text:
    BLY v. BRADY.
    1. Written Instruments — Pleading and Proof — Defenses — Fraud.
    Plaintiff brought assumpsit in justice’s court upon a written lease, but did not file with the justice the instrument sued upon. Defendant pleaded the general issue, with notice of set-off, recoupment, and failure of consideration, and, upon his appeal from an adverse judgment, added a notice that he would insist upon the further defense that his signature to the lease, if it was in fact signed by him, was obtained without consideration. Plaintiff, upon the trial, offered proof of the execution of the lease, and introduced it in evidence. Held, that evidence that defendant was induced to sign by fraudulent representations as to the character of the paper was competent under the pleadings.
    2. Same — Prima Facie Case — Burden of Proof.
    In an action upon a written lease, plaintiff, by proving the execution of the instrument and offering it in evidence, makes out a prima facie case, and the burden is upon defendant, who seeks to avoid its effect under a claim that his signature was fraudulently obtained, to establish the fraud.
    Error to St. Joseph; Yaple, J.
    Submitted April 15, 1897.
    Decided May 28, 1897.

      Assumpsit by Kinyon Bly and Alexander Taylor against J. W. Brady, A. L. Guthrie, and Isaac G. Bliss, for rent. From a judgment for defendant Bliss, plaintiffs bring error.
    Reversed.

      L. B. Des Voignes and Howell & Carr, for appellants.

      H. O. Bliss and B. E. Andrews, for appellee Bliss.
   Moore, J.

This suit was commenced in justice’s court. “The plaintiffs declared verbally in assumpsit on all the common counts on a lease dated the 28th day of March, 1889, signed by Kinyon Bly, one of the above-named plaintiffs, and' by E. A. Palmer and C. A. Sherrod, which said E. A. Palmer and C. A. Sherrod have duly assigned their interest to Alexander Taylor, one of the above-named plaintiffs, which assignment is in writing and filed herein. Said lease is also signed by the said defendants.” The lease was not filed with the justice. After several continuances without pleading, a plea was interposed: “Now comes the defense, and declares the general issue, and notice of set-off, recoupment, and .failure of consideration.” The case was tried, and a judgment rendered in favor of the plaintiffs. The defendants appealed the case to the circuit court, where a more formal plea was entered on the part of the defendant Isaac G. Bliss. He pleaded the general issue, and gave notice “that, in addition to any other special defenses of which notice has been given by him, he will give in evidence, and insist in his defense, that his signature to the lease, contract, or other instrument upon which plaintiffs seek to recover against him in this action, if the same, was signed by him at all (which fact this defendant denies), was obtained without any consideration whatever.” The'trial resulted in a verdict for the defendant Isaac G. Bliss. The plaintiffs appeal.

Several errors are assigned. We think but two of them call for discussion. It was the claim of the plaintiffs that all the defendants signed the lease which was introduced in evidence, — Brady and Guthrie signing it the day it was written, and Bliss a few days thereafter at his home, — and evidence was given tending to establish their contention. It is the claim of Bliss that, after the lease was executed by the real parties thereto, and some time after Brady and Guthrie had taken possession of the store, Bly came to Bliss, when the latter was at work in his field, and asked him some questions as to the responsibility of Brady and Guthrie, and asked Bliss to sign a recommendation of Brady and Guthrie, and produced a paper which Bly claimed was a simple recommendation of Brady and Guthrie, and assured Bliss that he could in no way become liable by signing the paper, and would never hear of it again; that Bliss was about 70 years of age, and unable to read without glasses, and had no glasses with him, of which fact he advised Bly; that Bliss, acting upon and believing what Bly said was true as to the contents of the paper, signed it; that he would not have done so if he had been told he was signing a lease; and that nothing was said to him about a lease. He further testified that the first time he saw the lease, to know what it was, was at the trial in justice’s court, and that he never knew his name was on the lease until after he was sued. It is the claim of the plaintiffs that this testimony was incompetent under the pleadings, and they cite, Child v. Manufacturing Co., 72 Mich. 623; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Briesenmeister v. Supreme Lodge Knights of Pythias, 81 Mich. 525; Union Central Life Ins. Co. v. Howell, 101 Mich. 332.

The cases do not sustain the contention of plaintiffs. It will be remembered that plaintiffs did not file the lease with the justice of the peace at the time the declaration was made; and the record does not disclose that the defendant,' or any one acting for him, saw the lease after the suit was commenced until the lease was produced upon the trial, but does show that Mr. Bly refused to let the defendant Bliss see it. Under the pleadings the lease could not be introduced in evidence without first proving it. Colbath v. Jones, 28 Mich. 280; Bauer v. Wasson, 60 Mich. 194; Newton v. Principaal, 82 Mich. 271. This was recognized by plaintiffs on the trial, and it was not offered by them until they had offered proof of its execution. We think the following cases bear upon the question: Anderson v. Walter, 34 Mich. 113; Berringer v. Lake Superior Iron Co., 41 Mich. 305; Soper v. Peck, 51 Mich. 563; Child v. Manufacturing Co., 72 Mich. 623, — and that the court did not err in the admission of the testimony.

The plaintiffs asked the court to give the following request :

“When the defendant attempts to avoid the signing of this lease in question by claiming that he signed another paper, thinking it to be merely a recommend, and that the signing of such other paper was induced by the trick or misrepresentation of the plaintiffs, then the burden of proof shifts, and it devolves upon the defendant to show by a preponderance of testimony that he signed such other paper, claimed by him to be a recommend merely.”

The request was refused, and the court charged the jury as follows: „

“To entitle the plaintiffs to recover, they are required to prove their case by a fair preponderance of the evidence. The execution of the lease in question on the part of Brady and Guthrie is not disputed; but, before the plaintiffs can recover in this action, they must also prove, by a fair preponderance of the evidence, the execution of the lease on the part of the defendant Bliss, and the assignment by Palmer and Sherrod of their interest in the lease and rent to Taylor. If the plaintiffs have proved, by a fair preponderance of the evidence, that the consideration, in whole or in part, for the execution of the lease, on the part of Bly, Sherrod, and Palmer, was the, promise or agreement on the part of Bliss to execute the same on his part, and Bliss did execute it by signing the same, in pursuance of and to carry out his agreement, then Bliss would be liable on the lease, although he may not have signed it until after Brady and Guthrie executed it, and had commenced occupying the store; and if you further find that Palmer and Sherrod transferred their interest in the lease and the rent, before the commencement of this suit, to Taylor, then the plaintiffs are entitled to recover in this action for the rent of the store at the price stipulated in the lease, and the burden of proof of any payments on the rent, except such as are admitted by the plaintiffs, would<be upon the defendants.”

Plaintiffs claim this was error.

When the plaintiffs proved the execution of the lease, and offered it in evidence, they established a prima facie case, and, if no other proof was offered, were entitled to a verdict. The burden of proof is shifted by presumptions of law, presumptions of fact of the stronger kind, and evidence strong enough to establish a prima facie case. 2 Am. & Eng. Enc. Law, 656; People v. Swineford, 77 Mich. 582. To overcome the prima facie case made by the plaintiffs, the defense offered is that the signature to the lease was procured by fraud, and that no liability was incurred by the signing of it. We understand the rule to be, “He who alleges fraud must prove it.” 2 Am. & Eng. Enc. Law, 656; Miller v. Finley, 26 Mich. 249 (12 Am. Rep. 306); Robert v. Morrin, 27 Mich. 306; Darling v. Hurst, 39 Mich. 765; Brown v. Dean, 52 Mich. 267; Attorney General v. Ruggles, 59 Mich. 123; McArthur v. Oliver, 60 Mich. 605; Allison v. Ward, 63 Mich. 128; Peaslee v. Collier, 83 Mich. 549; Blanchard v. Moors, 85 Mich. 380; Zucker v. Karpeles, 88 Mich. 413. In Sloan v. Holcomb, 29 Mich. 153, where, in defense to a foreclosure suit, it was averred that the mortgage was procured by false representations, it was held that the burden of proving such representations was on the defendants. See Bostwick v. Benjamin, 63 Mich. 289. The charge of the court was error. The plaintiffs were entitled to have an instruction to the effect that, as the defense was' that the signature to the lease was obtained by fraud, the burden was upon the defendant to establish his. defense.

The other assignments of error do not require discussion.

Judgment is reversed, and a new trial granted.

Gbaht, Montgomeby, and Hookeb, Jj., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SPANISH RIVER LUMBER CO. v. CITY OF BAY CITY.
    1. Takes — Forest Products — How Assessed.
    Section 24 of Act No. 206, Pub. Acts 1893, which provides that assessments of property to one other than the owner shall show in what capacity it is assessed to him, does not limit the authority conferred upon the assessing officer by section 14, subd. 8, to assess forest products to the person “having .control” of the premises where the same are situated, so as to require him to ascertain whether the property is held by such person as agent, guardian, or otherwise.
    2. Same.
    That one who has control of a dock for the purpose of placing lumber thereon has sold part of the lumber placed upon it to another person, who is authorized to remove it, does not take from the former the control of that part of the dock containing the lumber sold, so as to prevent the assessment of such lumber against the seller, under Act No. 206, Pub. Acts 1893, § 14, subd. 8, providing that all forest products shall be assessed to the person having control of the dock where they are situated.
    Error to Bay; Maxwell, J.
    Submitted April 15, 1897.
    Decided May 28, 1897.

      Assumpsit by the Spanish River Lumber Company against the city of Bay City to recover a tax paid under protest.' From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      McDonell & Hall, for appellant.

      TJ. R. Loranger, for appellee.
   Hooker, J.

