author: Moore, J.

text:
    BREEN v. HYDE.
    1. Drains — Flooding Land — Evidence—Excessive Rains.
    In an action for flooding land, plaintiff claimed that defendants, by means of ditches, collected water upon their lands, and also the adjoining highway, and projected it upon his land, destroying his crops. Defendants claimed that the injury was caused, not by their act, but by an unusually wet season. Held, that it was error to exclude evidence in rebuttal tending to show that the land was flooded and the crops as badly destroyed in succeeding years not having an excessive rainfall
    3. Same — Good Faith — Good Husbandry.
    Neither the absence of bad faith nor the necessity of good husbandry gives one the right to collect water upon his own land, and pass it through artificial channels, in unusual quantities, upon an adjacent proprietor.
    '3. Same — Highway Authorities.
    Highway authorities have no right to cut drains the necessary result of which will be to flood the lands of individuals, even if the drain is no larger or deeper than necessary to properly construct the road.
    4. Same — Evidence—Mitigation op Damages.1
    Testimony was admissible to show the amount of ditching required to remove the water from plaintiff’s land, as affecting the question of damages, under the principle that every man is bound to make the injury he suffers as light as possible.
    5. Same — Connecting Dependant with Injury.
    Where there was testimony by one of the defendants that he put culverts in the highway, and dug a ditch on his land for the purpose of collecting the surface water, and this ditch was connected with the highway ditch, the court will not say there was no evidence connecting him with the trespass.

      Error to St. Clair; Vance, J.
    Submitted January 9, 1902.
    (Docket No. 49.)
    Decided March 18, 1902.
    Case by Daniel Breen against John Hyde and Christopher Brandon, impleaded with Thomas Wrinn, for damages caused by flooding plaintiff’s land. From a judgment for defendants, plaintiff brings error.
    Reversed.

      A. E. Ohadwick and J. B. Mcllwain, for appellant.

      Phillips & Jenks, for appellees.
   Moore, J.

This suit was commenced in 1897. It was tried in 1899 by a jury. The court directed a verdict in favor of Thomas Wrinn, The jury found a verdict in favor of the other defendants. The case is brought here by writ of error.

A reference to the plat will aid in understanding the situation. The plaintiff is the owner of the E. -J of the S. E. ¿ of section 26. Mr. Hyde has a 40 acres directly south of this, and separated from it by a highway. Mr. Brandon owns the W. £ of the N. E. £ of section 35. It is plaintiff’s claim that, by means of ditches, Mr. Brandon and Mr. Hyde collected water upon their lands, and also from the highway, and projected it upon his land, so that his land was flooded and his crops destroyed. This is denied by defendants. They say that, in the course of nature, the water would pass from their lands over plaintiff’s land, and that the injury was caused, not by their act, but-by an unusually wet season.

The declaration, after setting out what was done by defendants, avers:

“And, by means of the construction of the said culverts and ditches aforesaid, the said land of plaintiff became submerged during the season for cultivation, and has been rendered unfit for cultivation and worthless; and, to wit, during the year 1895 and 1896, solely by means of said wrongful acts of defendants in collecting and delivering such large and increased quantities of water on plaintiff’s said lands, about 30 acres of crops of said plaintiff were totally destroyed, and said plaintiff was wholly unable to go upon said land to remove or care for said crops, consisting of potatoes, corn, wheat, and grass, by which said plaintiff lost the whole thereof, .of the value of $500.
“And the plaintiff alleges that because of the bringing of such large and increased quantities of water upon his land, and flooding the same, and remaining thereon, his land has become sour and unfit for cultivation, and said plaintiff has wholly lost the use of the same, or a large portion thereof, and the same has been greatly depreciated in value, to his great damage, in the sum of $1,000.
“And the plaintiff alleges that the continuance of said wrong, and the flowing of water from said artificial drains, constructed by said defendants on their lands as aforesaid, through said culvert, and unto the lands of said plaintiff, will entirely destroy said land for cultivation and use, and render it wholly worthless and valueless to said plaintiff, and permanently destroy the same, to the damage of said plaintiff of $2,000.”

It is alleged the judge erred in excluding the testimony of plaintiff that his land was flooded and crops destroyed as badly in 1897 and 1898 as in 1896, as tending to show permanent and continued injury from the continuing conditions, and to rebut the claim of defendants that the cause was excessive rainfall in 1896. It was claimed by defendants that the injury was caused, not by their act, but by the excessive rainfall of 1896.. We think it was competent to show, by way of rebuttal, that in the seasons of 1897 and 1898, when there was not an excessive rainfall, the same condition was produced on the land of plaintiff.

Portions of the charge require examination. The jury were told, among other things:

“I do not understand that the upper proprietor is forbidden to dig surface drains upon his lands. I understand that it is his right to construct such drains as he in good faith believes to be necessary in the interest of good husbandry, so long as he does not drain a larger area upon the land below than naturally flowed there, and so long as he does not construct drains sufficiently large to accumulate the water in unreasonably large quantities, and cast them in a body on the land below, to the injury of the land. And if he does no more than that, I understand he is not liable. * * *
“Now, in determining whether these ditches upon the line between Brandon and Hyde and on Hyde’s land were constructed there in good faith, and with no purpose of concentrating the water in large and unreasonable quantities and casting it upon Breen’s land, you have a right to take into consideration the lay of the land, the fall that appears to be from the south to the north in that locality, the size of the ditches, the amount of water they would carry off, the current that was in those ditches, so far as the testimony shows it, and take all the surrounding facts and circumstances into consideration, and from that determine whether, in the construction of these ditches, they were made larger than was reasonable or proper in the interest of good husbandry, taking the whole surrounding facts into consideration. If you find that they were not, and that they did not drain a larger area upon the plaintiff’s land than naturally flowed there, and they did not concentrate the water in unusual or large bodies and cast it upon the land of plaintiff, to his injury, then the defendants cannot be held liable for the construction of these ditches, even though the water may have run down these ditches instead of over the surface of the land.”

