretofore in connection with the claims of the lienors is pertinent here, but to that may be added the f ollowing observation: Through their foresight the defendants Garland, when they gave the mortgage, secured the bond of the Maryland Casualty Company for an equal amount and of even date with the mortgage, conditioned upon the faithful performance of the contract by the Greenwich Company. The Greenwich Company failed to perform, and the bonding company has responded in the full penalty of the bond. The defendants Garland therefore are not injured so far as the mortgage is concerned. They gave the mortgage to the Greenwich Company, and through the bonding company have received full consideration therefor, together with interest thereon. It is and should be a subsisting lien against the property; otherwise the money paid to them by the bonding company would be without consideration from them. The giving of the mortgage and bond were one transaction, and as the penalty of the bond has been exacted from the bonding company, it would be highly inequitable to permit them to avoid the payment of the mortgage. The decree of the court below upon this point is therefore affirmed.

The statute (3 Comp. Laws, § 10710, 3 Comp. Laws 1915, § 14796), provides:

“The owner * * * shall not be liable to the * * * materialmen * * * for any greater amount than he contracted to pay the original contractor, and shall be entitled to recoup any damages which he shall sustain by reason of any failure or omission in the performance of such contract.”

The original contract price was $7,400. To this should be added the amount of the conceded extras, $179, so that we have a total contract price of $7,579. Let us see what the defendants Garland have paid, and in making this computation the $4,400 represented by the mortgage will be entirely disregarded because they have received that sum back with interest thereon from the bonding company. They have paid to complete the building, $5,175; they have paid on November 11th, $1,042; credit by omission of girder, $16— or a total of $6,233.

This sum deducted from the contract price, plus extras, $7,579, leaves a balance of $1,346. Referring to the statement of account contained in the decree and hereinbefore set forth, the first credit item of $4,-400 is disallowed for the reasons stated. The second item of $1,000 is disallowed because not protected by the owners procuring a sworn statement before payment. The third item of $1,042 is allowed. The fourth item of $16 is allowed. The fifth item of $264 is disallowed because defendants Garland received from the Greenwich Company not only the $4,400 represented by the mortgage, but interest thereon. The sixth item of $400 for lost rent is disallowed for the reason stated herein. The seventh item, the penalty of $100, is disallowed as between the owners, and the lienors. The eighth item of $5,175.50- is allowed. The result of these conclusions is that the decree of the court below' is reversed in part. Inasmuch as the sum now in the hands of the owners is in excess of the amount found to be due to the lienors, a decree will be entered in this court fixing said liens upon said property, subject, however, to the mortgage for $4,400.

Plaintiffs will recover costs-against defendants Garland.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE, ex rel. SIMMONS, v. ANDERSON.
    1. Officers — Vacancies—Statutes—Failure to- Observe Conditions — Construction of Statutes.
    A construction should not be placed upon any statute, enumerating the qualifications for office, -which, would require procedure not plainly set up in the statute, and which would operate to defeat the will of the electors by creating vacancies caused by a failure to observe conditions which the statute has not specifically imposed.
    2. Schools and School Districts — Officers—Qualification of Trustees — Oath of Office — Acceptance.
    Act No. 154, Pub. Acts 1903, § 1 (2 Comp. Laws 1915, § 5892), providing that a township school district- shall become a separate organization when the first trustees shall have been duly elected and shall have filed théir acceptances with the township clerk, and section 2, providing that the officers elected April, 1903, shall hold until the trustees elected in July, 1903, shall have filed their acceptances and become duly qualified, and that subsequently elected trustees shall hold until their successors are duly qualified and file their “acceptances,” and section 3, requiring the first trustees to take the constitutional oath of office within five days after notice of their election, and file it with the township clerk, must, in view of the fact that the evident purpose of the act was to conform the schools covered by it to the general school law then in existence, which did not require a constitutional oath of office as a qualification of an acceptance, be construed as not requiring a constitutional oath in addition to the writing accepting the office to constitution an “acceptance.”
    3. Same.
    Act No. 21, Pub. Acts 1903, § 5 (2 Comp. Laws 1915, § 5672), changed the qualifications of general school officers by requiring a property affidavit in addition to an acceptance of the office.
    4. Statutes — Construction by Departmental State Officers.
    While not binding on the courts, the construction given laws by departmental State officers is entitled to serious consideration.
    5. Schools and School Districts — Officers—Acceptance—Vacancy.
    Under 2 Comp. Laws, § 4667 (2 Comp. Laws 1915, § 5669), where a newly-elected township school trustee has filed his acceptance within the required time there is no vacancy.
    6. Same — Officers—Termination of Office — Acceptance.
    Under Act No. 154, Pub. Acts 1903, § 2 (2 Comp. Laws 1915, § 5893), the right of an incumbent of the office of township school trustee to hold over expires when his successor files his acceptance.
    7. Same — Constitutional Law — Officers—Oath of Office.
    Under the Constitution, Art." xvi, § 2, providing that all officers, executive and judicial, except those exempted by law, shall, before entering upon the duties of their offices, take the prescribed oath, school officers are executive officers.

      Error to Alger; Fead, J.
    Submitted April 12, 1917.
    (Docket No. 153.)
    Decided September 27, 1917.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of David E. Simmons, prosecuting attorney, against August A. Anderson to try the title to the office of school trustee. Judgment of ouster. Defendant brings error.
    Affirmed.

      W. S. Hill (C. F. Button, of counsel), for appellant.

      R. R. Stewart, Prosecuting Attorney, for appellee.
   Per Curiam.

The opinion and conclusions of the learned trial judge are adopted and approved, and the judgment affirmed.