The plaintiff, a Canadian corporation, was engaged in the business of bringing logs from Canada, to be cut in the mills at Bay City, for the pur.pose of sale. It owned no premises or docks, and in 1893 it made a contract with Folsom & Arnold, owners of a sawmill and docks at Bay City, to saw, and pile upon their docks, for it, 10,000,000 feet of logs. This was done, and the lumber produced» therefrom was piled on the docks of Folsom & Arnold during 1893. In the spring of 1894 all of , said lumber remaining upon said dock was assessed as follows: “Personal lumber on Folsom & Arnold’s dock, $24,150; E. B. Foss & Co., same, $14,450.” The assessor testified that he made such assessment from a memorandum furnished by Mr. Carrington, plaintiff’s president, showing that, of said lumber, the plaintiff owned 2,106,900 feet of white pine and 1,880,810 feet of Norway, and that Foss & Co. owned 2,066,067 feet of white pine. The board of review struck out the item of $14,450, to Foss & Co., and added it to the plaintiff’s assessment, by changing the figures from $24,150 to $38,600. The assessor testified, that they were in doubt as to, the ownership; that Carrington claimed that Foss owned it, and Foss claimed that it had not been paid for, and did not belong to Foss & Co.; and the board, after hearing the statement and arguments of the parties and counsel, took the action stated. The tax was paid under protest, and this action was brought to recover the amount.

The court seems to have been of the opinion that the assessment was properly made to the person who had control of the dock, under subdivision 8, § 14, Act No. 206, Pub. Acts 1893, which provides that—

“Personal property of non-residents of the State, and all forest products owned by residents or non-residents or estates of deceased persons, shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, mill, dock, yard, piling' ground, place of storage, or warehouse where such property is situated in such township, on the second Monday of April of the year when the assessment is made, except that, where such property is in transit to some place within the State, it shall be assessed in such place.”

Counsel for the plaintiff offered to show that the property represented by the item of $14,450 was the property of E. B. Foss & Co., upon the claim that, if it was, the assessment was void, because the plaintiff was not described as agent in the assessment, under section 24 of said Act No. 206, which provides that “property assessed to one other than the owner shall be assessed separate from his property, and shall show in what capacity it is assessed to him, whether as agent, guardian, or otherwise. ” This testimony was excluded. The court allowed the plaintiff to offer testimony upon the question of the control of the dock. • e

The record indicates that a question of title was raised in regal’d to this lumber. ‘The board found it difficult to decide the question of ownership, and assessed the property to the one it determined to be in control of the dock. This the law permitted, if it did not require. We are of the opinion that the assessment was not void, although Foss & Co. were the owners. It was not necessary that the assessment should be made against the plaintiff as agent, because the board did not assume to assess the lumber as the property of persons other than the plaintiff, but did assess it under subdivision 8, § 14, expressly permitting its assessment to the custodian as owner.

It is contended that this lumber was not assessed to the one having control of the dock, because it had been sold to Foss & Co., who were authorized to remove it, and that from the time of such sale the control of that portion of the dock was in them. The plaintiff hired Folsom & Arnold to cut a large amount of lumber, and pile it upon Folsom & Arnold’s dock for its use. At the plaintiff’s convenience, lumber was removed and sold, and presumably other lumber piled in its place. There would seem to be more reason in saying Folsom & Arnold, who owned the dock, controlled it, than that Foss & Co. did; but it is not unreasonable to conclude that the dock was not under the actual control of either, but of the plaintiff, to whose purposes it was devoted. If, as would seem reasonable, the dock is to be considered as appurtenant to the sawmill, such a conclusion would be consistent with the legislative view of this subject, shown by section 14, subd. 1, which provides that — •

“All goods and chattels situate in some township other than where the owner resides shall be assessed in the township where situate, and not elsewhere, if the owner or person having control thereof hires or occupies a store, mill, dock, yard, piling ground, place for sale of property, shop, office, mine, farm, place of storage, manufactory, or warehouse therein, for use in connection with such goods and chattels: Provided, that the procuring any such property to be manufactured upon contract shall be deemed the hiring a mill or manufactory within the meaning of this section.”

Carrington testified that the plaintiff had the use of the dock, as a place of storage. In our judgment, the undisputed facts show that the board lawfully assessed this lumber to the person in control of the dock, regardless of the question of title, which was in dispute. Plaintiff’s remedy, if it has any, is against Foss & Co.

The judgment is affirmed.

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


author:
Grant, J.
      Moore, J.

text:
    WARD v. NESTELL.
    1. Tax Titles — Husband and Wife.
    A husband, while in joint occupancy of land with his wife, cannot acquire a tax title valid as against her.
    2. Trial — Evidence—Contentions of Counsel.
    In an action of ejectment by a wife’s administrator against the heirs of her deceased husband, defendants’ attorney offered in evidence a tax deed acquired by the husband in the lifetime of the wife, stating that he proposed to follow it up by proof of adverse possession. The admissibility of the deed was questioned, and the court inquired if defendants proposed to build up title under the deed, and also asked if there was any claim that the statutory period began to run from the death of the wife. Defendants’ counsel refused to concede that they relied wholly upon the deed, or to base their claim solely on adverse possession subsequent to the death of the wife, but stated that they would ‘ ‘ build title of possession up under the deed from the time it was given.” The court thereupon rejected the evidence, and directed a verdict for the plaintiff. Held, that defendants should have been allowed to introduce their proofs relating to adverse possession. Grant, J-., dissenting.
    3. Adverse Possession — Color of Title.
    Adverse possession of land need not, under 3 How. Stat. § 8698, be based upon color of title, nor need the possession have been hostile in the first instance, but it is sufficient if it continues for the requisite time, although the original entry was by consent of the owner and without shadow roí title.
    Error to Clinton ;• Daboll, J.
    Submitted April 15,1897.
    Decided May 28, 1897.
    Ejectment by Alfred B. Ward, administrator of the estate of Clarissa A. Nestell, deceased, against Jane Nestell and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Clarissa A. Nestell purchased the land in controversy November 1, 1866, and her deed was placed upon record the same day. She also had a tax deed for the taxes, of 1865, dated June 14, 1871, and recorded June 24, 1871. The land consisted of 20 acres, and was used and occupied by her husband as a part of the farm, he owning the title to the rest of the land. Mrs. Nestell died in 1880. Mr. Nestell and his children continued in the occupancy of this farm after her death, the same as before, until his death, in March, 1896. The barns were situated upon this 20 acres, the dwelling house being situated across the highway on his land. They occupied the farm together, he cultivating the farm and receiving the profits therefrom. No administrator of her estate was appointed until after his death, when plaintiff was appointed and instituted this suit. Mr. Nestell left a will devising a life estate to the defendant Jane, and the remainder in fee simple to the defendant Fred. Plaintiff rested his case upon the recorded evidence of title and proof of occupancy, as above stated. Denial of possession was conceded. Defendants offered a tax deed to Hiram Nes J tell for the taxes of 1866, dated June 14, 1871, and recorded July 16, 1885. The court excluded the deed, holding that the husband, while in joint occupancy of land with his wife, cannot acquire a tax title valid as against her, and directed a verdict for the plaintiff.

      Spaulding & Norton and Nedeiva & Walbridge, for appellants.

      Lyon & Looting, for appellee.
   Grant, J.

{dissenting; after stating the facts). The ruling of the court was correct. The law does not permit a husband to acquire a tax title adverse to the title of his wife. This tax title inured to her benefit just as conclusively as though he had taken the title in her name. It could not be made the basis of an adverse possession during her life. Laton v. Balcom, 64 N. H. 92; Willard v. Ames, 130 Ind. 351; Burns v. Byrne, 45 Iowa, 285. “It simply inures to the protection, not to the destruction, of the regular title.” Horton v. Ingersoll, 13 Mich. 413; Richards v. Richards, 75 Mich. 408. The tax title inuring to her benefit, it follows that it was merged in her original title, and cannot be made the basis of an adverse holding. The defendants did not base their claim of title by adverse possession upon any other color than that of this deed. This is apparent from the record. Before the final ruling, the following colloquy took place:

£ £ The Court: I am inclined to hold and instruct the jury, and I do, that under the circumstances of this case, as they appear now, the husband is not permitted, by purchasing a tax title, to build up a title adverse to that of his wife, they living together upon the premises as husband and. wife, and therefore the evidence offered is incompetent; and under the statement of counsel made at the opening, that being the point they defend upon, I think there is no use of going any further in the case. .
“Mr. Lyon: I understand that under .the ruling they have no other evidence to offer.
“Mr. Spaulding: I want to state that we do not quite concede the statement, so far as the court puts it, that we were relying wholly upon the deed. Our defense, however, is the title. Our defense, as it stands now, is that we have this deed I have offered for the purpose of showing title, and also we shall follow it up, if necessary, by the other fact of possession.
“The Court: Well, you mean follow it up by building a title up under that deed?
“Mr. Spaulding: Build title of possession up, yes, sir, under that deed, from the time it teas given.
“The Court: I don’t think it is permissible.” •

It thus conclusively appears that the defendants did not base their adverse possession upon the principle established in Pattison v. Dryer, 98 Mich. 564, and did not bring this case within that. We are not, therefore, called upon to discuss the question of title by adverse possession where a husband remains in the possession of his wife’s land after her decease. The deed was properly excluded, and the defendants offered no other evidence of title.

The judgment should be affirmed.

Moore, J.