We think these portions of the charge are contrary to the decisions of this court as found in Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831); Yerex v. Eineder, 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113); Osten v. Jerome, 93 Mich. 196 (53 N. W. 7); Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367). The cases in 86 Mich. 24 (48 N. W. 875, 24 Am. St. Rep. 113), and 93 Mich. 196 (53 N. W. 7), contain so full a discussion of this feature of the case that we do not deem it necessary to repeat the discussion here.

The judge also said:

“ When the public authorities constructed that highway between Breen and Hyde, they had a right to construct it so that it would be passable, and it was their duty to do so; and if, under the circumstances, it became necessary to turnpike that road at that point, and put ditches on the side, to keep it dry and passable, they had a right to do it. It was the duty of the township authorities, when they constructed that road, if the water flowed from one side to the other, — no matter which way, — to put in culverts there to,accommodate that flow; and, had they not done so, the township would be responsible for any damage that might be occasioned by the highway damming back the water.
“If, in your opinion, when this highway was constructed between Breen, and Hyde, it was raised no higher above the surface, and the ditches were dug no larger or deeper, than was necessary to properly construct the road, and that the culverts were no larger than were necessary for the water that might flow there, even by storms, — because they must construct them large enough to accommodate any water that comes there, — then I say to you that the construction of that road cannot be used as a means of giving Breen any advantage over the proprietors above him. Neither can it give him any right to damage from them, if that fact were standing alone. On the other hand, if Brandon and Hyde were responsible for the manner in which that road was constructed, and it was turnpiked higher than there was any necessity for, and the ditches on the sides were dug deeper and larger than the needs of the locality, and that the purpose and object of that was to concentrate the water in large quantities there, to the detriment and injury of Breen below, they would be responsible for any injury that follows.”

This statement of the law is not in harmony with Cubit v. O’Dett, 51 Mich. 347 (16 N. W. 679), where it was said:

Highway authorities have no more right than private persons to cut drains the necessary result of which will be to flood the lands of individuals. This was shown in Ashley v. City of Port Huron, 35 Mich. 296 (20 Am. Rep. 622 [note], 24 Am. Rep. 552), where many authorities are referred to. The highway overseer, no doubt, has a discretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights he becomes liable. Tearney v. Smith, 86 Ill. 391. And when he is liable for a lawless act, all his assistants are liable with him for the consequent injury. Story, Ag. §§ 311, 312; Brown v. Howard, 14 Johns. 119; Coventry v. Barton, 17 Johns. 142 (8 Am. Dec. 376); Fiedler v. Maxwell, 2 Blatchf. 552 (Fed. Cas. No. 4,760); Tracy v. Swartwout, 10 Pet. 80; Smith v. Colby, 67 Me. 169. This rule sometimes, when the agent has acted in good faith and without knowledge of the want of legal authority, may seem to operate oppressively; but it is a necessary and very just rule notwithstanding, and full protection of the citizen in his legal rights would be impossible without it. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another.”

It is said the court erred in admitting testimony as to the amount of ditching required to remove this water through the Kennedy drain, because it assumed a right in defendants to artificially ditch all their waters onto and through him, and his duty to care for them and ditch them on his lower neighbors without their consent. Under the principle that every man is bound to make the injury he suffers as light as possible, we think this testimony was admissible as affecting the question of damages. See Cubit v. O’Dett, supra.

It is insisted that, as there is no testimony to connect Mr. Hyde with this trespass, the case should be affirmed as to him. In view of his testimony that he put the culverts in the highway in 1894, and that he dug the first ditch on his land in 1894 for the purpose of collecting the surface water, and this ditch was connected with the highway ditch, we do not think it can be said there is no testimony connecting Mr. Hyde with the injury, if there was one.

For the reasons stated, the judgment is reversed as to defendants Hyde and Brandon, and a new trial ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    RUSSEL WHEEL & FOUNDRY CO. v. HAMMOND, STANDISH & CO.
    Corporations — Superintendent—Salary—Indebtedness — Lien on Stock.
    A manufacturing corporation agreed to pay its retiring superintendent, who held stock in the company, a yearly salary, in consideration of which his services were to be subject to the call of the company, and any dividends on his stock were to revert to the company to the amount of the salary paid. He afterwards gave his notes to the company for the amount of the salary paid to him, and an order authorizing the treasurer to apply all his stock dividends to the payment of his notes. No dividends were made to apply on tlie notes. He was not called upon to render services, though he held himself in readiness. Held, that he was indebted to the company, and that the company had a lien on his stock for the amount of salary paid, which might be enforced under section 7052, 2 Comp. Laws.
    Appeal from Wayne; Frazer, J.
    Submitted January 9, 1902.
    (Docket No. 39.)
    Decided March 18, 1902.
    Bill by the Russel Wheel & Foundry Company against Hammond, Standish & Company to enjoin the sale of certain corporate stock. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Walker & Spalding, for complainant.