“This is a quo warranto proceeding brought by the prosecuting attorney of Alger county, on his own relation, to test the right of respondent to the office of member of the board of education of the Rock River township school district in such county.
“Respondent, at the time of the school election on July 10, 1916, was a duly elected and qualified trustee of the district. He was a candidate for reelection at that time, but was defeated. Three new members were elected, two of whom have properly qualified, and the present controversy revolves around the status of the third member elected, Alec Chartier, in whose favor a judgment is asked herein. Within ten days after the election Chartier filed with the secretary of the board of education a written acceptance of the office accompanied by an affidavit of his property qualifications, in conformity with the provisions of 4 How. Stat. (2d Ed.), § 9891 (2 Comp. Laws 1915, § 5672). He neither then, nor has he since filed the oath of office provided for in article 16, § 2, of the Constitution of the State. On July 24th, the members of the board, old and new, including both Chartier and respondent, met to organize. The secretary reported that two vacancies existed in the board, caused by the failure of Chartier and one John Akkala to file their constitutional oaths of office. The board immediately declared such offices vacant, and elected respondent and Akkala to fill them. Akkala took and subscribed the oath and filed same, claiming to act as an elective and not as an appointive officer. No exception seems to have been taken to this course. Respondent qualified. Chartier, apparently accepting the secretary’s interpretation of the law, withdrew from the meeting, but not from the room, stating that he had made a mistake. No further business was done. One July 26th another meeting of the board was held, at which Chartier, having had legal advice from the prosecuting attorney, was present, seeking recognition as a member, but he was informed by the secretary before the meeting that he would not be recognized as a trustee. The board proceeded to business, respondent acting as a member (Chartier in the room, but not acting), and elected officers, two of the members voting ‘No’ on all elections. While the board was so acting, or immediately after the adjournment, the two dissenting members and Chartier, in the same room and in the presence of the other members, proceeded to organize a board, demanding that the secretary take minutes of their meeting and, upon his refusal, appointed a temporary secretary, Chartier, and elected a president and treasurer. This board, consist-, ing of three of the four recognized members, Akkala, Zeno, arid Tunteri, with Chartier, has held meetings since and has transacted business. Chartier has acted as the secretary of such board in the absence of the secretary ds jure, who has attended none of the meetings. The secretary and respondent, not constituting a quorum, have held no meetings.
“The principal legal question involved is whether it was necessary for'Chartier to file a constitutional oath of office in order to qualify as trustee under his election. The incidental question is also raised of what effect the failure to file such oath has upon respondent’s title to the office, either as a hold-over official or as an appointee. The determination of these questions requires an examination both of the statutes and the Constitution of the State.
“I. The Statutes.
“Rock River school district is operating under the provisions of Act No. 154 of the Public Acts of 1903. The act is amendatory to and supersedes the original upper peninsula township school district act, enacted in 1891, and found in 2 Comp. Laws, § 4823 et seq. (2 Comp. Laws 1915, § 5892 et seq.). Under the original act,, elections were held at the time of the annua! township election in April, and only constitutional electors could vote at them. The board of education consisted of the township clerk, two school inspectors, and two trustees. All trustees were required to take the constitutional oath of office. They held for the terms for which they were elected, and until their successors were ‘elected and qualified.’ The general school laws were applicable to such district except as they were inconsistent with the provisions of the act. The district became organized when a certified copy of the necessary petition, together with the determination of the proper officers, was filed with the county clerk and the secretary of the board of school inspectors of the county. The first election was to be held at the then next succeeding township election.
“Act No. 154 of the Public Acts of 1903 made sweeping changes in the law, evidently for the purpose of eliminating the schools from the vicissitudes of township politics and to make the law more conformable to the general school laws. It applied automatically to the township districts then in being. By this act, a new district becomes organized when the officers shall have been duly elected and file their ‘acceptances’ with the township clerk, the elections were held in July. ‘The qualifications of voters and the conditions of eligibility shall be the same as provided in the general school laws.’ The trustees hold office until their successors are duly elected ‘and file their acceptances.’ The officers elected at the April election in 1903 held office in those districts already formed until their successors chosen in July, 1903, had ‘filed their acceptances and become duly qualified.’ The first trustees elected under the act were required, within five days after notice of their election by the township clerk, to take and subscribe the constitutional oath and file it with the township clerk. Thereafter the. elected trustees filed their ‘acceptances’ with the secretary of the board bf education. Appointed ■ trustees are re-| quired to take the constitutional oath within five days after appointment. The general school laws are in force in the district ‘except such as shall be inconsistent with the provisions of this act.’
“It is urged by counsel for respondent that trustees elected after the first election are required to take the constitutional oath in order to qualify for office. Section 1 provides that the district shall become a separate organization when the first trustees ‘shall have been duly elected and shall have filed their acceptance with the township clerk.’ Section 3 requires the first trustees to take the constitutional oath of office within five days after notice of their election and to file it with the township clerk. The argument is that these two provisions, read together, define ‘acceptance’ as the constitutional oath of office, section 3 specifying the requirements of the ‘acceptance.’ It is also urged that, inasmuch as the first officers elected and those appointed by the board to fill vacancies must file the constitutional oath of office, it was the evident intent of the legislature that all trustees should file the oath. There is considerable force in this argument, and it would be very persuasive under the rule requiring the harmonizing of statutory provisions, were the act of 1903 an original act, independent of other laws and complete in itself. Instead of so being, it is an amendatory or revisory act, joined -by its own terms to the general school laws and dependent upon them in a large measure for the execution of its provisions. In drafting the act, the framework of the 1891 law was used, some of its provisions were incorporated without material change, alterations made here and there in the body of sections to bring the whole scheme of the schools more in line with the general system, but preserving the township district organization, and the result is a somewhat inartificial act, not entirely harmonious, and certainly not complete.
“Viewing the act in itself, reasonable argument may be advanced both for and against the proposition that ‘acceptance’ means the constitutional oath of office. The argument of counsel for respondent in favor of the proposition is logical and reasonable. On the other hand, an examination of the statute discloses that the word ‘acceptance’ is used in connection with the qualifications only of the elected trustees, and is not applied to those appointed by the board. Section 2 provides that the officers elected in April, 1903, shall hold until the trustees elected in July, 1903, ‘shall have filed their acceptances and become duly qualified.’ The same section provides that subsequently elected trustees shall hold until their successors are elected and file their ‘acceptances.’' This difference in language used in the same section, but referring to different conditions, would seem to indicate an intention that officers elected in July were required to do something more than to file their acceptances in order to ‘become duly qualified.’ That something is set up in the next section, where they are specifically required to take the constitutional oath. Were the act complete in itself and an original statute, the construction that the trustees elected after the first election are required only to file an acceptance would not be unreasonable.
“Moreover, I do not think that a construction should be placed upon any statute, enumerating the qualifications for office, which would require procedure not plainly set up in the statute, and which would operate to defeat the will of the electors by creating vacancies caused by a failure to observe conditions which the statute has not specifically imposed. School officers especially, who are entirely subject to the control of the legislature, should not be required, on peril of forfeiture of their offices, to determine the intention which may be gathered from a statute in an attempt to harmonize its various provisions. They should be entitled to take office upon doing what the law says they shall do. While counsel say it is very plain from the law that all trustees must take the constitutional oath, it would appear the question is not entirely free from doubt from the fact that both the prosecuting attorney of the county and the attorney general of the State have rendered opinions that Chartier was properly qualified upon filing his written acceptance and affidavit, and that the constitutional oath was not necessary. It should be the purpose to sustain the right of an elected officer who has fulfilled the plain language of the statute in seeking to qualify rather than to require him to depart from the language and guess what the intention, of the legislature was. Qualification for office should be made easy rather than difficult, and words used by the legislature should be understood in their common rather than in a technical or a related sense not plainly apparent.