I agree with Mr. Justice Grant that the husband, while in joint occupancy of land with his wife, cannot acquire a tax title valid as against her, but I do not think that is the only question involved in the case. The wife died in December, 1880. This suit was commenced in July, 1896. So that enough time intervened after her death to acquire title by adverse possession. To understand the case, I think it necessary to quote a little more fully from the record. Mr. Green had been sworn as a witness, and testified that he had lived near the land in controversy nearly 50 years; that it was generally understood in the neighborhood to be Mr. Nestell’s; that Mr. Grummond wanted to sell the land to witness, and, after it was sold, Mr. Nestell told the witness that he had bought it. At this point a tax deed was offered in evidence, when the following occurred:

“The counsel for the plaintiff objected to the admission in evidence of said deed as incompetent, for the reason that under the law a husband could not acquire at that time a tax title upon property the paper title to which stood in his wife; that the procedure is forbidden by the rules of public policy.
The Court:. Gentlemen, I am inclined to take the position in this case, as to the question of acquiring title, a man cannot acquire title against his wife by adverse possession.
Mr. Spaulding: In connection with that, if the deed should be received, we propose to follow it up by adverse possession beyond the period.
The Court: Now, let us see if we are agreed as to some things that already appear. I understand it is in evidence, and is not sought to be contradicted, that Mr. and Mrs. Nestell lived together as husband and wife at the time of the taking of the deed, the original title, to her, at the time of the making of the tax title to her. That, I think, was the same day as the tax title you now offer. They continued to live together as husband and wife, these premises being worked in connection with the farm in some way, up to the time of the death of Mrs. Nestell, which was in December, 1880, Mr. Nestell being then alive. When was this suit commenced?
Mr. Lyon: In July last, the same month that the administrator of her estate was appointed.
“The Court: So there is no claim made that, beginning with 1880, there could be any adverse possession?
“Mr. Spatilding: There is time enough since her death, but we claim he was in possession adverse to her title even before her death.
The Court: I am inclined to hold and instruct the jury, and I do, that under the circumstances of this case, as they appear now, the husband is not permitted, by pur-. chasing a tax title, to build up a title adverse to that of his wife, they living together upon the premises as husband and wife, and therefore the evidence offered is incompetent; and under the statement of counsel made at the opening, that being the point they defend upon, I think there is no use of going any further in the case.
“Mr. Lyon: I understand that under the ruling they have no other evidence to offer.
“Mr. Spaulding: I want to state that we do not quite concede the statement, so far as the court puts it, that we were relying wholly upon the deed. Our defense, however, is the title. Our defense, as it stands now, is that we have this deed I have offered for the purpose of showing title, and also we shall follow it up, if necessary, by the other fact of possession.
“The Court: Well, you mean follow it up by building a title up under that deed ?
“Mr. Spaulding: Build title of possession up, yes, sir, under that deed, from the time it was given.
“The Court: I don’t think it is permissible.
“ And thereupon the said circuit judge rejected the said evidence as inadmissible, and directed the jury to return a verdict for plaintiff.”

When the law required the adverse possession to be based upon a color of title, a ruling like that of the circuit judge would be proper. Our statute does not require that the adverse possession shall be based upon color of title. 3 How. Stat. § 8698. And for a great many years the decisions of this court have been to the- effect that it is not necessary to adverse possession that it should be based upon paper title or a color of title. It is only required that it shall continue for the requisite time after right of action accrues against the possessor. It may become perfected though in its origin the possessor had no shadow of title. Campau v. Dubois, 39 Mich. 274; Campau v. Lafferty, 50 Mich. 118; Cook v. Clinton, 64 Mich. 309 (8 Am. St. Rep. 816); Bird v. Stark, 66 Mich. 654; Sanscrainte v. Torongo, 87 Mich. 69; Shearer v. Middleton, 88 Mich. 621. Nor is it required that the act of taking possession in the first instance shall be hostile. Bower v. Earl, 18 Mich. 377; Michigan Land & Iron Co. v. Thoney, 89 Mich. 226.

While it may be entirely true that a tax title acquired by the husband while the paper title to the property was in the wife inured to her benefit, it does not follow that the husband, and those claiming under him, could not acquire title by adverse possession, even though the husband had taken a tax title upon the property. While the record is not as clear as could be desired, I cannot reach any other conclusion from reading it than that it is made to appear that defendants not only relied upon the tax title, but also upon title gained by adverse possession after the death of the wife. I think they should have been allowed to introduce their proofs relating to the question of adverse possession, and that the judgment should be reversed.

Long, C. J., Montgomery and Hooker, JJ., concurred with Moore, J.


author: Per Curiam.

text:
    MARBLE v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    Railroad Companies — Title to Right op Way.
    Case ruled by Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4.
    Error to Delta; Stone, J.
    Submitted April 16, 1897.
    Decided May 28, 1897.
    Ejectment by Webster L. Marble and others against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Prom a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      E. C. Chapin, for appellant.

      Ball & Ball, for appellees.
   Per Curiam.

The question raised by this record became unimportant, as the merits of the case were heard and determined in the case of Minneapolis, etc., R. Co. v. Marble, 112 Mich. 4.

The judgment is affirmed.


text:
    HARRIS v. CABLE.
    1. Evidence — Gift—Question for Jury.
    An executor is not entitled to a directed verdict in an action for the conversion of a promissory note alleged to have belonged to the estate, where defendant’s claim that the note was a gift to her from the testator in his lifetime is supported by evidence that he had deposited to her credit amounts equal to the several payments of interest upon the note on the same days that interest was paid to him, that he had inquired of her in the presence of third parties as to what she wished done with the moneys from such note, that the note bore the indorsement of the testator, and that the defendant produced it, after the testator’s death, from among her own • private papers.
    2. Same — Admissions—Inferences.
    The testimony of an alleged donee of a note from a decedent, that, at the time she produced the note in response to the request of the executor, she stated that it was hers by gift from the testator, is admissible to rebut any inference of an admission against her ownership, arising from the production of the note in response to such request.
    3. Trial — Witnesses — Volunteered Statements — Harmless Error.
    A volunteered statement of defendant, sued for the conversion of a promissory note alleged to have belonged to plaintiff’s decedent, that the plaintiff, as executor, admitted, when the note was produced, that it belonged to defendant, does not require the reversal of a judgment in her favor, where the statement was promptly stricken out with the consent of her counsel, and the jury were cautioned against giving it consideration.
    Error to Saginaw; Wilber, J.
    Submitted April 6-, 1897.
    Decided May 28, 1897.
    Trover by Edward W. Harris, executor of the last will and testament of Jacob P. Batchelor, deceased, against Martha L. Cable, for the conversion of a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Humphrey & Grant, for appellant.

      Hanchett & Hanchett, for appellee.
   Hooker, J.

A statement of the main facts in this case will be found in 104 Mich. 365, a former judgment being there reviewed and reversed, and a charge directing a verdict for the defendant held erroneous. Upon the present record the main question arises upon a request to direct a verdict for the plaintiff, which the court refused.

There was evidence tending to show that Miss Cable was the housekeeper of the deceased, having come to reside in his family in 1853 or 1854, when she was a young girl, and remained with him until he died. A few days after his death, at a reading of the will, a son of the deceased (who is prosecuting this case) spoke of the note in controversy, and asked the defendant where it was, or what had become of it. The witnesses disagree as to her reply, some saying that she said it was ‘ ‘ with the other papers of the testator,” and others that “that McCausland note is all right.” The evidence shows that this was the last of a series of four notes, all but the first being successive renewals of a note given by McCausland & Co’, to the testator for $5,000 loaned them by him. These notes were indorsed in blank by Avery, to whom, or bearer, the notes were made payable as accommodation indorser. The third and fourth notes bore the indorsement of the testator, J. F. Batchelor, in blank. It was shown that interest on the last two notes was promptly paid to Batchelor, and that upon the same days amounts equaling the respective payments were deposited by him to the credit of Miss Cable, the defendant, in a bank with which she had an account. There was testimony by one Wilke — -who was a legatee under the will — that in the first days of June, 1891, while at work for the testator, he heard a talk between the testator and the defendant. In answer to the question, “Did you hear any conversation between Mr. Batchelor and Miss Cable about the McCausland note ? ” he answered: “Yes. I don’t know anything about the note, but I was in there. He was coming in, and asked her what she wanted to do with the money from Plumb & McCausland, — whether she wanted it turned over to the bank, or whether she wanted to leave it; and she answered back, ‘Which would get the most interest ? ’ ” Another witness testified that Plumb & Mc-Causland were the predecessors in business of McCausland & Co. The defendant testified that she did not take this note from the papers of the testator after his death, and that subsequently, when she produced it, she obtained it from among her private papers, and that the first time that she saw the note after the testator’s death it was among her private papers relating to her father’s estate.

We are all of the opinion that this evidence justified the submission to the jury of the question whether or not the testator, who was the original owner of the claim represented by these successive notes, gave it to the defendant. From the nature of the case, no positive evidence of the transaction and manual delivery was possible, — one party being dead and the other disqualified; but the testimony of Wilke, and the conduct of the testator, as to the collection of interest, the coincidence in time and amount of the collection and deposit, are ample to give rise to an inference of ownership by the defendant, while the situation and relation of the parties, and the exceptional opportunities for surreptitiously obtaining possession of the note, made it a proper case to leave to the scrutiny of a jury. Much space, in the brief of counsel for the plaintiff, is devoted to a discussion of the presumption arising from possession of the paper. We think undue importance is attached to this question. There was no dispute over the original ownership of this claim, and the jury were instructed that the plaintiff must recover, unless they were satisfied that defendant became the owner by gift. If she did so, and the testator after-wards collected the interest, and deposited it to her account, it does not follow that he had the custody of the note, or necessarily raise a presumption of ownership if he had. The court fairly submitted the crucial question.