      Charles W. Casgrain, for defendant.
   Moore, J.

The complainant, holding as collateral an assignment of stock of C. H. Meday in the defendant corporation, filed this bill to enjoin the defendant from selling that stock to enforce an alleged lien of its own for indebtedness of Mr. Meday. The circuit judge dismissed the bill of complaint, and the case is brought here by appeal.

Defendant is a corporation under the general manufacturing act. Its proceedings to enforce its lien were regular in form. The dispute is upon the existence of the debt for which the defendant’s lien is claimed. It turns mainly upon the effect of certain payments of money made by defendant to Mr. Meday, and of the giving of certain notes by him for the amount so received. For many years before December, 1895, Mr. Meday had been the superintendent of the Detroit packing houses of Hammond, Standish & Co., on a salary of $3,500 per year. The Hammond family held a majority of the stock in the company. One of them (George H. Hammond) was president, and his brother Charles F. was a director. In November, 1895, George H. Hammond expressed to Mr. Meday a wish for his resignation, because he himself wanted to be more active in the business, and have entire control and supervision. Soon after a verbal agreement was made between the two Hammonds and Mr. Meday, pursuant to which Mr. Meday tendered his resignation, to take effect December 1st, and sent the secretary of the company a letter stating the terms of the agreement consequent upon his retirement from the superintendency, so far as concerned the company, to be (1) his retention on the board of directors while he remained a stockholder; (2) that he was to receive $3,000 yearly, payable at the office of Hammond, Standish. & Co.; (3) future dividends on his stock up to that amount to be remitted to Hammond, Standish & Co.; (4) the agreement to be annulled by death. At a directors’ meeting held 10 days later, the following resolution was introduced by G. H. Hammond, and carried:

“ That Mr. C. H. Meday be paid a salary at the rate of §3,000 per annum, payable in monthly installments, for the year ending the 1st day of November, 1896, in consideration of which Mr. Meday’s services are to be subject to the call of the company on reasonable notice, and any dividends on stock standing’ in his name are to revert to the company to the amount of salary paid, namely $3,000. Should the dividends declared exceed the amount of $3,000, the excess to be paid to Mr. Meday.”

Mr. Meday held himself in readiness to respond to the company’s call for his services, leaving his address with some one in the office whenever he went out of town, so that he might be summoned if necessary. This continued during 1897. He was not called on for service. He drew the money monthly, beginning in December, 1895. '

On January 19, 1897, a directors’ meeting was held, at which Mr. Meday was present until requested to retire, that his own matter might be considered. After he was gone, the following resolution passed :

“On motion, duly made and seconded, it was voted that the company continue to advance Mr. Meday the sum of $250 per month until November 1, 1897, providing the proper arrangements can be made with him securing same, together with the amount advanced him last year, by an assignment from him of any dividends that may be declared on stock in the company now standing in his name.”

At the time of the original resolution of December, 1895, the company was prosperous, and it was expected it would pay dividends. No dividends were declared after 1895 until March, 1899,

Some time after the meeting of January 19, 1897, at which the second resolution was passed, Mr. Standish sent for Mr. Meday, and had a conversation with him, in which he read to him what purported to be a copy of the resolution passed at the January meeting; stating that the resolution required Meday to give his notes for the moneys drawn, including those already drawn. At the time of this interview Mr. Meday had received from the company $3,500. He then executed five notes, at the request of Mr. Standish, aggregating $3,500, and dated, respectively, February 1, May 1, August 1, and November 1, 1896, and February 1, 1897. He also gave a dividend order, authorizing Mr. Standish, as treasurer, to apply all dividends that might be made on his stock towards the payment of his notes, until same are paid in full. Mr. Standish. after-wards sent him, as a copy of the resolution of January 19th, the following:

“Voted, that the company continue to advance to Mr. C. H. Medajr the sum of $250 per month until November 1, 1897, taking his notes for said amounts, and for the amounts advanced him during the year which ended November 1, 1896, with his order to the treasurer of the company to apply dividends on 1,232 shares of stock standing in his name until said notes be paid in full.”

Mr. Meday afterwards drew $250 a month in March, April, and May, 1897, giving notes therefor, which, with the five already given, are those representing the amount in controversy. Further sums were drawn and notes given therefor at later dates, but these have been retired by payment out of dividends, and are not in question. At the time the notes were given, Mr. Standish testified, Mr. Meday said:

“Why, Mr. Standish, there is no question about this. I am not a pensioner. I do not want any gratuities or anything of that kind; I expect to pay this all back.”

Mr. Meday does not deny this. No demand of payment of the notes was ever made on Mr. Meday, and no attempt was made to collect them until the defendant gave notice of sale to enforce its lien in June, 1900.

The record indicates that Mr. Standish gave Mr. Me-day to understand when the notes were given that the resolution of January 19th made his receiving further moneys conditional upon his giving the company his notes for all moneys, including what he had already received under the former resolution, as well as an order for the application of dividends in payment' thereof, and that he afterwards sent him, as a copy of the resolution, one making those conditions. Mr. Standish explains the matter by saying that, at the meeting of January 19th, two or three forms of resolutions were drawn, and the board adopted the first one which recommended itself, — the form which did not provide for the notes. The memoranda of these resolutions he carried on blocks of pencil paper in an envelope, and by an error the draft of the resolution mentioning the notes got into the minutes of a meeting held on March 12th, and the copy of it sent Mr. Meday was prepared without any intent to deceive him.