“The statute requires of Chartier merely an acceptance of the office. He filed that, together with the affidavit of property qualification required by the general school law. The statute of 1908 specifically points out nothing more for him to do. His title should be sustained unless the law plainly requires a different ruling.
“The act of 1903 was amendatory of the act of 1891. The word ‘acceptance’ is not found in the earlier statute, but all trustees were specifically required to take the oath of office. ‘Acceptance’ was introduced into the later act, always in connection with the qualification for office. Were it a new word as so used, its introduction by amendment into the státute, the term ‘oath required by the Constitution’ or its equivalent being also retained, would, of itself, indicate a difference. If there were no settled significance to the word, its meaning would have to be determined from the act. But in view of the evident purpose of the act to conform the schools covered by it to the general school system, it is especially significant that there is a departure from the original language of the act, and that a word is introduced to express the qualifications of trustees which has been employed in that connection in the general school laws, at least since 1846. Thus, in the general school laws, it has been uniformly provided, until the requirement for a property affidavit in 1903, that the school officers constituting the board of education should ‘file a written acceptance of the offices to which they have been respectively elected’; and a new district was deemed organized when any two of the officers elected at the first meeting had filed their ‘acceptance.’ 1 Comp. Laws 1857, §§ 2248, 2249; 1 Comp. Laws 1871, §§ 3586, 3587; 2 How. Stat. §§ 5037, 5057; 2 Comp. Laws 1897, §§ 4650, 4670 (2 Comp. Laws 1915, §§ 5652, 5672). In none of the general school laws, applying either to primary or graded schools, so far as I have been able to find, is there any mention of the constitutional oath as a qualification for the office of trustee. In all such laws up to 1903; the sole qualification was the acceptance of the office in writing. And. in 1903, at the same session in which the act in question was passed, the legislature changed the qualifications of the general school officers only by requiring the property affidavit in addition to the acceptance. Act No, 21, Pub. Acts 1903 (2 Comp. Laws 1915, § 5669).
“While, from the act itself, different reasonable conclusions may be drawn as to the necessity for the constitutional oath, it appears to me that the proper rule of construction and the adoption of the word ‘acceptance’ from the general school laws render unnecessary the taking of the constitutional oath by Char-tier as a qualification for the office, r “But, even if proper, it is not necessary to indulge in finely drawn speculations as to the intent of the legislature. The controversy at bar is confined to the status of a trustee elected long after the act of 1903 became effective in the district. The only provision directed to the requisites of the qualification of such an officer is the proviso in section 3 that he shall file his acceptance with the secretary of the board of education. The first part of the section obviously does not refer to such officer, as it applies specifically to the first officers elected under the act, requires notice of their election by the township clerk, who has no subsequent official connection with the district or its elections, and requires them to take the' oath after such notice is given. None of those conditions would be present in subsequent elections. It can hardly be said that the provision relative to the oath of office applies to the subsequent trustees when none of the other provisions making necessary such oath is pertinent. The act, moreover, does not purport to state the time in which the subsequent trustees must qualify, nor define ‘acceptance’ as there used.
“The key to the whole situation may be found in that provision in section 1 which makes applicable to the district all the general school laws ‘except, such as shall be inconsistent with the provisions of this act.’ On account of the many necessary school matters which the act does not touch, the reasonable interpretation is that the inconsistency must appear in order to make the act of 1903 operative on any proposition. And inasmuch as the act does not provide the time for qualification of the trustees elected after the first election, lays down no requisites of qualification, but rather employs a term used in the general school laws, which has always been employed in them as stating the qualifications of school officers, we are necessarily referred to the general laws for the determination of the essentials of qualification.
“I have found no statute or decisions which define an acceptance, but that it is different from the constitutional oath of office can hardly be questioned. While the case is not upon the subject before us, it is apparent from the facts stated that the Supreme Court has recognized an acceptance as being what its ordinary significance would indicate: i. e., a writing in terms accepting the office. Culver v. Armstrong, 77 Mich. 194 (48 N. W. 776).
“While not binding on the courts, it is also the rule that the construction given laws by departmental State officers having duties to perform under such laws is entitled to serious consideration. In the pamphlets of school laws issued by the department of State and distributed by the educational department, the form of an acceptance is given as an unverified statement that the person accepts the office; the constitutional oath of office not appearing among the forms appended for the guidance of school officers.
“The statute itself disposes of the right of the respondent to hold the office. Chartier having filed his acceptance within the required time, there was no vacancy. 4 How. Stat. (2d Ed.) § 9888 (2 Comp. Laws 1915, § 5669). Consequently the appointment of respondent was ineffective to confer title to the office on him. Respondent’s right to the office, as a hold-over official, expired when the acceptance was filed. Section 2, Act No. 154, Public Acts 1903 (2 Comp. Laws 1915, § 5893). A judgment of ouster must therefore run against the respondent.
“In the above discussion, no account has been taken of the constitutional provision, but the whole discussion has been directed to the provisions of the statute. The right of Chartier to a judgment declaring him to be a de jure officer must depend upon whether an oath is required in such cases under the Constitution.
“II. The Constitution.
“In article 16, § 2, it is provided: ‘Members, of the legislature and all officers, executive and judicial, except such officers as may by law be exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation,’ etc. Relator urges that, as school officers are not constitutional officers, the requirements of the Constitution relative to the oath of office do not apply to them. It is true that schools are under the complete control of the legislature (Belles v. Burr, 76 Mich. 1 [43 N. W. 24] ; Burton v. Koch, 184 Mich. 256 [151 N. W. 48]), but the Constitution does not confine the provision to the officers it recognizes. The language is broad, applying to all officers, executive and judicial. School officers are executive officers. People v. Salsbury, 134 Mich. 537, 549 (96 N. W. 936).
“The only authority I have been able to find upon the proposition of what constitutes a sufficient exemption from taking the oath is the statement in Mechem Pub. Off. § 257, upon the authority of School Directors v. People, 79 Ill. 511, that such exemption may not only be express, but may be gathered from the evident intention of the lawmakers. Neither the Illinois constitution nor the decision is available to me at this time for comparison. And in view of the sweeping character of the provision in our Constitution, together with the requirement that the exemption must be ‘by law,’ I do not feel justified in holding that a school trustee is exempted from taking the oath. Chartier, therefore, is not a fully qualified officer, and is not entitled to a judgment. Until he has taken the constitutional oath, he cannot enter upon the duties of his office.
“Since the within opinion was written, counsel for respondent has filed a request for findings of fact and conclusions of law. The facts as set out in the beginning of this opinion will stand as the findings of fact. The conclusions of law are- stated as follows:
“1. Chartier filed a proper acceptance within the time prescribed by statute and prior to July 24, 1916.
“2. There was no legal vacancy in the office of trustee of the Rock River township school district on July 24, 1916.
“3. The assumed appointment of respondent to a vacancy in such office, on July 24, 1916, was void and of no legal force or effect.
“4. Respondent's right and title to the office of trustee, held by him under former election, ceased when Chartier filed his acceptance.
“5. Respondent has no right or title to such office, either as a hold-over or an appointed official.
“6. The relator is entitled to a judgment of ouster as against respondent, ousting him from the office of such trustee.
“7. As Chartier has not filed a constitutional oath of office, no judgment can be entered in his favor herein.
“Judgment of ouster will be entered against respondent, no judgment being entered as to Chartier.”