Miss Cable was allowed to testify that, when she produced the note at the plaintiff’s request, she accompanied it with the statement that it was hers by gift from the testator. This was not admissible as substantive evidence of the gift, but it was admissible in its tendency to rebut the inference of an admission against her ownership, sought to be drawn from the production of the note under the circumstances shown. It was not proper to show that the plaintiff there said that the note was hers, hut this was volunteered by the witness, and it was stricken out at once, by consent of her counsel. The learned circuit judge was careful to caution the jury against this testimony, and we think it does not warrant a reversal of the judgment.

We think that plaintiff’s counsel underrate the significance of testator’s indorsement of these notes, in connection with the other testimony. If, as they claim, we must say that it was unnecessary to pass title, it may have been an intentional indorsement, by way of guaranty that the notes would be paid at maturity. It was not inconsistent with defendant’s claim, and there is opportunity for the argument that he would not have been likely to indorse in blank two notes that he intended to keep, and not two other notes, which we know that he did not part with.

The number of assignments of error is large, and we must content ourselves with the discussion of the more important ones- We find no error in the record, and the judgment is affirmed.'

The other Justices concurred.


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    KROLL v. DIAMOND MATCH CO.
    Statute of Frauds — Contracts for Sale of Land — Offer and Acceptance — Consideration.
    The tender of a deed of lands, pursuant to the written offer of the person named as grantee to pay a specified price therefor, does not, even in the absence of a preceding oral acceptance, complete a contract for the sale of land, complying with the requirement of the statute of frauds that such contracts, to be binding, shall be in writing, signed by the party by whom the sale is to be made.
    Error to Houghton; Hubbell, J.
    Submitted April 16, 1897.
    Decided May 28, 1897.

      Assumpsit by William Kroll against the Diamond Match Company to recover the purchase pricé of land sold. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Hill & Hood, for appellant.

      A. H. Gray, for appellee.
   Hooker, J.

The findings of fact in this cause state that the defendant’s manager negotiated with the plaintiff for the purchase by the defendant of plaintiff’s interest in certain lands, and executed and delivered to the plaintiff a writing, reading as follows:

“Feby. 28, ’94.
“Draft for $2,000. We will- send Wm. Kroll, of Kenton, Mich., on rec’t from him of a Q. C. deed based on State T. D. of N. E. 1, and N. E. -J 23-47-40.
“D. M. Co., by J. H. Comstock, Mgr.”

After giving the said writing to plaintiff, it was agreed between him and said Comstock that the deed contemplated by said proposal should be made to him, said Com-stock, personally, instead of to the defendant. The plaintiff tendered a deed, which defendant refused to accept, and withdrew its proposal. Thereupon plaintiff brought this action for the price, and was defeated, whereupon he brought the case to this court.

The defense relied on is the statute of frauds. Counsel for the plaintiff claim that the execution of the deed amounted to an acceptance of the written offer of the defendant. They seem to freely admit that, had this offer been accepted orally, it would not have been a binding contract, and that the subsequent tender of the deed would not have made it so, but emphasize the alleged fact that there was no acceptance of the offer, except as the tender of a deed was such acceptance, and say that, being in writing, it had the effect of completing a written contract, which complies with the requirements of the statute, resting upon the offer and the deed. The effect of this argument is to make the validity of the contract depend upon the question whether or not/there was an acceptance previous to the making of a deed, thus putting-one who had not so accepted upon a better footing than one who made his deed in accordance with his pre-existing promise to do so. This, to say the least, is a distinction that is very technical, and does not appeal strongly to our sense of justice.

No authorities are cited which clearly sustain plaintiff’s contention, while several Michigan cases are opposed to it. In Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311), a consideration paid for land bargained orally was recovered back, although the owner was willing and offered to convey. The court held that the oral promise to convey was not binding when made, and hence the payment was without consideration. They were regarded as preliminary negotiations, which conferred no rights, and could not thereafter be made binding by any attempt of a single party to force a contract upon the other. It was added that, “if there was no contract already in existence, the subsequent assent of both was as necessary as if they had never negotiated. A party who has never become bound cannot be held by any but his own agreement. * * * And we cannot conceive of such a thing as a contract which cannot be enforced as a contract, and yet can be the foundation of legal obligations arising out of nothing else.”

The case of Liddle v. Needham, 39 Mich. 147 (33 Am. Rep. 359), is in point. This is a case where Liddle agreed that, if Needham would deed to Liddle’s son, he would pay. Needham deeded, but Liddle refused to pay. The court said that “the agreement, when made, was without force. * * * As Needham’s promise to deed was not binding at all, Liddle’s promise, made entirely on the strength of it, was not binding for lack of consideration.” Although the son accepted the deed, the suit against the father failed.

Had the plaintiff tendered the deed, and defendant accepted, and gone into possession under it, the action might possibly be sustained, even had his promise been oral. Toan v. Pline, 60 Mich. 385; Waldron v. Laird, 65 Mich. 239; Kelsey v. McDonald, 76 Mich. 188.

Ducett v. Wolf, 81 Mich. 311, would be upon all fours with this case but for the fact that in that case there was an oral agreement to convey, — a point upon which counsel do not agree as to this case. The court said :

“There was no consideration for this promise \i. e., to take the land], except the promise of the plaintiff to convey the land to them; but, as this promise of the plaintiff was not binding upon her until the deed was actually delivered and accepted, it could furnish no consideration for the defendants’ promise to pay the money.”

The authorities seem conclusive. The judgment of the circuit court is affirmed.

The other Justices concurred.


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    YOUNGS v. ADAMS.
    1. Slander — Words Actionable Per Se.
    To say to another, “You are a liar and a thief,” is, if left unexplained, slanderous, and actionable per se.

    2. Same — Justification—Evidence.
    The defense of justification is not established, in an action for slander in calling one a thief, by proof of cheating, trickery, and fraud, not amounting to actual theft.
    Error to Marquette; Stone, J.
    Submitted April 16, 1897.
    Decided May 28, 1897.
    Case by Clark W. Youngs against Sidney Adams for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Ball & Ball, for appellant.

      Hill & Booa, for appellee.
   Hooker, J.

The defendant appeals from a verdict and judgment against him in a slander case. The slanderous words charged were: “You are a liar and a thief, and I have the papers to prove it.” The court instructed the jury that these words, taken in their ordinary and natural sense, charged the plaintiff with the offense of larceny, and that the statement, if made without qualification, was actionable per se. With the plea of the general issue, the defendant filed a notice in the nature of justification, in which'he alleged that he would prove that the plaintiff, while in his employ, defrauded him in various ways, and fraudulently embezzled and converted to his own use the moneys of the defendant, and obtained the property of others named by false pretenses. A bill of particulars of the alleged embezzlements and larcenies was filed, containing some 27 items, and upon the trial defendant introduced testimony which he claims established such embezzlements and larcenies.

The court instructed the jury that—

“The words, ‘You are a liar and a thief,’ are not actionable, unless the defendant intended to impute the crime of larceny, which the law will presume, if unexplained. If left unexplained, these words are actionable. The circumstances surrounding the speaking of the words, however, may be given in evidence to rebut the presumption of malice, and to show the ekcumstances under which the words were uttered. * * * The defendant has always been, and is, permitted, in a case like this, to show the matter affecting’ the meaning of the alleged defamatory language. An action cannot be maintained where the words, although imputing a crime, were accompanied by such an explanation as showed that the crime was not committed. * * * Explanatory circumstances, known to all of the parties, speakers, and hearers, are to be taken into account, then, as a part of the words. * * * The test in such case is the knowledge possessed by those' to whom the language is published. ■ The question now is, not what the defendant meant by the words he spoke, but what reasonable men, hearing the words, would understand them to mean. * * * The word ‘thief’ may be so used, qualified, or explained as to show that it was intended to have a different meaning, and not to mean larceny, or any crime at all.”

The court instructed the jury that in such case the plaintiff could not recover. The foregoing instruction was elaborated, and applied to the question in the case, and, in our opinion, made it plain that the defendant should not be found guilty if the circumstances showed that the words ought not to have been understood in their ordinary sense. This charge follows the rule laid down in Ellis v. Whitehead, 95 Mich. 105, where a similar question was considered.

It was contended by counsel for the appellant that the evidence showed that the plaintiff was guilty of embezzlement from the defendant, and that he cheated and defrauded him, and wrongfully converted his property, and that the court should have so instructed the jury, and that embezzlement was larceny, and proof of it amounted to a justification of the charge of larceny. The court instructed the jury that proof of cheating, trickery, and fraud, unless it amounted to actual theft, would not amount to a justification, and that no taking or conversion would amount to larceny or embezzlement — which he said was statutory larceny- — unless it included a felonious intent to convert the property taken or misappropriated to his own use. It was thus left to the jury to find a justification by embezzlement, if the necessary elements to establish it were found. We think the court did not err in saying that a charge of being a thief could not be justified by showing the plaintiff guilty of cheating, fraud, or false pretenses, and there was no error in refusing the numerous requests upon these subjects.

We think it unnecessary to discuss other assignments of error. In our opinion, the court submitted the disputed questions of fact to the jury under a fair charge, and the judgment is therefore affirmed.

The other Justices concurred.


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    VAN BAALEN v. COTNEY.
    Notice — Possession—Mortgagee and Purchaser.
    Possession by one claiming through the purchaser under a land contract is constructive notice of his rights to a subsequent mortgagee of the vendor.
    Appeal from Wayne; Donovan, J.
    Submitted April 27, 1897.
    Decided May 28, 1897.
    Bill by Isaac Van Baalen against Catherine Cotney and others to foreclose a mortgage. From a decree for defendants, complainant appeals.
    Affirmed.