The question involved is one of fact. The testimony is not clear, and the solution of the question is a difficult one. If the proposition of Mr. Meday to the company, and the resolution of December, 1895, and the payment of the $3,000 thereunder, were all there was of the transaction, it would not be so difficult; but that was not the end of the transaction. It is apparent that, when that resolution was adopted, it was expected the business of the company would be so profitable there would be dividends upon the stock owned by Mr. Meday, which might exceed the amount which was paid to him; and, in case they did, the excess was to be paid to him, otherwise to the company. It is apparent the $3,000 was not to be paid for services alone. The expectation of Mr. Meday and the company as to dividends was not met. Subsequently advances were made to Mr. Meday under the circumstances before stated. It does not appear that he objected to giving his notes, or that he made any claim at that time that the money he received was simply a payment of salary, or, if it was not, it was to be paid, if paid at all, out of the dividends earned during the year in which it was paid. On the contrary, all the parties seem to have treated the advanees made as a debt which Mr. Meday ultimately expected to pay, and for which he was willing to give his notes. In fact, not only the notes involved here were given, but, when later advances were made to him, he gave other notes, which have been retired by applying upon them subsequent dividends. It is not questioned that, if Mr. Meday owed the defendant, it had a lien upon the stock, which might be enforced under the provisions of section 7052, 2 Comp. Laws.

The decree is affirmed, with costs.

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


author: Montgomery, J.

text:
    DE KRUIF v. FLIEMAN.
    1. Contract — Agency—Purchase,
    Defendant entered into a contract to sell drills for a company, in which he agreed' to pay for machines sold at net prices named therein, to pay in notes for machines ordered and not sold, or return machines, at option of the company; all machines unsold, and proceeds of sales, to he the property of the company. Held, that it was a contract of purchase, and not of agency.
    2. Same — Statute of Limitations — Acknowledgment.
    A letter written by defendant to plaintiff, asserting a claim to the drills, and a desire to retain them, in response to a demand for a settlement, was a sufficient acknowledgment in writing to interrupt the running of the statute of limitations.
    Error to Ottawa; Padgham, J.
    Submitted January 14, 1902.
    (Docket No. 134).
    Decided March 14, 1902.

      Assumpsit by Henry De Kruif against Jacob Elieman for goods sold and delivered. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      John G. Post ( Walter I. Lillie, of counsel), for appellant.

      George E. Kollen (G• J- Diekema, of counsel), for appellee.
   Montgomery, J.

This case comes before us on a special finding of facts and law. The plaintiff sues as the assignee of the Superior Drill Company. The defendant received from the Superior Drill Company a number of drills, three of which are in controversy here. The question is whether, under this contract, the defendant became a purchaser of the drills, or was simply the agent of the Superior Drill Company.

The contract is lengthy, but it contained, among other provisions, a clause that:

“All machines sold by second party [defendant] shall be settled for during the season in which they are received,' at net prices herein named. If any machines remain unsold at time of settlement, the first party may require second party to give his note, payable in 12 months, in settlement for the same; or, if first party prefer, said machines shall remain the property of first party, and subject to their order, free of charge.”

The defendant, by other provisions of the contract, agreed to receive the machines on arrival, pay freight, and take proper care of them. The contract' further provided that:

“All machines and proceeds of sales under this contract, whether in notes, cash, or accounts, shall be the property of the first party, held in trust in the hands of the second party; and proceeds of sales, whether in cash or notes, are to be turned in to first party as fast as received by second party.”

A further provision reads:

“ Second party agrees to receive, at any time after date, all the within-named machines that have not been previously ordered out by second party; all additional machines as ordered. Spring sales payable one-half June 1, 1893, one-half October 1, 1893. Fall sales payable one-half October 1, 1893, one-half September 1, 1894. With interest not less than 7 per cent, per annum from June 1st on spring sales and October 1st on fall sales. Final settlement to be made not later than June 1st on spring sales and October 1st on fall sales of current year.”

The evidence shows that these machines came into the hands of defendant, and that the three machines in controversy were on the 28th of February, 1896, in his possession. At that date he wrote to plaintiff a letter, which, among other things, contained the following language:

“Now, one thing more: I want those drillb, three of them, which you claim. I am not going to lose any money on them, as you are trying to make me do so.”

This was in answer to a letter written by plaintiff, as follows:

“Allow me to again call your attention to the account of the Superior Drill Company’s bill, still unsettled, and long past due. You are aware that this account has been turned over to me, and, as I am in need of funds, would kindly, though urgently, request that you adjust this matter without further delay. Should you desire to sell me the goods at present value, I will consider and accommodate you, if possible. You understand, however, drill trade is in worse condition than any other manufacturing of this class, — suffer more, and consequently offer at extremely low price now.”

The circuit judge found that this contract obligated defendant to pay for these drills, and we think this is the proper construction of the contract. It is contended by defendant that the contract simply constituted defendant agent of the Superior Drill Company. It is true that, in a sense, he was an agent of the Superior Drill Company, and that the drill company reserved the title to the property. But such an engagement is not inconsistent with an obligation on the part of the defendant to pay for the drills, and this, we think, he undertook to do by the agreement. Aspinwall Manfg. Co. v. Johnson, 97 Mich. 531 (56 N. W. 932).