author: Kuhn, C. J.

text:
    RENNELLS v. POTTER.
    1. Fraudulent Conveyances — Evidence—Sufficiency—Insolvent Partnership — Consideration'—Inadequacy.
    The evidence was sufficient to show that the transfer by the members of a partnership, while it was insolvent, of horses used in delivering goods for a store and equipment and copies of route sheets bearing names of customers and orders and good will of the business to a father of one of the partners, an employee of the firm, was for an inadequate consideration, and invalid as against partnership creditors, and merely a cover for the starting of a new business under a new name in a new location.

      2. Bankruptcy — Fraudulent Conveyances — Claims—Terms of Decree.
    In a suit by a trustee in bankruptcy, a decree setting aside a sale of a bankrupt partnership’s' property as fraudulent against creditors need not provide for the payment of the debts due the purchaser, as persons having claims should go into the bankruptcy court and have their rights determined.
    3. Same — Intervention by Trustee — Parties.
    A trustee in bankruptcy, who is granted the right to intervene in a suit involving the rights of the bankrupt, becomes a party for all the purposes of the suit, and thus carries with him his character as trustee in bankruptcy.
    4. Equity — Trustee in Bankruptcy — Amendments.
    A trustee in bankruptcy appointed since the commencement of a suit may be brought before the court by an amendment to the bill, and a supplemental bill is unnecessary, he being a new party claiming only such interest as is acquired by operation of law.
    5. Same.
    Facts which existed at the time an original bill of complaint was filed, but which were not known to plaintiff because they were concealed by the defendants themselves, may be presented to the court by way of amendment instead of a supplemental bill.
    Appeal from Kent; Perkins, J.
    Submitted April 16, 1917.
    (Docket No. 17.)
    Decided September 27, 1917.
    Bill by John E. Rennells and Richard J. Prendergast, trustee in bankruptcy of the De Witt-Potter Company, against William H. Potter and others to set aside a fraudulent transfer of the assets of said company. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Thornton, Fuller & Starr (Ganson Taggart and Bonn M. Corwin, of counsel), for plaintiff Prendergast.

      Rodgers & Rodgers, for defendants Potter.

      After hearing the evidence with reference to this controversy, the trial judge made findings of fact, and granted relief, as follows:
    “That some time prior to October 20, 1914, E. Bert Potter, John E. Rennells, and William (Wilbur) H. Potter entered into a fraudulent conspiracy to hinder, delay, and defraud the creditors of the De Witt-Potter Company, a copartnership composed of the said E. Bert Potter and John E. Rennells, and to convert certain of the assets of said copartnership to their use and benefit; that in the furtherance of this conspiracy the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, on or about October .1, 1914, started a new tea and coffee store at 609 Lyon street, in the said city of Grand Rapids, under the name of Furniture City Tea Company; that on or about October 20, 1914, the said E. Bert Potter and John E. Rennells abandoned the business of De Witt-Potter Company, then located at 211 Division avenue south, in said city, and transferred therefrom to the Furniture City Tea Company, and without consideration, six horses, six delivery wagons, several sets, of harnesses, several sleighs, and the other paraphernalia used in the delivery of goods, together with copies of certain route sheets bearing the names of customers of the De Witt-Potter Company and bearing orders for goods to be delivered, and including the good will of the said business, all of which property and assets have since been used by said parties in conducting the business of the Furniture City Tea Company; that the reasonable worth and value of the said horses, wagons, harnesses, etc., was on the said 20tK day of October, 1914, the sum of $1,000; that the reasonable worth and value of the said copies of the route sheets was, on said day, the sum of $2,500; 'that the De Witt-Potter Company on said October 20, 1914, was, and for some time prior thereto had been, insolvent; that the business of the De Witt-Potter Company was completely wrecked, appropriated, and converted by and through the fraud of the said parties; that the unpaid debts of the said De Witt-Potter Company amount to some $12,000, and that the total remaining assets amount to only about $1,500; that the said De Witt-Potter Company, said E. Bert Potter, and John E. Rennells have all been declared bankrupt by the district court of the United States, western district of Michigan, southern division; and that complainant, Richard J. Prendergast, trustee, is the duly elected and qualified trustee in bankruptcy of the said De Witt-Potter Company.
    “The court further finds that the business of the said Furniture City Tea Company is a continuation of the business of the said De Witt-Potter Company; that it is the same business conducted under the new name as a disguise; that the real proprietors of the said Furniture City Tea Company are the said E. Bert Potter and John E. Rennells; that the pretended ownership of Furniture City Tea Company by William (Wilbur) H. Potter is merely a sham and a part of the fraud and conspiracy against the creditors of the said De Witt-Potter Company; that the business and stock of merchandise which preceded the said Furniture City Tea Company at 609 Lyon street were purchased by E. Bert Potter and John E. Rennells in the name of Wilbur H. Potter, and were paid for with money which should have been applied to the payment of the debts of said De Witt-Potter Company, and that William (Wilbur) H. Potter has no financial interest therein ; that the pretended sale and transfer of the said horses, wagons, harnesses, and other paraphernalia to said William (Wilbur) H. Potter was and is without consideration, and was and is another part of the said fraud and conspiracy, and that said pretended transfer was and is fraudulent and void; that all the property, assets, money, and business of said Furniture City Tea Company, as the successor of said De Witt-Potter Company, bankrupt, including all additions, accumulations, and profits to said property, assets, money, and business, or derived therefrom, are legally and equitably the property, assets, money, and business of the estate of the said bankrupt; that the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells and all others claiming any right, title, or interest through or under them now. hold and have possession of the said property, assets, money, and business in trust for the said estate, and that since the said'20th day of October, 1914, they have so held and have been conducting the said business wrongfully and without authority; that the title to the said property, assets, money, and business is now vested in said Richard J. Prendergast, trustee.
    “In short, it is quite impossible to conceive of a bolder attempt to dispose of the assets and business of an insolvent concern in the interests of those manipulating its affairs and against the interests of the creditors than is disclosed by the testimony in this case. To permit this attempt to be consummated would be a reproach upon the law and a perversion of justice. _
    “Now, therefore, it is hereby ordered, adjudged, and decreed, and the court now here doth hereby order, adjudge, and decree, as follows: ‘That the pretended sale and transfer of the said horses, wagons, harnesses, and other paraphernalia to William (Wilbur) H. Potter was and is fraudulent and void, and is hereby set aside; that the attempted transfer of the said route sheets was and is fraudulent and void and is hereby set aside; that said Richard J. Prendergast, as trustee for and under the said court in bankruptcy, holds in trust all right, title, and interest in and to all the said property, assets, money, and business now claimed, used, or conducted by, through, or under the name of Furniture City Tea Company; that said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells are now, and have been since October 20, 1914, in possession of said property, assets, money, and business, wrongfully and without authority; that the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, and all others claiming any right, title, or interest through or under them in and to the said property, assets, money, and business, now hold and have possession of said property, assets, money, and business, and exercise said claim, right, title, and interest, in trust for the said estate in bankruptcy; that the said Richard J. Prendergast, trustee, is entitled to immediate possession of said property, assets, money, and business.
    “ ‘Further ordered, adjudged, and decreed that said Richard J. Prendergast, trustee, shall take, and he is hereby fully authorized and empowered to take, immediate possession of all of the said property, assets, money, and business, of whatsoever kind and nature and wheresoever found or located, including all the horses, wagons, harnesses, sleighs, and other paraphernalia formerly used in the business of the De Witt-Potter Company, including also all horses, wagons, and other property taken in exchange therefor or in replacement thereof, and the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, and each and all their employees, agents, attorneys, and representatives, and all others claiming through or under them, are hereby ordered to surrender possession and to turn the same over to the said Richard J. Prendergast, trustee, immediately upon demand and upon exhibiting a certified copy of this decree. The said Richard J. Prendergast, trustee, is further hereby fully authorized and empowered to hold the said property, assets, moneys, and business as a part of the assets of the said De Witt-Potter Company, bankrupt, and to dispose of said property, assets, money, and business according to the orders, rules, and regulations of the said court in bankruptcy and according to the law in such case made and provided, and until said business is so disposed of, or until said trustee is otherwise ordered and directed by the said court in bankruptcy, said Richard J. Prendergast, as trustee, is hereby authorized and empowered to conduct and maintain the said business of said Furniture City Tea Company as a going concern, with full authority and power in the premises.
    “ Tt is further ordered, adjudged, and decreed that the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells and each and all of their employees, agents, attorneys, and representatives, and any one claiming any right, title, or interest through or under them, shall be, and they are hereby, permanently restrained and enjoined from interfering in any manner with the possession of the said trustee, with his conducting of the said business, or with his disposal of the said property, assets, money, and business, under the terms of this order and decree or under the direction of the said court of bankruptcy; to this end, the above-named parties and all of them are hereby permanently restrained and enjoined from taking, converting, appropriating, or disposing of any of the said property, assets, money, and business, and from otherwise diverting, destroying, depreciating or depleting the said property, assets, money, and business, or the value thereof in the hands of the said trustee.
    “ ‘Further ordered, adjudged, and decreed chat said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, and their and each of their servants, employees, representatives, and attorneys, shall, and they are hereby ordered to, disclose and account to said Richard J. Prendergast, trustee, and in such manner as may be directed and required by said court in bankruptcy, for any and all assets of De Witt-Potter Company or of its. successor, the Furniture City Tea Company, that may have come to their knowledge or possession, and that any such assets so accounted for or acquired after disclosure' are, and shall be administered as, a part of said estate in bankruptcy; that said Richard J. Prendergast, trustee and intervening complainant aforesaid, recover his costs in this suit sustained of and from the said E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, the same to be taxed, and that he have execution therefor.
    “ ‘It appearing that the defendants John Ripstra, William Dennison, Nicholas Voss, Albert Remelts, and Shirley Teachout were not knowingly or intentionally parties to the aforesaid conspiracy and fraud of E. Bert Potter, William (Wilbur) H. Potter, and John E. Rennells, no costs shall be taxed against them, but they are hereby held subject to the provisions and requirements of this decree as to disclosure, accounting, and injunction.’ ”
    From this decree, defendants William H. Potter and E. Bert Potter have appealed.