      George H. Prentis, for complainant.

      John G. Hawley, for defendants.
   Hooker, J.

The complainant and appellant filed the bill in this cause to foreclose a mortgage made October 26, 1893, by Catherine Cotney, upon premises which she had previously sold on a written contract to Paeschke, and which he sold to Wallinger on April 5, 1892. Wallinger took immediate possession, and has retained it since. This possession was constructive notice of his rights, and the circuit judge was justified in denying foreclosure, and requiring the complainant to discharge the mortgage.

His decree is affirmed, with costs.

The other Justices concurred.


author: Long, C. J.

text:
    ST. JOHNS NATIONAL BANK v. TOWNSHIP OF BINGHAM.
    1. Taxes — Personal Property — Sale Before Lien Attaches.
    A purchaser of hank stock prior to December 1st takes it free from any lien for taxes, under Act No. 206, Pub. Acts 1893, § 40, providing that all personal taxes shall become a lien on personal property on December 1st in each year, and shall take precedence of any sale, mortgage, or other lien executed or made “after” that date.
    2. Same — Bank Stock.
    A bank cannot be compelled to use its assets to pay a tax on certain shares of its stock where it cannot reimburse itself against the stock, as provided by law.
    3. Same — Suit at Law — Equitable Belief.
    A hank cannot maintain a bill to restrain the prosecution of an action at law to recover a tax assessed against certain of its stock, on the ground that such stock was transferred by the owner before the tax became a lien, since that fact may be set up as a defense to the suit at law.

    Appeal from Clinton; Daboll, J.
    Submitted April 28, 1897.
    Decided May 28, 1897.
    Bill by the St. Johns National Bank against the township of Bingham to restrain the prosecution of a suit to collect a tax. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Spaulding & Norton, for complainant.

      Will H. Brunson, for defendant.

       An extensive collection of authorities respecting the use of an injunction against the collection of illegal taxes is found in a note to Odlin v. Woodruff, (Fla.) 22 L. R. A. 699.

   Long, C. J.

The bill in this case alleges that in May, 1895, the supervisor of the township of Bingham listed against Robert M. Steel, of St. Johns, certain real and personal property, and also “stock of St. Johns National Bank,” at the valuation of $26,650, and that on the tax roll he afterwards assessed a tax on said stock in the sum of $429; that he listed like “stock” against George A. Steel, and assessed a tax upon it in the sum of $45.95; that he listed like “stock” against Robert G. Steel, and assessed a tax upon it in the sum of $30.63; and that on November 30, 1895, the said supervisor delivered the tax roll and his warrant to the township treasurer. The bill further alleges that the several taxes became a personal debt against the said taxpayers from the date of its assessment, and a lien upon their personal property on December 1, 1895. It further alleges that the said Robert M. Steel sold 220 shares of said stock to the St. Johns National Bank, for full value, on the 18th day of October, 1895, and due transfer of it was then made on the books of the bank; that on September 13, 1894, he pledged other 50 shares of said stock to one John Hicks, to secure an indebtedness exceeding the value of the stock; that the certificates of said stock were then delivered to said Hicks, who held them till December 13, 1895, when they became the absolute property of said Hicks, who sold 28 of said shares to C. C. Vaughan, and transfer of the entire 50 shares was then made on the books of the bank, — 28 to Vaughan, and 22 to Hicks; that the said 270 shares represented all the holdings of said Steel in the stock of said bank; that George A. Steel sold all his stock in said bank (30 shares) to said bank, for full value, December 4, 1895; that said Robert G. Steel-sold all his stock (20 shares), for full value, as follows: To E. G. Bement, 5 shares, August 13, 1895; and to the Clinton County Savings Bank, 15 shares, December 2, 1895. It is further alleged that in the month of February, 1896, the township treasurer demanded said taxes of Peter E. Walsworth, cashier of said bank, who then informed the said treasurer that none of the Steels held any stock in said bank, and that the said treasurer should make the taxes out of the said taxpayers or their personal property. The bill alleges that there was an abundance of personal property in said township belonging to said taxpayers, and upon which the said taxes were a lien, out of which said taxes could be made by distress and sale, in accordance with the mandate of the warrant, but that on the 29th day of February the said treasurer, instead of pursuing said personal property or the taxpayers themselves, who were financially responsible, brought suit to recover the said taxes from the bank in the name of the township, and that he then returned his tax roll and warrant to the county treasurer, and took out a supplemental warrant for the collection of said taxes, and still holds said warrant; that said suit at law is at issue; that the bank cannot adequately defend at law; and restraint of said suit at law is prayed. The defendant interposed a general demurrer to the bill for want of equity, and, upon the hearing, the bill was dismissed. From this decree the complainant ^appeals.

The transfer of 220 shares of stock was made to the bank by Robert M. Steel before the tax became a lien upon the stock. Under section 40, Act No. 206, Pub. Acts 1893, all personal taxes become a lien on personal property on the 1st day of December in each year, “and shall take precedence of any sale, assignment, or chattel mortgage, levy, or other lien on such personal property, executed or made after said 1st day of December, except where such property is actually sold in the regular course of trade.” Thus, the statute, by implication, recognizes that the purchaser, or one who takes by assignment, etc., takes it free from any lien for taxes, if the sale or lien, etc., is made before December 1st. The bill also alleges that on September 13, 1894, Robert M. Steel assigned to John Hicks 50 shares of stock, as security for an amount exceeding the value of the stock, and that on December 13, 1895, Hicks obtained the ownership of it. It also appears that on August 13, 1895, E. Gr. Bement acquired by purchase 5 shares, at their full value, from Robert G. Steel. The sale to Bement was prior to the lien of the township for the taxes. The lien of Hicks was also prior to the lien of the township, and made so by the statute, and exceeded the value of the stock. All these shares of stock, amounting to 275 shares, had been sold prior to the tax lien, and the bank certainly could not be held to pay the taxes thereon. This covered all the holdings of Robert M. Steel in said bank.

Robert G. Steel had left, of his holdings, 15 shares, which, on December 2d, he sold to the Clinton County Savings Bank. George A. Steel held his stock (30 shares) till December 4th, when he sold it to complainant. When these last two sales were made, the taxes had become a lien, and the shares were liable for the taxes. The bank, in its purchase from George A. Steel, took the 30 shares subject to the lien, upon which the complainant must pay, and also upon the 15 shares sold to the Clinton County Savings Bank. Eyke v. Lange, 104 Mich. 26. The defendant in no event would have the right to compel the bank to pay upon the other shares, the sale having been made before the tax became a lien. A bank cannot be compelled to use its assets to pay a tax where it cannot reimburse itself against the stock, as provided by law. City of Boston v. Beal, 51 Fed. 306; City of New Orleans v. Houston, 119 U. S. 265. If this could be done, it would substantially be a tax upon the corporation itself.

It is contended, however, that a suit in equity cannot be brought to restrain the collection. We agree with counsel in this contention; but, -to save the- parties the expense of prolonged litigation, we have discussed the merits of the case. This will not be taken as a precedent in future cases. In the defense to the action at law brought by the township, this defense could be set up. It is purely a legal one, and is devoid of any equitable considerations. Every ground for relief set up in the bill is, if shown, a complete defense to the suit at law, so far as the tax upon the stock transferred before the tax became a lien is concerned. The case is not like Lenawee Co. Sav. Bank v. City of Adrian, 66 Mich. 273. There the •collector was proceeding to enforce the payment of the tax by seizure of the bank furniture and fixtures. Neither was the question raised in that case, and it appeared that irreparable injury might be done, and the court interfered to prevent it.

The court properly sustained the demurrer and dismissed the bill. That decree will be affirmed, with costs of both courts to the defendant.

The other Justices concurred.


text:
    CARVER v. SMITH.
    1. Appeal from Justice’s Court — Jurisdiction.
    The return of a justice, in a cause appealed to the circuit court, that plaintiff declared in a plea of trespass on the case, that defendant pleaded the general issue, and that judgment was rendered for the plaintiff, is sufficient to confer jurisdiction.
    2. Same — Lost Piles — Amplification of Return — Procedure.
    Where the defendant in a cause appealed from justice’s court appears in the circuit, and objects to the court’s taking jurisdiction because no declaration is returned, plaintiff may be permitted to show by the affidavit of the justice, without formal motion, that the original declaration has been lost, and that a declaration attached to the affidavit is, to the best of affiant’s knowledge and belief, the same as that filed in justice’s court.
    Error to Wayne; Hosmer, J.
    Submitted April 28, 1897.
    Decided May 28, 1897.
    Case by Walter Carver against Horace Smith for breach of warranty. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hamilton Baluss, for appellant.

      A. Ward Copley and E. M. Vining, for appellee.
   Hooker, J.

The return of the justice shows that the plaintiff declared in a plea of trespass on the case, and that the defendant pleaded the general issue. Upon the trial the justice rendered judgment for the plaintiff for $30, from which the defendant appealed. At circuit, and before trial, the defendant raised the point that there was no declaration, and that the trial should not proceed without one. Counsel for plaintiff then offered an affidavit of the justice that the declaration was lost, and that he cot^d not find it after diligent search, and that a declaration attached to the affidavit was, to the best of his knowledge and belief, the same as the one filed in justice’s court. The circuit court allowed this affidavit to be filed, subject to objection, and proceeded with the trial. The court, under a misapprehension, said that a declaration might be filed later, and that he would consider it filed and proceed. As a fact, the .declaration was attached to the affidavit filed, and it was soon brought to the attention of the court, by defendant’s counsel himself, in connection with an objection that certain testimony tending to show unsoundness in a mare had no basis in the declaration. The court overruled the objection.