It is next urged that the statute - of limitations has run against the claim. The circuit judge found that in the letter of February 28, 1896, which was within six years of the commencement of the action, defendant obligated himself to pay for the machines, and we think this is correct. Up to this time the plaintiff had not demanded a settlement by note. The title to the machines, by the terms of the contract, remained in the plaintiff, and at this date defendant asserted a claim to them, and a desire to retain them, and he could only do so upon paying the contract price.

We find no error in the proceedings, and the judgment will be affirmed.

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


author: Hooker, C. J.

text:
    TRAVIS v. PARKS.
    1. Bill by Administrator — Parties—Interest.
    A bill to set aside a conveyance, filed by an administrator on behalf of the estate, must be considered as attacking the deed for the benefit of all persons interested in the estate, even if not parties to the suit.
    2. Appeal — Opinion—Question op Pact.
    In this case the question is largely .one of fact, and a long opinion, reviewing and analyzing the testimony, is deemed unprofitable.
    Appeal from Clinton; Stone, J.
    Submitted January 28,1902.
    (Docket No. 84.)
    Decided March 18, 1902.
    Bill by Charles Travis, administrator of the estate of Israel M. Bray, deceased, against Frank M. Parks and Edith M. Parks, to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Henry E. Walbridge and Lyon & Moinet, for complainant.

      Spaulding, Norton & Looting, for defendants.
   Hooker, C. J.

This is a bill filed by an administrator for the cancellation of a deed given by his intestate to his daughter and her husband, and for an accounting. The question is largely one of fact, and is not distinguishable from the ordinary case in its nature. Our examination of the record has been critical, and has satisfied us of the justice of the conclusion reached by the learned circuit judge who heard the cause. A long opinion would amount to no more than an unprofitable review and analysis of the testimony, which would be of no interest or value to the profession at large, and would be likely to add to the estrangement already existing between some members of the intestate’s family. In such cases there is usually an opportunity for differences of opinion upon the subject of mental competency, especially under the influence of self-interest. That seems to be so in this, instance.

It is urged that the decree must be modified, and that the relief granted should not extend to the interest of Mrs. Irrer, who is said to have contended for the validity of the deed to defendants. The bill was filed by the administrator on behalf of the estate. Mrs. Irrer is not a party. Even had she been made a party defendant, and had an opportunity, therefore, to appeal, there was no occasion for her to do so, if satisfied with the decree. The administrator must be considered as attacking the conveyance for the benefit of all persons interested in the estate, under the circumstances of this case.

The decree is affirmed, with costs.

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


text:
    TRAVERSE CITY GAS CO. v. MAYOR AND COMMON COUNCIL OF CITY OF TRAVERSE CITY.

    1. Ordinances — Gas Pipes — Streets—Power oe Council.
    Under a city ordinance granting a gas company the use of “any and all of the streets, lanes, alleys, and public grounds” for the purpose of laying iron pipes for gas, subject “to such rules and regulations as the council may from time to time prescribe,” and providing that “main pipes shall be laid in alleys whenever practicable, and when so ordered by the council,” the city may require main pipes to be laid in the alleys, although they are not as well adapted to the laying of mains as the streets, and a large additional expense will be incurred.
    2. Same.
    A gas-light company organized under chapter 190, 2 Comp. Laws, can only use the streets of a city with the consent of the common council.
    3. Ordinances — Construction.
    Ordinances conferring grants are construed liberally in favor of the public.

      Certiorari to Grand Traverse; Mayne, J.
    Submitted January 28, 1902.
    (Calendar No. 19,122.)
    Decided March 18, 1902.

      Mandamus by the Traverse City Gas Company to compel the mayor and common council of the city of Traverse City to grant the right to lay gas pipes in certain streets. From an order denying the writ, relator brings certiorari.

    Affirmed.

      George E. & M. A. Nichols (Pratt & Davis, of counsel), for relator.

      George H. Cross, for respondent.

      Rehearing denied April 22, 1902.

   Moore, J.

This case was commenced by petition for mandamus from the circuit court of Grand Traverse county to the mayor and common council of the city of Traverse City, directing the mayor and common council to convene, and grant to the petitioner the right to lay its main gas pipes in certain streets of said city. The circuit judge refused to grant the relief prayed. The case is brought here by certiorari to review his action. The important question involved is, What are the rights of the respective parties under an ordinance granted in January, 1901? three sections of which read as follows: Section 1 provides:

“That H. B. Webber and E. F. Gallagher, of Ionia, Michigan, their associates, successors, or assigns, as individuals, or as a body corporate, under the name of the Traverse City Gas-Light Company, be and they are hereby authorized to use, ‘ for the term of thirty years from the passage of this ordinance, subject to the provisions of this ordinance and to such rules and regulations as the council of said city may from time to time prescribe, any and all of the streets, lanes, alleys, and public grounds in said city, including any territory that may hereafter be added to the same, for the purpose of constructing and maintaining a gas-light plant in said city, and to lay down and maintain in said streets, lanes, alleys, and public grounds, from time to time, as said company, its successors or assigns, may deem expedient, iron pipes for carrying gas for supplying said city and the inhabitants thereof with gas: ’ Provided, that said company shall not unnecessarily obstruct the passage of any street, lane, alley, or public ground, and shall, within a reasonable time after making an opening or excavation for the purpose aforesaid, repair the same, and leave it in as good condition in all respects as before such excavation was made.”