       On the question of participation by creditor in fraud of a debtor which will mate a transfer to pay or secure his debt invalid as to other creditors, see note in 31 L. R. A. 609; 32 L. R. A. 71.
      On the general doctrine of necessity of participation in fraudulent conveyance, see note in 32 L. R. A. 33.

   Kuhn, C. J.

(after stating the facts). By elaborate argument at the hearing and in well-prepared briefs counsel for the appealing defendants earnestly contend that these findings of the trial judge and the relief granted were without justification, and that there was no testimony to warrant the conclusion that these parties were engaged in a conspiracy to defraud creditors, but that rather the parties acted honestly in their dealings and established the new business, to wit, the Furniture City Tea Company, not with the idea of taking over the business of the De Witt-Potter Company, but for the legitimate purpose of establishing a new business and getting their customers wherever they could. With these contentions we cannot agree. This record cannot be read, in our opinion, without irresistibly coming to the conclusion that the alleged sale and transfer of the horses, wagons, and harnesses in July, 1914, was fraudulent in fact. Clearly the sale was made when the De Witt-Potter Company was insolvent ; it was made to the father of one of the partners and an employee of the firm, who knew, or ought to have known, of its financial condition. It also appears that the sale was made for an inadequate consideration. It appears that property worth $1,155 was sold for $700. It is claimed that the defendant William H. Potter had loaned the De Witt-Potter Company the sum of $700, that this loan was made in two installments of $800 and $400, respectively, in the months of February and March, 1914, and that the De Witt-Potter Company gave William H. Potter its note or notes to cover that amount. It appears that on March 1, 1914, the De Witt-Potter Company gave the Musselman Grocer Company a financial statement for the purpose of securing credit, and, according to this statement, William H. Potter was not a creditor of the firm. Furthermore, the books of the company fail to show that William H. Potter was a creditor to any amount, although the alleged transfer of property was carefully recorded. The horses and wagons did not change possession after the sale, and no creditor was given any notice of them, and the bill of sale was never recorded, and did not make its appearance until after the bankruptcy, and Mr. Voss, one of the drivers, testified that Mr. Rennells told him that it was dated back.

Late in September following the sale of the horses, etc., we find negotiations pending for the purchase of the little grocery stock at 609 Lyon street, in which negotiations John E. Rennells, Bert Potter, and William H. Potter are active. The circumstances, which the record discloses took place at the old store and at the new place of business, in our opinion clearly indicate that this whole move was carefully planned and premeditated. On the evening of October 19th, when the drivers came to the office, they were paid for one day’s work, and were told by Mr. Rennells that the De Witt-Potter Company was going to close up, that they would not be needed any longer, and that they could get a job at the Furniture City Tea Company if they would report at 609 Lyon street the next morning. In the meantime this little grocery business had been transformed into a tea and coffee store, prize tickets had been printed, and other preparations had been made to start the business full fledged as a tea and coffee store on the 20th. It is unnecessary for the purposes of this opinion to attempt to review all the circumstances and facts which sustain the theory that the change was not'sudden, unexpected, or unpremeditated. It is sufficient to say that, as a result of these acts, the De Witt-Potter Company was forced into bankruptcy, and what assets were left to the estate had to be sold for about $1,300, and there was thus left less than $1,500 to pay debts amounting to more than $12,000.

We think it is clear that fraud permeated this entire transaction and every detail of it, that the findings and conclusions of the circuit judge are fully justified, and agree with his conclusion that “to permit this attempt to be consummated would be a reproach upon the law and a perversion of justice.”

Considerable complaint is made because the decree did not provide for the payment of the debts and obligations of the Furniture City Tea Company and the claims of Mr. William H. Potter. The lower court found and decreed that the Furniture City Tea Company is the í)e Witt-Potter Company under a new name, which, as we have already said, we believe the evidence fully justified. William H. Potter and all others who had dealings with this bankrupt, if they have any claim, should go into the bankruptcy court and have their rights there determined.

It is also contended by the appellant that the bankruptcy act was not properly in issue in this case, because it appears that the bill of complaint was filed in October, 1914, and the petition for bankruptcy was not filed until in November, 1914, and that the trustee in bankruptcy should have been brought before the court by way of supplemental bill, and not by way of amendment to the original bill. In the case at bar the trustee, after having been authorized to do so by the bankruptcy court, petitioned the lower court for the right to intervene, and this right was granted by an order of the court. See Stone v. Ingham Circuit Judge, 105 Mich. 234 (63 N. W. 79); Earl v. Jacobs, 177 Mich. 163 (142 N. W. 1079). The intervener having by leave of the court become a party, he becomes suchi for all purposes of the suit, and thus carries with him his character as trustee in bankruptcy. 16 Cyc. p. 203.

The rule with reference to a supplemental bill is thus stated by Mr. Jennison in his work on Chancery Practice, p. 359:

“A supplemental bill is used for the purpose of supplying some irregularity or defect discovered in the frame of the original bill,-or in some proceedings under it, or where by an event subsequent to the commencement of the suit a new interest in the matter in litigation is claimed by an existing party to the suit, or a new party claims, but not by mere operation of law, the interest which was claimed by an existing party.”

The trustee in bankruptcy was a new party claiming only such interest as acquired by mere operation of law, in which case, in our opinion, it is not necessary that a supplemental bill be filed, it appearing that, aside from the adjudication in bankruptcy and the trustee’s election and qualification as such, the facts set up by the complainant’s second pleading are facts which existed at the time the original bill of complaint was filed, but which were not then known to the complainant, for the reason that they were concealed by the debtors themselves. Under these circumstances it is entirely proper to present them to the court by way of amendment instead of by supplemental bill.