It is contended:

1. That the return of the justice did not confer jurisdiction on the circuit court.
2. That, if the plaintiff wished to complete the court’s jurisdiction, he should have made a motion and showing, and given notice.
3. That the evidence should have been excluded, as there was no issue before the court.
4. That the new declaration was in assumpsit, and changed the form of action.
5. That no cause of action was set out in the declaration, and no issue was joined.
6. That the court erred in permitting the filing of this declaration, as the affidavit did not show that he knew or remembered the substance of the declaration filed, and the statute (2 How. Stat. §§ 7639-7642) was not followed.

We think there is no error in the record. The return of the justice conferred jurisdiction, and a formal motion to supply the declaration was not necessary, under the circumstances. The defendant raised the question when the case was reached for trial, and, being personally present, had notice of the application. A broad discretion is given to courts of general jurisdiction, in perfecting an issue by amendment, or supplying lost files, and we should not interfere with it where no hardship has been suffered. Had the defendant asked to be allowed to file a demurrer to the declaration, or to add to his plea of the general issue, and been refused, to his injury, we would be called upon to consider the question, but we do not discover that he did so.

The declaration filed counts in trespass on the case for a breach of warranty, which, for aught that appears, was the identical question tried by the justice.

We discover no error, and the judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. HILLER.
    Statutes — Amendment and Repeal — Misappropriation by Administrator.
    3 How. Stat. § 9191a, provides a penalty for the willful neglect ' of an executor or administrator to deliver over to his successor in trust upon order of the court, within 30 days, all goods, chattels, money, or effects of the deceased which he has received and appropriated to his own use. Act No. 51, Pub. Acts 1895, purporting to be amendatory thereof, extends the time for compliance to 60 days, and increases the maximum penalty for disobedience, but contains no saving clause. Held, that the earlier statute was repealed by the later one, and that no conviction could thereafter be had for a violation of the former.

      Exceptions before judgment from Lenawee; Peck, J., presiding.
    Submitted April 29, 1897.
    Decided May 28, 1897.
    Thomas J. Hiller was convicted of embezzlement. ■
    Reversed.

      James H. Davitt, for appellant.

      D. B. Morgan, Acting Prosecuting Attorney, for the people.
   Moore, J.

December 12, 1895, a warrant was issued against the respondent, charging him with the crime of embezzlement. Later an information was filed, charging him with the same offense. Upon the trial he was convicted. A number of errors are assigned. The only ones we need to discuss grow out of the question as to whether Act No. 51, Pub. Acts 1895, had the effect to repeal section 9191a, 3 How. Stat. The last-named section reads:

The People of the State of Michigan enact, That if any general or special administrator, or any executor or guardian, who has been appointed by a judge of probate, and who has collected any goods, chattels, money, or effects of the deceased, and willfully appropriated the same to his own use, and who has been ordered by the judge of probate to forthwith deliver to his successor in trust all the goods, chattels, money, or effects of the deceased in his hands, shall willfully omit, neglect, or refuse for 30 days to obey said order, he shall be deemed to have committed the crime of embezzlement, and shall, upon conviction thereof, be imprisoned i.n the state prison not more than two years, or by fine not exceeding one thousand dollars,” etc.

The amendment of 1895 changed the law by making the period of omission, neglect, or refusal to obey the order 60 days, instead of 30; and the penalty for the violation of the law, imprisonment for not more than five years, instead of two years, or fine of not more than $2,000, instead of $1,000. Nothing was said in the act of 1895 about repealing any other law, nor did it contain any saving clause. The act purported to be an act to amend the act as it then existed. It is insisted by respondent that the effect of the enactment of the amendatory act was to repeal the penalty clause in the act of 1889; that the offense charged in the information was committed (if any was committed) before the act of 1895 took effect, and that to apply the penalty provided in the act of 1895 to an offense committed before it took effect would make an ex post facto law of it; and that, therefore, the respondent could not be convicted of the offense charged in the information.

Repeals by implication are not favored. 23 Am. & Eng. Enc. Law, 489, 496; Suth. Stat. Const. § 138; End. Interp. Stat. § 210; Crane v. Saginaw Circuit Judge, 111 Mich. 496; People v. Grand Rapids, etc., Plank Road Co., 67 Mich. 9. The contention of the counsel for the respondent, if allowed to prevail, is likely to result in the escape of some guilty men from deserved punishment, and should not prevail unless sustained by the undoubted weight of authority.

It is held, where an act or portion of an act is amended “so as to read” in a prescribed way, that the section amended is entirely repealed, and that as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal. End. Interp. Stat. § 196; 23 Am. & Eng. Enc. Law, 488; Blakemore v. Dolan, 50 Ind. 194; Goodno v. City of Oshkosh, 31 Wis. 127. A statute providing for or defining an offense created by a previous statute, and providing a materially different punishment, repeals the former act. Suth. Stat. Const. § 143 (p. 193); Wilson v. Railway Co., 64 Ill. 542 (16 Am. Rep. 565); State v. Campbell, 44 Wis. 529. We understand the rule to be, in criminal cases, in the absence of a saving clause, that where the penalty is altered in degree, but not in kind, by increasing the punishment which may be imposed, the effect of enacting the increased penalty is to repeal the earlier provision. End. Interp. Stat. § 239; State v. Inger soll, 17 Wis. 631; State v. McDonald, 20 Minn. 136. The repeal or expiration of a statute imposing a penalty or forfeiture will prevent any prosecution, trial, or. judgment for any offense committed against it while it was in force, unless the contrary is provided in the same or some other existing statute. Suth. Stat. Const. § 166; Com. v. Kimball, 21 Pick. 373; State v. Van Stralen, 45 Wis. 437; 23 Am. & Eng. Enc. Law, 512, and many cases there cited; Kring v. Missouri, 107 U. S. 221; In re Medley, 134 U. S. 160; Wilson v. Railway Co., 64 Ill. 542. For an interesting discussion of some of the principles involved in this case, see People v. Bussell, 59 Mich. 110.

The only exceptions to the rule herein stated are where the State enacting the new legislation has a general law which operates as a saving clause, or where the new legislation indicates very clearly that its provisions are to apply only to offenses thereafter committed. It* was doubtless competent for the legislature to continue the penalty for offenses committed under the old law, after the new law took effect, by attaching to the new law a saving clause, or by indicating in the law itself that its provisions were to attach only to offenses committed after the law became operative; but neither of these things was done. On the contrary, the law of 1895, by its terms, applies to any administrator, executor, or guardian “who has been appointed by a judge of probate,” etc.

We think it necessarily follows, from what has already been said, that the verdict must be reversed, and respondent discharged.

The other Justices concurred.


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    PEOPLE v. BARNES.
    1. Intoxicating Liquors — Illegal Sale — Remarks of Prosecutor.
    Upon a prosecution for keeping a place for the sale of intoxicating liquors in violation of the local option law, the contents, occupants, and appliances of respondent’s place of business, and their adaptability to traffic in liquor, are proper matters of inquiry, and the prosecutor, therefore, has the right to ‘ ‘ submit ” in his argument that the room which the respondent is charged with keeping was fitted up for the express purpose of violating the law.
    2. Same — Local Option Law — Principals in Crime.
    All who aid and assist in keeping a place where intoxicating liquor is sold in violation of the local option law, whether as owner or clerk, are principals. People v. Rice, 103 Mich. 350, followed.
    Exceptions before judgment from Van Burén; Buck, J.
    Submitted April 29, 1897.
    Decided May 28, 1897.
    Will Barnes was convicted of violating the local option law.
    Affirmed.

      T. J. Cavanaugh, for appellant.

      James B. Chandler, Prosecuting Attorney, for the people.
   Hooker, J.

On appeal from a conviction of the offense of £ £ keeping a place where intoxicating liquors were sold ” on and between the 1st day- of July and the 6th day of August, 1895, the defendant relies upon the following errors:

1. That the prosecuting attorney, in his argument, said to the jury, “ I submit to you that this room was fitted up for the express purpose of a violation of the local option law, so no one would be caught at it.”
2. That the court failed to direct an acquittal upon the ground that another person had been convicted of keeping said place at the time covered by the complaint.
3. That the court erred in his charge as to the effect of circumstantial evidence.

It was proper to take into consideration the character of the place, its contents, occupants, and appliances, as bearing upon the question whether or not it was a place where intoxicating liquor was sold. The prosecuting attorney seems to have argued to the jury that it was, and we think the evidence justified it. His language was not an assertion of a fact, not even a statement that it was his inference from the testimony, but he submitted to the jury the propriety of finding the fact stated. This he had a right to do, under the evidence.

The second question is ruled by the case of People v. Rice, 103 Mich. 350, 359, where it was held that all who aid or assist in keeping a place of this character, whether as owner or clerk, are principals.

The instructions relating to circumstantial evidence appear to fairly cover the question, and we think the case is devoid of error.

The conviction is affirmed.

The other J ustices concurred.


author: Grant, J.