Section 7 provides:

“That said main pipes shall be laid in alleys whenever practicable, and when so ordered by the council. Said grantees, before laying any such pipes in the streets, alleys, highways, and public places in said city, must first obtain permission therefor from the council upon application in writing.”

Section 9 provides:

“That twenty-four hours before opening any street, alley, or public place, the said grantees shall give notice to the board of public works in writing of such intention, stating the place where and the object for which such opening is to be made, and shall obtain from the board of public works a permit therefor.”

In pursuance of the requirements of the ordinance, Webber and Gallagher made application to the common council for permission to lay main pipes on certain streets of said city, which was referred to the street committee, and the request granted upon their report. At the time of making the report granting the request referred to, the street committee, upon its own motion, granted permission to lay the main pipes on territory extending beyond that to which permission was asked, which system, as reported by the committee, may be called a “system through the alleys.” Webber and Gallagher refused to accept the permission so gratuitously extended, claiming they did not deem it expedient or practicable to lay the main pipes as designated and prescribed in said report, on account of the large and extra outlay in laying the pipes and in making connection with consumers.

On July 15, 1901, Webber and Gallagher asked for per.mission to lay the main pipes upon a number of streets in the said city beyond the permits already granted. The common council, upon receiving this application, laid the same on the table, and assigned as a reason that certain property owners and citizens living upon Union street and Sixth street had remonstrated because of the fear of the, citizens that escaping gas from the main pipes might kill the shade trees along said streets, and further claiming that it was practicable to lay pipes in the alleys; and said council insists upon petitioner laying its pipes according to the plan in the places so reported by the street committee to the common council, and adopted by it, claiming that, under section ? of the ordinance, said council has the right to require the pipes to be laid in the alleys, and that they are judges of whether it is practicable or not.

The petition alleges that before it was filed, and after the ordinance was granted, petitioner had made an investment of $35,000 to begin and erect its plant that was then in process of construction. It avers the. council has no right to compel the relator to put its pipes in the alleys, and that it will cost a good deal more to do so than in the streets.

The council answered this petition, and insisted it was practicable to use the alleys. It denied the relator had made application for the use of the streets described in its petition. It admitted a communication from the relator in reference thereto, and claimed that the council was ready to receive and entertain and act upon any and all proper petitions to lay pipes in the alleys or streets, but stated that “it was the intention of the council to require the main pipes to be laid in the alleys whenever practicable so to do, and when, in the exercise of the judgment and discretion of the council, it shall deem it advisable and expedient to do so.” It is claimed in the answer that the laying of the mains in the streets would kill the shade trees; that preparations are being made to pave the principal streets of the city in the immediate future with asphalt pavement, and, if the pipes are laid in the streets, it will prevent the use of that kind of pavement, because the escaping gas will disintegrate and destroy such pavement, and such has been the experience of cities where gas mains have been laid under asphalt pavement.

At the request of the relator certain questions were submitted to a jury. The jury made findings in relation to these questions. Those we deem material are as follows:

‘ ‘ The difference in expense in laying the main pipes to petitioner between the two plans was $2,723.50.
“ The difference in expense in connecting with consumers between the two plans was $4,330.
“That 104 more consumers could be reached under the city’s plan than the relator’s plan.
“That certain alleys were not as well adapted in their present condition for laying main pipes as the streets.
“That the alley between State street and Front street from Union street to Franklin street, the alley between State and Washington streets from Park street to Franklin, the alley between Sixth and Seventh from Bohemia to Oak, the alley between Eighth and Ninth from Bohemia to Oak, the alley between Ninth and Tenth from Bohemia to Oak, Bohemia street from Sixth to Twelfth, alley east of Union street from Seventh to Twelfth, alley between Eighth and Ninth, Ninth and Tenth, Tenth and Eleventh, Eleventh and Twelfth, to Lake avenue, being adjacent to the streets the use of which was demanded by the relator, were as well adapted for laying gas mains as the streets.
“That the extra expense in reaching consumers and laying main pipes under the city’s plan would deprive the relator of its profits for two and one-half years.”

It is insisted on the part of the respondent that mandamus is not the proper remedy; that, if it was, the writ is prematurely brought. We do not deem it necessary to pass upon these two questions.

In the brief, counsel for relator say:

“ When the city granted the franchise to relator by section 1, it invested the relator with the absolute right to lay its pipes in any of the streets, alleys, or public places in said city, whenever the relator might deem it expedient so to do. City of Kalamazoo v. Kalamazoo, Heat, Light & Power Co., 124 Mich. 74 (82 N. W. 811).”

We think counsel state the rule wrongly. A reference to the case will show that, in the franchise there granted, the city failed to reserve the right to say where the pipes should be laid, and it was said, in view of that situation:

“It is doubtless true the ordinance was not a wise one to make, but it was within the power of the council to make it, and the city is bound by its terms.”

It is not probable, had the city reserved the right to have the pipes laid in the alleys, the reservation would not have been upheld.