We are of the opinion that the trial judge has reached an equitable and just conclusion, and therefore affirm his decree, with costs to the appellee.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    BISCHOFF v. HARRIS.
    1. Breach of Promise of Marriage — Evidence—Admissibility.
    In actions to recover damages for breach of promise of marriage, aggravated by seduction, a wide range of inquiry as to the conduct of the parties during the existence of the claimed contract, as well as the causes attending the breaking of the engagement, is permissible.
    2. Same — Seduction—Damages—Instructions.
    In an action to recover damages for breach of a marriage promise, aggravated by seduction, where tbe theories of the parties are simple and are stated in their essentials by the court in its charge, it is the duty of a party desiring a more explicit statement of his claims to present reguests therefor to the court.
    3. Same — Damages—Excessive Veedict.
    In an action to recover damages for breach ''of marriage promise, aggravated by seduction, a verdict for ?5,000 held, excessive to the extent of 2.500.

    Error to Wayne; Hally, J.
    Submitted April 17, 1917.
    (Docket No. 57.)
    Decided September 27, 1917.
    Case by Ellen R. Bischoff against Frank R. Harris for breach of promise of marriage. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      James H. Pound, for appellant.

      William Henry Gallagher and Francis T. McGann, for appellee.

       On measure of damages for breach of promise to marry, see comprehensive note in 41 L. R. A. (N. S.) 840. Particularly as to excessiveness of damages, see page 853 of above note.

   Kuhn, C. J.

This is an action to recover damages for breach of promise of marriage, aggravated by claimed seduction of the plaintiff by the defendant. The trial resulted in a verdict for the plaintiff in the sum of $5,000, upon which judgment was duly entered.

At the time of the trial plaintiff was a widow about 41 years of age and the mother of two children. The defendant, a brother of plaintiff’s sister’s deceased husband, was a man of about 37 years of age. While they were relatives, they had seldom been together, and knew little of each other until in November, 1911, a year and a half after the death of plaintiff’s husband, when the events which led up to this litigation commenced. At this time they met by chance in the office of the township -treasurer, and the defendant called upon the plaintiff a short time later as the re-suit of an invitation extended to him by her. From this time on until the last of the following April they continued to go together, at which time all relationship of an affectionate nature ceased, and the defendant discontinued his calls upon her. That he asked her to marry him soon after he called upon her is not disputed, nor is the fact that in the latter part of November intercourse commenced between the parties. The essential matters in dispute are whether or not the plaintiff accepted the offer of marriage made by the defendant, whether or not the defendant later repudiated the offer and refused to marry the plaintiff, and whether or not intercourse was indulged in as a result of the promise of marriage.

The plaintiff’s claim was, and proof was offered tending to show, that the courtship began in November, and in a few weeks culminated in an engagement to marry, the marriage to occur about New Year’s following; that shortly after the engagement the defendant sought the help of plaintiff in procuring a strip of property necessary for ready access to his own; that she readily consented to help him, and advanced her own money to purchase the property in question, procured a deed for the same, and then executed and delivered a deed to the defendant; that he failed to reimburse her, and that she complained to him concerning it, whereupon he rebuked her for distrusting him, which, it is her claim, was their first disagreement; at Christmas time the parties came to Detroit to buy presents, and the plaintiff, desiring to purchase defendant a present, left him, agreeing to meet him later; she did meet him, and found him sullen and angry and suspicious of her absence, which resulted in another misunderstanding, which was smoothed over on Christmas Day, when the presents were exchanged; that between Christmas and New Year’s the defendant suggested that the plaintiff lighten her household duties in preparation for the marriage by obtaining hired help; that they went to her aunt’s home, where they announced that they were going to get married, and through this aunt obtained a hired girl, who came to her house soon after New Year’s; that on Sunday following New Year’s, 1912, the defendant came to the plaintiff’s house unexpectedly and discovered there a Mr. Smiley, who had bought the plaintiff’s husband’s business; that after Smiley left the defendant became suspicious, and the plaintiff explained to him that Smiley had been there to look over some papers in connection with the business, and that defendant charged her with having had improper relations with Smiley, and, after a long and bitter quarrel, demanded of her that she submit her person to him in order to prove her fidelity to him, to which demand she finally yielded; that when the hired girl came the plaintiff announced her readiness to marry, but the defendant demurred, saying that he understood that the plaintiff had no dower in her husband’s estate, and suggesting that she give him $6,000 in cash, of which she was custodian as administrator of her husband’s estate; this she refused, and the defendant thereupon asked her for a copy of her husband’s will to have his attorney see if she could get her dower interest; that the defendant said that he would not marry her unless the $6,000 was forthcoming ; several times thereafter they had quarrels of more or less serious nature, and that during'one of them the defendant threatened to kill the plaintiff, and tried to get a revolver that she kept in her house; that she took the revolver and gave it to her little boy, who ran from the house with it, and she followed him to a' neighbor’s; that finally plaintiff offered to sign off all rights in his property if he would marry her for 24 hours and she allow him to divorce her then, which lie also refused to do.

The defendant’s claim of what occurred during the interval of time from November, 1911, to the last of April, 1912, differs materially from the claims of the plaintiff. It was his claim that he tendered marriage to the plaintiff, but was flatly rejected for the reason that, by marrying, the plaintiff would lose all rights in her husband’s estate in accordance with the terms of the will of her husband. He denies that he demanded $6,000 from her as a condition of the marriage to be entered into by him and that the intercourse had between them was preceded by a promise of marriage; that soon after he commenced going with her she invited him to her house to a party by a note delivered by her little boy, in which she asked him to tell his people that he would not be back that night; that after the party he did spend the night with the plaintiff, and they had intercourse; and that thereafter he spent a large portion of his nights with the plaintiff.

The issues of fact were presented to the jury in a clear charge, with the result as above indicated. The case is brought to this court, and 103 assignments of error are urged by the learned counsel in support of his claim that the judgment should be reversed. In the discussion of this large number of assignments of error counsel, for convenience, has grouped them as follows: (1) Errors during the course of the trial in the admission and rejection of testimony and the ruling of the court thereon; <2) refusal of the requests to charge of defendant, were refused, and their modification, where so treated; (3) errors in the charge itself; (4) error in the proceedings after the verdict in the motion for a new trial and the decision thereupon; (5) error in not reducing the amount of the verdict.

In the consideration of the first group of assignments of error it should be stated that a number of the assignments are based upon no objection in the record. A wide range of inquiry was permitted by the circuit judge as to the conduct of the parties during the existence of the claimed contract as well as the causes or circumstances attending the breaking of the engagement. This we think is proper in cases of this kind. Simmons v. Simmons, 8 Mich. 318; Vanderpool v. Richardson, 52 Mich. 336 (17 N. W. 936) ; Rutter v. Collins, 96 Mich. 510 (56 N. W. 93).

With reference to those assignments of error as to the admission and rejection of testimony where proper objection was made, it would not be profitable to enter upon the discussion of the various claims made by counsel, but it is sufficient to say that we have examined these various assignments, and do not believe that it can be said that prejudicial error was committed by the court in his rulings with reference thereto.