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    KELSEY v. BOARD OF FIRE & WATER COMMISSIONERS OF MARQUETTE.
    1. Water Rates — Liability op Owner — Rules and Regulations —Waiver.
    The right secured to a board of water commissioners by charter to treat with the owner of an office building, rather than with the several tenants, is not waived by its superintendent’s unauthorized act in assessing water rates, at the owner’s request, to the tenants, upon the understanding that the owner should remain liable if the tenants failed to pay.
    2. Same.
    The duty of furnishing water separately to each tenant of a building, and collecting rates from each as a separate consumer, cannot be imposed by the owner of the premises on the board of water commissioners by furnishing at his own expense, for each room, shut-offs with locks and keys, and then tendering the keys to the commissioners.
    Appeal from Marquette; Stone, J.
    Submitted April 30, 1897.
    Decided May 28, 1897.
    Bill by Charles Kelsey to restrain the Board of Fire & Water Commissioners of the city of Marquette from shutting off the water from a certain building. From a decree for complainant, defendant appeals.
    Reversed.
    Complainant, a resident of the city of Marquette, occupied as tenant an office on the second floor in the building known as the “Nester Block,” in the said city. He is also the agent of Morrison & Scott, the owners of the building, and has charge thereof. The building has a frontage of five stores, and is four stories high. The basement is occupied by a barber shop and offices; the first story, by stores; the second, third, and fourth, by offices. The complainant’s office, as are also most of the others, is supplied with water by the defendant, and has been ever since the erection of the building. Each office has a wash-bowl. Water is also furnished for the engine and boilers with which the building is heated, for running the elevator, and for closets. Since its erection, until 1895, the defendant was in the habit of issuing permits and rendering bills to the occupants of each office, which have generally been paid by them. Bills for the boiler, closets, and elevator have been rendered to the owners of the building. In May, 1895, after the dispute arose, Morrison & Scott supplied every water fixture in the block with shut-offs, with lock and key, and tendered these keys to the defendant, with authority from them to shut off any tenant who did not pay for the water. The leases between Morrison & Scott and their tenants require each tenant to pay “all gas, electric light, and water rates properly chargeable against said premises.” There was a single service pipe from the street main to the building, and, from this service pipe, pipes were carried to the different rooms and stores. A shut-off was placed near the sidewalk in the street, so that the water could be shut off from the building. It appears that some of the tenants did not pay the water rates, and, when Morrison & Scott purchased the building, they paid the amounts which were in arrears. In 1894 the defendant concluded to deal only with the owners of the building, to charge the rates to them, and to shut off the water if they were not paid. Bills were so rendered in 1895, and trouble arose, which was finally settled by the payment of the bills. In May, 1896, the defendant again threatened to shut off the water because of unpaid bills. The complainant tendered the amount due upon his office, which was refused, except to apply upon the entire amount due from the building, and defendant threatened to shut off the water from the building. Thereupon the complainant filed this bill for a permanent injunction against such action, and obtained a decree.

      The Charter: The defendant was organized under Act No. 243 of the Laws of 1869. It is a special act, and its provisions, so far as they relate to this question, are as follows:
    “Sec. 6. It shall be the duty of said commissioners to examine and consider all matters relative to supplying said village of Marquette with a sufficient quantity of pure and wholesome water for domestic use; also, to provide suitable and efficient means for- the extinguishment of fires. ”
    Section 10 confers the power upon, and makes it the duty of, the commissioners to purchase such lands and materials, and construct such reservoirs, buildings, machinery, and fixtures, as shall be deemed necessary to furnish an ample supply of water for public and private use. <
    “Sec. 13. Said commissioners shall, from time to time, cause to be assessed the water rate to be paid by the .owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water rate shall be a continual lien until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.
    “Sec. 14. Said commissioners shall have power to make and enforce all necessary by-laws and regulations for the collection of said water rates, either by the appointment of collectors to demand the same, requiring payment at the office, shutting off the water, or by a suit at law before any court of competent jurisdiction, or by sale of the lot or premises upon which such rates shall have become a lien:" Provided, that such sales shall be conducted in the same manner and have the same force and effect of sales of lots delinquent for village taxes; and provided further, that the attempt to collect said rates by any process above mentioned shall not in any way invalidate the lien upon the said lot or premises.”
    “See; 24. The said commissioners are hereby invested with full power to make and enforce such by-laws, regulations, and ordinances as may be necessary to carry into effect the object and -intent of this act, and to supply any mode or power not already specified herein, and shall cause all such by-laws, regulations, and ordinances to be entered in a book to be kept for that purpose, and signed by the president and secretary, which, when so entered and signed, shall be evidence in any court of justice.”

      Rules and Regulations: Rules and regulations were adopted by the board, to the number of 13. So far as they are essential to this controversy, they are as follows: Rule 2 provides that—
    “All applications for a permit to connect service pipe with the distributing pipe must be made at the office of the board, by the owner of the premises, or some person duly authorized by him, and the sum of $10 paid in advance for permit, service cock, stop cock, and a service pipe one-half inch in diameter from the street main to the outer edge of the sidewalk, including the laying of the same.”
    This rule further states fully what the application must contain. Rule 3 provides a penalty for misrepresentation, or use of water without permit, etc. Rule 4 is as follows:
    “Water rates are due and payable in advance at the office of the treasurer of the board on the first days of May and November in each year. Ten per cent, will be added if not paid within 30 days thereafter, and the water shut off without notice, and not turned on again except upon the payment of all arrearages, and, in addition thereto, the sum of two dollars for closing and opening the street stop cock. After expiration of time allowed for payment without addition of the 10 per cent, penalty, the same shall be paid only to the secretary of the board.”
    Rule o relates to private hydrants for fire use. Rule 6 provides that the employés of the board must have free access at proper hours to all parts of every building, to examine pipes and fixtures, and ascertain whether there is any unnecessary waste of water. Rules 7 and 8 refer to plumbers. Rule 9 provides for the laying of service pipes, and the insertion of stop cocks therein. It is unnecessary to refer to the other regulations.

      Contentions of the Parties: Complainant insists that he is entitled, upon paying or tendering his water rates, to be furnished with water, and that defendant has no i-ight to shut off the water from his office because other tenants in the building are delinquent. The defendant insists that it has the right to deal solely with the owners of buildings, and charge the entire amount against such owners, and to proceed in any of the methods provided by its charter for enforcing payment. The learned circuit judge held with the complainant, basing his opinion upon two facts: First, that there is no rule of the board declaring that it will deal with the owners only in the rendering of its bills and collecting of its rates; and, second, that the defendant has, by its practice in granting permits and rendering bills, elected to treat the complainant and those similarly situated as water takers so long as they pay the rates and comply with its regulations.

      Hill & Food (A. B. Fldredge, of counsel), for complainant.

      Clark & Pearl, for defendant.
   Grant, J.

(after stating the facts). The charter of the defendant provides for furnishing water to the owners or occupants of houses and other buildings. It does not contemplate that the defendant shall furnish water to each tenant who occupies a separate room in any house or building. It also provides various methods for enforcing collection of the rates. Counsel for complainant concede that the rates are a lien upon the building, and that the building can be sold for nonpayment of the rates by any tenant. The rules and regulations provide for dealing with the owners, and not with tenants. The application is required to be made by the oivner or some person duly authorized by him. The defendant has supplied only one service pipe from the street main to the building, and has provided for one shut-off in the street. This has been the universal custom. It is not, and cannot be, contended that defendant, under its charter, is not vested with the power and right to treat alone with the owner or occupant of the building as an entirety. If such owner or occupant rents rooms to tenants, he has not the right, under the charter, to compel the defendant to deal with his tenants, and to collect the rates from them. Morrison & Scott, in their leases with their tenants, recognize that they are liable to the defendant, and therefore provide that their tenants must pay for the use of the water. The defendant has made no rule or regulation authorizing its officers or employés to deal with tenants, or to collect from them. The superintendent has done this as an accommodation to owners., and without authority, except as it may be implied from his course of business, known to its officers. Their practice in this regard, however, has not been uniform, and in some instances it has, at the request of property owners, assessed the rates to their tenants, but with the express agreement that the owner should pay if his tenants were delinquent. We do not think that this custom can be construed into a regulation perpetually binding upon the defendant. Until the difficulty arose over the nonpayment of rates by some of the tenants of the Nester Block, no provision had been made for shutting off the water in each room. The only method, therefore, for enforcing payment by shutting off the water, was by the use of the shut-off in the street. Morrison & Scott now seek to fasten this duty upon the defendant by furnishing, at their own expense, shut-offs, with locks and keys, in each room, tendering the keys to the defendant, and thus forcing it to relieve them from the collection of the rates. The charter authorizes the defendant to make all necessary rules and regulations for collecting its dues. We see nothing unreasonable in the method which it was pursuing.

The authorities cited in behalf of complainant do not sustain his contention. In Red Star Line Steamship Co. v. City of Jersey City, 45 N. J. Law, 246, the sole question was the right of the company to charge consumers with the cost of expensive meters, and it was held that no such right was conferred by the charter. In U. S. v. American Waterworks Co., 37 Fed. 747, the waterworks ordinance provided that the company should furnish water to its citizens residing along the line of. its mains, at certain rates, and at a tariff for dwelling houses according to the number of rooms, and other buildings of different kinds. The United States reservation known as “Fort Omaha” contained dwellings for officers, and other buildings. The United States claimed the right to- be furnished as a single consumer for the entire reservation, including all its buildings. It was held that the company-had the right to treat each building separately. In Lumbard v. Stearns, 4 Cush. 60, the act under which the water company was organized was attacked as unconstitutional because it contained no express provision requireing the corporation to supply all families and persons who should apply for water, on reasonable terms. It was contended that it might supply some houses and lots, and refuse to supply others. Chief Justice Shaw said, “This would be a plain abuse of their franchise.” In McCrary v. Beaudry, 67 Cal. 120, the water company assumed the right to shut off the water, without any reason, from the owner of the premises. In Price v. Irrigating Co., 56 Cal. 431, the defendant was organized “to furnish, sell, give, and supply water to any person or corporation, for irrigation, mechanical, or other purposes.” It refused to supply plaintiff with water, claiming the right to appropriate all the water to its own use, “as another sort of corporation.” In Young v. City of Boston, 104 Mass. 95, the charter required the city to furnish water to “the occupant of any tenement.” An ordinance was passed by the city, providing for the use of water in “model houses,” so called. These were similar to apartment houses or flats. A model house was one of those apartments used and occupied as a separate tenement. The city sought to deprive such tenant of the use of water. It was held that “this model lodging house was a ‘tenement,’ within the meaning of the ordinance.” In Wood v. City of Auburn, 87 Me. 287, the city had purchased the waterworks, had accepted payment for six months in advance from the complainant, who was the owner of the tenement building, and sought to shut off the watei for the nonpayment of rates before the city purchased. It was held that the city, having accepted payment in advance, could not shut off the water for an old debt. In State v. Butte City Water Co., 18 Mont. 199, the owner of the building had given an order upon the defendant to the tenant to supply him with water. The tenant was •in possession of, and required and demanded the use of water for, the entire premises. The company refused to deal with the tenant, or to let him have water, notwithstanding the tender of payment for the entire building.