Section 7123, 2 Comp. Laws, which defines the general powers of these companies, among other things provides the pipes “ shall be laid with the consent of the municipal authorities of such cities, townships, or villages through which the same are laid, under such reasonable regulations as they may prescribe.” In People v. Gas-Light Co., 38 Mich. 154, it is said:

“The State has shown by the incorporating act that public policy is not opposed to, and is in favor of, allowing gas companies to exist, as they only can exist by having power to lay their pipes. The consent of the municipal corporation is required because the terms on which streets may be safely allowed to be occupied for the purposes of laying gas pipes can be best determined by leaving the regulation to be harmonized with all other exigencies by the authorities controlling their use. The law contemplates that permission will not be unreasonably refused or unreasonably burdened, but regards the municipality as competent to determine the proper conditions for itself.
“The exercise of the power of using streets for laying-gas pipes is rather an easement than a franchise, and a similar power is used as often for private drainage and other purposes as for more general purposes. It is a matter peculiarly local in its character, and which should always be, to a reasonable extent, under municipal supervision, to prevent clashing among the many convenient uses to which ways must necessarily be subjected for water, drainage, and other urban needs. ”

In Rapid Ry. Co. v. City of Mt. Clemens, 118 Mich. 133 (76 N. W. 318), it was held that a street-railway company which is authorized to put in a Y at a given street, with the proviso that the company shall, if so ordered by the common council, remove the Y within 60 days after service upon it of a copy of an order requiring the removal, is bound by the proviso, and must remove the Y. See, also, Citizens’ Electric Light & Power Co. v. Sands, 95 Mich. 562 (55 N. W. 452, 20 L. R. A. 411); Detroit Citizens’ St. Ry. Co. v. City of Detroit, 110 Mich. 384 68 N. W. 304, 35 L. R. A. 859, 64 Am. St. Rep. 350); City of Saginaw v. Swift Electric Light Co., 113 Mich. 660 (72 N. W. 6); Horner v. City of Eaton Rapids, 122 Mich. 117 (80 N. W. 1012). Ordinances conferring-grants are construed liberally in favor of the public. City of Detroit v. Railway Co., 95 Mich. 456 (54 N. W. 958, 20 L. R. A. 79, 35 Am. St. Rep. 580).

‘ ‘ In this case the council, unlike the council in City of Kalamazoo v. Kalamazoo Heat, Light & Power Co., supra, reserved to itself the right to say “ that said main pipes shall be laid in alleys whenever practicable, and when so ordered by the council,” and required the corporation, before laying pipes, to obtain the permission of the council. The first time permission was granted to lay any pipe the same committee which reported in favor of granting that permission reported out the present plan, which was adopted at the same time the permission was given. Before a foot of pipe was laid by the corporation, it knew what interpretation the council put upon the provisions of section 7. The provisions of this section are as much a part of the agreement the relator has with the city as any part of it. If the contention of the relator is to prevail, the attempts of common councils, when granting like franchises, to safeguard the interests of the city or village for which it is acting, will prove abortive, and, when the franchise is once granted, the control of the city or village over the streets is lost. It has not been made to appear that the laying of the pipes in the alleys as required by the council is not practicable.

The order of the circuit court is affirmed.

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


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    DORENBERG v. OCKERMAN.
    1. Mortgages — Tax Title — Purohase for Benefit of Mortgagor.
    Where a mortgagor negotiates the purchase of a tax title, tali, ing a conveyance to his brother-in law under an agreement by which the latter contracts to sell to the mortgagor’s wife upon the-repayment of the purchase price, and which he has in large part paid, the transaction will be considered one in the interest of the mortgagor.

      2. Same — Foreclosure—Covenants.
    In a suit to foreclose the mortgage, the holder of the tax title cannot defend on the., ground that the wife was not bound by the covenants in the mortgage, and therefore not incapacitated from purchasing the tax title.
    Appeal from Montcalm; Davis, J.
    Submitted January 28, 1902.
    (Docket No. 82.)
    Decided March 18, 1902.
    Bill by Edward J. Dorenberg and Elizabeth Dorenberg against William M. Ockerman, Lucy Ockerman, and John W. Salmon to foreclose a mortgage. From a decree for complainants, defendant Salmon appeals.
    Affirmed.
    Bill to foreclose a mortgage given by defendants William M. Ockerman and wife. The land was sold for taxes accruing after the giving of the mortgage, and defendant Salmon, Mrs. Ockerman’s brother, on the urgent appeal of Mi’S. Ockerman, bought the title of the grantee of the State, paying $75 for it, and executed a so-called lease to Mrs. Ockerman, in which he agreed to rent the premises to Mrs. Ockerman for a term of five years at $25 per year, Mrs. Ockerman to pay the taxes and insurance, and by which he further agreed to sell the premises to her, at any time during the life of the lease, "for $100 and interest, applying the rent upon the purchase price. The deed to Salmon and the so-called lease were drawn by Mrs. Ockerman’s attorney, without consulting Salmon, and Salmon consented to the arrangement. At the time of the trial, Mr. Ockerman had paid Salmon over $50, — it does not appear definitely how much, Salmon testifying that money paid by Ockerman on the defense in the present case was to be applied on the purchase price, — and it was understood between the parties that, when Mr. Ockerman had paid the full $100 and interest, defendant Salmon should, if requested, deed to Mrs. Ockerman. It does not appear that Mrs. Ockerman'has herself ever paid anything on the lease. The court found that Salmon had no title or equity as against complainants, but held his title in trust for the use and benefit of Ockerman.

      N. O. Griswold, for complainants.

      George IS. & M. A. Nichols, for appellant.