The learned trial judge, in a clear and comprehensive charge, submitted the questions of fact to the jury. Counsel for defendant strongly urges that the court did not set forth the theory of the defendant with the same clearness that characterized his exposition of the theory of the plaintiff. A reading of this charge does not impress us that the charge is fairly subject to this criticism. The theories of the parties were simple and are stated in their essentials. If defendant’s counsel desired to have a more explicit statement of his claims presented, it is his duty to present requests to the court.

In the denial of the motion for a new trial the trial judge said:

“Defendant denied the existence of a promise to marry, and said that the seducing was as much upon her part as it was upon his. The testimony disclosed that he is worth in the neighborhood of $40,000. This consists entirely or almost entirely of land.
“A motion was made for a new trial, and at first I was impressed with the idea that the verdict was excessive, because in this case with a mature woman it was my notion that little respect should be given to the story of seduction.
“I have desired, if it was legally possible to do it, to cut the verdict in two. I have concluded, however, that I have no such power. I have examined cases in Connecticut, Illinois, Indiana, Iowa, Minnesota, Nebraska, New York,- Tennessee, Texas, and Wisconsin, and the overwhelming weight of authority is that in this class of cases the amount of the verdict, unless it clearly is the result of passion, prejudice, or a reckless disregard of the evidence, rests in the sound discretion of the jury.”

In discussing the question of damages, the trial judge in his charge said:

“Now, you have not any right, as you have already been told, if you get to the question of damages, to consider that this man can afford to pay a certain amount, looking at the thing entirely from this point of view. The testimony that was offered respecting his financial position and his financial standing, the testimony that was offered respecting the conduct and the habits and the life history of these two people, is all offered and given and permitted to come into court so that you may have before you such testimony as will permit you to judge rightfully. A woman who. is about to marry, or who has a promise to marry a man that is worth $100,000, and is deprived of consummating that marriage by something that that man has done, or by his refusal to do it, has been deprived of more, in a worldly way, than the woman who is engaged to marry a man who is worth $10.”

We are of the opinion that this illustration referring to the man who is worth $100,000, under the circumstances of this case, was unfortunate, for the reason that defendant’s pecuniary responsibility was one of the questions in dispute. As the learned trial judge stated in his reasons for denying the motion for a new trial, the testimony fairly indicated that he was worth approximately $40,000 in real estate.

A careful studying of this record leaves the impression upon us, as it seems to have upon the trial judge, that something other than the mere testimony in the case must have actuated the jury in giving the amount of the verdict that they did. It is true that a verdict should not be lightly disturbed in cases of this kind, but we cannot escape the conclusion that to allow this verdict to stand in its present amount would be a palpable miscarriage of justice. We are inclined to the view, as was the trial judge, that the verdict should be reduced at least one-half, and unless counsel for plaintiff within 30 days elect to accept a reduction of the verdict to the sum of $2,500, a new trial will be granted, with costs to the appellant. In case counsel elect to accept the reduction of the verdict, the judgment will stand affirmed at that amount, with costs to the appellant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Ostrander, J.

text:
    POLLOCK v. McCARTY.
    1. Deeds — Life Estates — Escrows—Intent.
    Wliere a contract for a leas© for the lifetime of the lessor, containing a provision for a deed thereafter, was made, and a warranty deed was delivered in escrow to a third person, to take effect at the death of the lessor, held, that it was the lessor’s intention, that if the lessees performed the contract and survived her, they should, upon her death, have the fee of the land, she, in the meanwhile, to own and control the property herself and retain all interest therein except a determinable leasehold.
    2. Same — Delivery—Time of Taking Effect.
    The test of a conveyance is whether it can be said that the delivery of the deed is such as to convey a present interest in land.
    3. Same.
    One of the essential requisites to the validity of a deed, so as to pass' title, is delivery.
    4. Same.
    The act of delivery of a deed is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by acts or words, or both, which shows an intention on his part to perfect the transaction, by a surrender of the instrument to the grantee, or to some third person for his use and benefit.

    Appeal from Barry; Smith, J.
    Submitted April 10, 1917.
    (Docket No. 114.)
    Decided September 27, 1917.
    Bill by James W. Pollock and others against Alonzo McCarty and others to set aside a deed. From a decree dismissing the bill, plaintiffs appeal.
    Reversed, and decree entered for plaintiffs.

      Colgrove & Potter, for plaintiffs.

      Thomas Sullivan, for defendants.

       For a discussion of the question as to whether delivery of deed to third person or for record by grantor, is a delivery to the grantee, see notes in 54 L. R. A. 365; 9 L. R. A. (N. S.) 224; 38 L. R. A. (N. S.) 941.
      As to delivery of deed to third persons to be delivered to grantee after grantor’s death upon performance of conditions by grantor, see note in 9 L. R. A. (N. S.) 317.

   Ostrander, J.

The opinion of the learned trial judge so completely and briefly states the facts that I adopt it:

“The plaintiffs in this case are the nephews of Catherine Rouse, and file this bill as her sole and only heirs at law to set aside a deed made on the 27th day of November, 1901, to Alonzo McCarty, conveying to him the east half of the northeast quarter of the southwest quarter, and the east 30 acres of the southwest quarter of the northwest quarter, all on section 33, township 8 north, range 9 west, Barry county, Mich., containing 50 acres of land, more or less, according to the United States survey.
“The bill alleges that the said Catherine Rouse at the date of said conveyance was aged, infirm, and mentally incompetent to transact business, and that she was easily influenced, and that the defendant practiced upon her fraud and deceit and procured the said deed by unduly influencing her to make the same, and that it was without consideration, was never delivered, and was testamentary in its character, and should, be set aside. The answer denies that she was incompetent or that she was unduly influenced to make said deed, and claims that it was an honest transaction, and that the deed should stand.
“Proofs were taken in the case on the part of the plaintiffs, but there was no evidence offered to show the mental incompetency of Catherine Rouse, or that she had been influenced to make such a deed by fraudulent practices and deceit. Plaintiffs rest their case wholly on proof of the contract which accompanied the said deed and the proof that she had later been by the probate court of Barry county adjudged incompetent, and a guardian had been appointed for her, and that later she had been adjudged insane by the said court and. committed to the asylum for the insane at Kalamazoo, Mich.
“I think it will be well here to state first that the deed was made November 27, 1901; that a guardian was appointed for said Catherine Rouse October 15, 1910; that she was admitted to the asylum for the insane at Kalamazoo, July 25, 1911, and that she died at the asylum January 27, 1915.
“After the plaintiffs introduced the contract and the probate files showing the appointment of a guardian and her commitment to the asylum and her death, they rested their case, and the defense also rested, so that the foregoing is substantially all the proof that was introduced at the hearing.
“It is the plaintiffs’ contention that the deed in question was without consideration, or at least without adequate consideration; that it was testamentary in its character; and that it was never delivered; and that no title passed to the defendants in the case, the deed being wholly inoperative.
“The contract in this case is as follows:
“ ‘It is hereby agreed, between Catherine Rouse, of the city of Hastings, county of Barry, and State of Michigan, party of the first part, and Alonzo McCarty and Loammi McCarty, of the township of Rutland, in said county and state, parties of the second part, as follows: The said party of the first part, in consideration of the rents and covenants herein specified, does hereby let and lease to the said parties of the second part the following described premises, situated and being in the township of Rutland, county of Barry, and State of Michigan, to wit: The east half of the northwest quarter of the southwest quarter, and the east 30 acres of the southwest quarter of the northwest quarter, all in section 33, town 3 north, range 9 west, containing 50 acres of land, more or less, according to the United States survey thereof, for the term of the life of the said first party from and after the 27th day of November, 1901, on the terms and conditiofis hereinafter mentioned, to be occupied for farming purposes: Provided, that in case any rent shall be due and unpaid, or if default shall be made in any of the covenants here■in contained, then it shall be lawful for the said party of the first part, her certain attorneys, heirs,' representatives, and assigns, to re-enter into, repossess the said premises, and the said parties of the second part, and each and every other occupant, to remove and put out.
“ ‘And the said parties of the second part do hereby hire the said premises for the term of * * * as above mentioned, and does covenant and promise to pay to the said party of the first part, her representatives and assigns, for rent of said premises for said term, the sum of fifty dollars each year, payable as follows: Twenty-five dollars on April 1st and twenty-five dollars on November 1st of each year. It is agreed that this contract expires with the death of first party, and the second party, Alonzo McCarty, receives a deed of said premises; that said deed is made and executed and is now held by A. E. Kenaston, and the same is to be delivered, to said Alonzo McCarty upon the termination of this lease in case the terms of the contract have not been violated. It is agreed that said second parties must pay fifty dollars and furnish first party three bushels of potatoes and one bushel of sweet apples on each and every year, and shall also pay the taxes, and said contract shall not be considered violated if said payments shall he made within thirty days after they become due. If said contract shall not he fulfilled, said premises shall revert back to said first party and said A. E. Kenaston is hereby directed to deliver up said deed to first party; it being understood and agreed that if this contract is complied with said property shall become the property of said Alonzo McCarty.
“ ‘Said parties of the second part further covenant that they will not assign nor transfer this lease, or any part thereof, without the written assent of said party of the first part; and also that said parties of the second part will at their own expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair, and at the expiration of the term the same shall be fulfilled as before set forth.
“ ‘And the said party of the first part does covenant that the said parties of the second part, on paying the aforesaid installments and performing all the covenants aforesaid, shall and may peacefully and quietly have, hold, and enjoy the said demised premises for the term aforesaid.
“ ‘The covenants, conditions, and agreements made and entered into by the several parties hereto are declared binding on their respective heirs, representatives, and assigns.
“‘Witness our hands and seals this 27th day of November, 1901.
‘“Catherine Rouse. [L. S.]
“‘Alonzo McCarty. [L. S.]
“ ‘Loammi McCarty. [L. S.]
“ ‘Signed, sealed, and delivered in presence of:
“This contract has the following indorsements:
“ ‘Paid $25 March 25, 1902
Paid 25 ..Nov. 30, 1904, in full to date
Paid 25 ..Apr. , 1905
Paid 25 ..Nov. 2, 1905
Paid 25 ..Apr. 6, 1906
Paid 25 ..Nov. 17, 1906
Paid 25 ..Apr. , 1907
Paid 25 . .Nov. 15, 1907
Paid 25 . .Apr. 21, 1908
Paid 25 ..Dec. 5, 1908
Paid 25 ..Mar. 24, 1909
Paid 25 ..Dec. 13, 1909
Paid 25 ..Apr. 8, 1910
Paid 25 ..Nov. 7,1910
Paid 25 ..Apr. 7, 1911
Paid 25 ..Nov. 28, 1911
Paid $25 ................................Apr. 12, 1912
Paid 25 ................................Dec. 19, 1912
Paid 25 ................................Mar. 24, 1913
Paid 25 ................................Nov. 19, 1913
Paid 25 ................................Apr. 18, 1914
Paid 25 ................................Nov. 23, 1914’
“The deed in the case is an ordinary warranty deed, duly executed before Alonzo E. Kenaston, notary public, properly witnessed, and need not be set forth. This deed and the lease were left with Mr. Kenaston, who placed them in an envelope and indorsed on said envelope the following:
“ ‘Deed from Catharine Rouse to Alonzo McCarty to he delivered at death of Mrs. Rouse. Also lease deposited herein containing conditions upon which deed is made. 11 — 27—01.’
“The proofs show that Alonzo E. Kenaston died several years ago and preceding the death of Catherine Rouse, and that these papers, the deed and contract and envelope in which they were deposited were turned over to A. A. Anderson, who was appointed administrator of his estate.
“The proof shows that the terms of the contract were fully carried out by said Alonzo McCarty.
“The proof also shows that Loammi McCarty died on the 10th day of January, 1909.”
The court was of opinion that the only question in the case is whether the deed was delivered, answering the. question in this way:
“I have given this case very careful consideration, have made personal investigation of the cases cited by counsel for the respective parties in their very exhaustive briefs, and I am of the opinion that there was a legal delivery of the deed to the defendants by the delivery of the same to Mr. Kenaston to be held until the death of Catherine Rouse.
“It is my judgment that, the contract having been performed on the part of the defendant, that he is entitled to have this deed delivered to him.”

A decree dismissing the bill was entered, and plaintiffs have appealed.

I am of opinion that the decree should be reversed, and one entered for plaintiffs in conformity with the prayer of the bill. I have no doubt that Catherine Rouse intended that the McCartys, if they performed their ' contract and survived her, should, upon her death, have the fee of the land. She intended meanwhile to own and control the property herself, to retain all interest therein except the determinable leasehold interest which she created. Her provision was for her purpose inadequate, because her intention could be given effect only by a devise of the land. There is no idea here of a sale and purchase of land, nor any of the transfer of a present interest in the land, with deferred enjoyment thereof. The lease is itself conclusive evidence of this intention. It is inconsistent with the idea that any interest in the land passed presently from the grantor to the grantee, except the leasehold interest. The lease, the deed, and the delivery of the deed are to be considered in arriving at the owner’s intention.

The test is whether it can be said that delivery of the deed was such as to convey a present interest in the land. Culy v. Upham, 135 Mich. 131 (97 N. W. 405, 106 Am. St. Rep. 388) ; Felt v. Felt, 155 Mich. 237 (118 N. W. 953) ; Cooper v. Cooper, 162 Mich. 304 (127 N. W. 266); Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. St. Rep. 291); Loomis v. Loomis, 178 Mich. 221 (144 N. W. 552) ; Reed v. Brown, 184 Mich. 515 (151 N. W. 592).

“One of the essential requisites to the validity of a deed, so as to pass the title, is delivery. Even although in all other respects it has been' properly executed, yet it does not follow that the title to the property passes; the grantor yet retains control of the instrument, and may deliver it, absolutely, conditionally, or not at all. The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee and an acceptance by him, but it is that act of the grantor, indicated either by acts or words or both, which shows an intention on his part to perfect the transaction,.by a surrender of the instrument to the grantee, or to some third person for his use and benefit. The whole object of a delivery is to indicate an intent upon the part of the grantor to give effect to the instrument.” Thatcher v. St. Andrew’s Church, 37 Mich. 264, 268, 269.

Decree reversed, and decree here for plaintiffs.

Kuhn, C. J., and Stone, Bird, Moore, Steere, .Brooke, and Fellows, JJ., concurred.