It needs no argument to show that these authorities are not decisive upon the question before us.

We find nothing in the action of the defendant which was unreasonable, or which will result in depriving complainant or any other tenant of the use of water. The object is apparent, — to relieve Morrison & Scott of the collection of the rates from their tenants, and to impose that duty upon the defendant.

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

The other Justices concurred.


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    BELDING v. MELOCHE.
    1. Land Contracts — Rents and Profits — Receiver Pending Foreclosure — Deficiency.
    A receiver, appointed to collect the rents and profits of premises pending foreclosure proceedings under a contract providing that, on default of the purchaser, the vendor may ■ re-enter without notice, may be required to pay over to complainant the money so received, to apply upon a deficiency remaining after sale, where the purchaser seeks to appropriate such funds, to the exclusion of complainant’s claim.
    2. Foreclosure — Personal Decree — Waiver.
    An objection that the complainant in a foreclosure suit was not entitled to a personal decree for a deficiency, because, upon the trial, his counsel stated that they did not ask a personal decree, is not available on appeal, where it was not set up in the answer to the petition for such decree, nor claimed upon the hearing.
    Appeal from Ionia; Davis, J.
    Submitted April 30, 1897.
    Decided May 28, 1897.
    Foreclosure bill by Milo M. Belding and Alvah N. Belding against Albert F. Meloche, Napoleon H. Meloche, and others. Complainants obtained a decree, and, after, a sale thereunder, filed a petition for the application of certain moneys in the hands of the receiver to the payment of a deficiency, and for a personal judgment for the balance then remaining due. From a decree for complainants, defendants Meloche appeal.
    Affirmed.

      McGarry & Nichols, for complainants.

      -R. A. Hawley, for appellants.
   Hooker, J.

On May 2, 1892, the complainants sold to the Meloches (two of the defendants), upon contract, a business block in the village of Belding, at an agreed price of 136,000, to be paid in 120 monthly installments of $800, without interest. The contract does not expressly state that the vendees shall be entitled to possession, but does provide that, in case of default, the vendors may—

“Elect to consider themselves released and discharged of and from any and all liability in any of the covenants specified to be done and performed by them, and all improvements made by the said parties of the second part shall be deemed forfeited as stipulated damages for the nonfulfillment of this contract, and said parties of the first part, or their authorized agent, may, without notice to quit or demand of possession, re-enter into and repossess the said premises, and the said parties of the second part, and each and every occupant hired by, through, or under them, to remove and put out; it being expressly understood that such failure of said second parties shall forfeit all claim, either in law or in equity, which might otherwise exist on the provisions of this contract in favor of the said parties of the second part.”

The vendees made default in the payments, and this bill of complaint was filed to foreclose their rights under the contract. At this time portions of the building were rented, and the bill prayed the appointment of a receiver, to receive the rents and profits of said premises, and such receiver was appointed, and has received said rents. A decree of foreclosure and sale was made, and, after the sale occurred, an order of confirmation was entered. No appeal was taken from any of the proceedings thus far. Subsequently, the complainants filed their petition, alleging that on March 9, 1896, a decree was entered for the complainants for the sum of $6,172.44 and costs, making a total of $6,648.30; that, at a sale of the interest of the Meloches in said premises, the complainants purchased the same for $3,000, and that there was, a deficiency of $3,648.30; that the final account of the receiver, duly filed, shows a balance in his hands at the date of the report of $2,349.36, which, after the allowance of compensation to and disbursements by the receiver, would leave $1,856.98, which the petition prays may be applied upon the deficiency, and that it be declared that the remaining deficiency constitute a personal judgment, upon which execution may issue against the Meloches. A decree was made in accordance with the prayer of the petition, and the defendants Meloche appeal.

It is claimed — First, that the court had no authority to appoint a receiver to take the rents during the foreclosure, and that the moneys collected should not be turned over to the complainants; second, that there should be no decree for a deficiency against the appellants, because," upon'the trial of the case, counsel for complainants stated that they did not care to ask a personal decree.

Counsel bases his first contention upon a class of cases which hold that, under 2 How. Stat. § 7847, the mortgagee is not entitled to the profits of land during foreclosure. See Wagar v. Stone, 36 Mich. 364. In that case the court said:

“Themortgagor is entitled to the possession during the proceedings taken to foreclose the mortgage, and until a sale has been made and the title of the purchaser has become absolute; and, until the title has become absolute upon a foreclosure of the mortgage, an action of ejectment cannot be maintained by the mortgagee, his assigns, or representatives, to recover possession of the mortgaged premises. 2 Comp. Laws, § 6263. Since the passage of this act, which prevents the mortgagee from obtaining possession until he has acquired an absolute title to the mortgaged premises, the mortgage binds only the lands. The rents and profits of the land do not enter into or form any part of the security. At the time of giving the security, both parties understand that the mortgagor will, and that the mortgagee will not, be entitled to the rents, issues, or profits of the mortgaged premises until the title shall have become absolute upon a foreclosure of the mortgage. Until -the happening of this event, the mortgagor has a clear right to the possession and to the income which he may derive therefrom; and the legislature, by the passage of this statute, contemplated that he should have such possession and income to aid him in paying the debt. It would be a novel doctrine to hold that the mortgagee had a right to the profits incident to ownership, and yet that he had neither a legal title nor right to possession. The legislature, in depriving him of the means of enforcing possession, intended thereby also to cut off and deprive him of all rights which he could have acquired in case he obtained possession before acquiring an absolute title. To deprive him of this particular remedy, and yet allow him in some other proceedings to, in effect, .arrive at the same result, would be but a meaningless proceeding, and would not be securing to the mortgagor those substantial rights which it was the evident intent he should have. We do not overlook the fact that a contrary doctrine has been held elsewhere under a similar statute. We cannot avoid thinking, however, that for us to so hold would be but a mere evasion of our statute.”

In Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392, 402, we recognized the validity of a contract whereby possession by the mortgagee may precede foreclosure ; arid the case of Wagar v. Stone shows that in other States possession may be given to receivers pending foreclosure of mortgages, and the decision in that case is made to rest upon the statute. The statute does not in terms apply to equitable mortgages, if we should hold this to be one. In the Wagar Case the court said that the object of the legislature was that the mortgagor “should have possession to aid him in paying the debt;” but in this case the vendees seek to avoid the payment of the debt, and to appropriate the fund in the hands of the receiver, to the exclusion of the complainants’ just claim.

Again, it is contended that the complainants are not entitled to a personal decree for the deficiency. This claim seems to rest upon an alleged waiver or estoppel, by what occurred upon the hearing of the original case. It does not appear to have been set up in the answer to the petition, and is said not to have been claimed in the circuit court upon the hearing. We do not discover that this statement is disputed.

Under these circumstances, we think the order of the circuit court in chancery should be affirmed, with costs; and it is so ordered.

The other Justices concurred.


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    SHERWOOD v. COMMISSIONER OF STATE LAND OFFICE.
    1. Waters — Island in Great Lakes — Title.
    The fee to an unsurveyed island in one of the Great Lakes, situated several hundred feet distant from the mainland, is in the State, and not in the riparian owner.
    2. Same — Lake Huron — What Waters Within.
    An island lying contiguous to the mainland of the Upper Peninsula, between Detour Passage and St. Joseph Island, is within the waters of Lake Huron, and not in St. Mary’s river.

      Mandamus by William L. Sherwood against William A. French, commissioner of the state land office, and James T. Bennett, to compel the respondent commissioner to execute a conveyance of certain lands to the relator.
    Submitted May 4, 1897.
    Writ granted May 28, 1897.

      John W. Shine, for relator.

      Fred A. Maynard, Attorney General, for respondent commissioner.

      Oren & Webster, for respondent Bennett, shore owner.
   Hooker, J.

The relator asks a mandamus to compel a conveyance by the state land commissioner to him, as purchaser, of a small, unsurveyed island, lying contiguous to, and 600 feet distant from, the mainland of the Upper Peninsula, between Detour Passage and St. Joseph Island, at or near the north end of Lake Huron. Upon the one hand, viz., by the relator, it is contended that this island is situated in Lake Huron; upon the other, that it lies in St. Mary’s river, and is, therefore, owned by the proprietor of the adjoining land, who is said to own to the thread of the stream. We are of the opinion that this island is within the body of water known as Lake Huron, and therefore that the case is within the'rule of People v. Silberwood, 110 Mich. 103.

The writ should issue, and it will be so ordered.

The other Justices concurred.