       See Baker v. Union Trust Co., 129 Mich. 581 (89 N. W. 345), for a similar case of purchase by a husband in the name of the wife.

   Montgomery, J.

(after stating the facts). The defendants seek to give the case the color of an absolute purchase by Salmon and a sale to Mrs. Ockerman, and contend that there was nothing in the relation of Mrs. Ocker-man to the mortgaged property which incapacitated her from becoming a purchaser of the tax title, as she was not bound by the covenants of the mortgage. We do not find it necessary to enter into any extended discussion of the law of the case on the assumption, that Mrs. Ocker-man was the real purchaser. It is true the parties sought to give the transaction that complexion, but we do not so find the fact. The testimony shows that Ockerman himself negotiated the purchase from Brown, and it also appears by defendant Salmon’s own testimony that Ockerman has repaid him the purchase price, in large part. We are fully satisfied, therefore, that this transaction was one in the interest of Ockerman, and that he has furnished all the funds which have been applied to the repayment of Salmon.

The only doubt we have is as to whether Salmon has been fully repaid. The facts relating to this question rested peculiarly within the knowledge of Salmon himself, and he, while admitting that he had received $50 to $75, was unable to tell whether Ockerman had, in addition, paid, in expenses of litigation, — which were, by agreement, to be applied upon the purchase price, — enough to satisfy the remainder of the purchase price. Under these circumstances, we are not disposed to disturb the decree below.

Decree affirmed, with costs.

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


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    MARVIN v. HARTZ.
    1. Assignment oe Lease — Recovery of Possession.
    Where a lessee covenants not to assign, the lessor, who has not consented to the assignment, may recover possession from the assignee of the lessee, under the provisions of 3 Comp. Laws, § 11164.
    2. Possession oe Land — Summary Proceedings — Estoppel.
    Where the complaint and summons complied with sections 11165, 11166, 3'Comp. Laws, relating to summary proceedings to recover possession of land, a statement by complainant’s counsel, in his opening to the jury and in his argument to the court, that the complaint was made for a forcible detainer, does not estop complainant from recovering under the statute relating to summary proceedings.
    Error to Wayne; Donovan, J.
    Submitted January 28, 1902.
    (Docket No. 75.)
    Decided March 18, 1902.
    Summary proceedings by Curtis W. Marvin against John C. Hartzto recover the possession of land. From a judgment for defendant on verdict directed by the court, complainant brings error.
    Reversed.
    - Tarsney & Fitzpatrick (Frank F. Dor emus, of counsel), for appellant.

      Adolph Sloman, for appellee.
   Montgomery, J.

This case originated before a circuit court commissioner, and is a summary proceeding instituted to recover possession of land. • The case found its way into the circuit court, and, on a trial before the court and a jury, a verdict was directed for the defendant, and the complainant brings error.

The evidence on the trial tended to show that the complainant leased these premises to one Jacob Berlin; the lease containing a covenant by the lessee not to assign or transfer the lease, or sublet the premises, or any part thereof, without the written assent of the lessor. The lease also provided that, if default should be made in any of the covenants therein contained, it should be lawful for the first party to re-enter into and repossess the premises, and the said party of the second part, and each and every other occupant-, to remove and put out. The evidence tended to show that Berlin assigned his lease to defendant, Hartz, without the consent or approval of the complainant, and this proceeding was thereupon instituted.

It was stated in Randall v. Chubb, 46 Mich. 311 (9 N. W. 429, 41 Am. Rep. 165), that an unauthorized assignment of a lease, and attempt to give the assignee possession, works a forfeiture of the lease, and that the lessor may take immediate steps to recover the premises. This case was followed in Lewis v. Sheldon, 103 Mich. 102 (61 N. W. 269). These cases were cases where the lease was found to be personal, because of the character of the tenancy. But where the lessee covenants that he will not assign, and the lease further provides that a breach of such covenant shall work a forfeiture, it is even clearer that the complainant may repossess himself of the premises. We think that, if the case as asserted by complainant was sustained, the tenant was holding contrary to the provisions of the lease, and that the case falls within the provisions of 3 Comp. Laws, § 11164.

But the case was determined below upon the ground that this was a proceeding under the forcible entry and detainer act, and that as it did not appear that the defendant entered, by force, or continued in possession of the premises by force, complainant was not entitled to maintain the action. The pleadings in the case consisted of the complaint and summons, which complied with 3 Comp. Laws, §§ 11165, 11166. It appears that the complainant, in his opening statement to the jury and in his argument to the court, claimed that the complaint was made and this proceeding brought for forcible detainer, under the statute relating to forcible entries and detainers, being chapter 286, 2 How. Stat. This chapter is headed,, “Proceedings to Recover the Possession of Land in Certain Cases,” followed by a subtitle, “Of Forcible Entries and Detainers,” and after section 11 another subtitle, “ Summary Proceedings to Recover the Possession of Land in Other Cases.” For some reason the title, “ Forcible Entry and Detainer,” is carried forward at the top of the page throughout the entire chapter relating to summary proceedings, — an error which is corrected in 3 Comp. Laws 1897. The question is whether anything that appears in the record ought to be held to estop the complainant from now arguing that a forcible detainer was not essential to the maintenance of the case. We think not. It is not a case where the complainant has shifted his proofs, nor where the pleadings were hot sufficient to apprise the defendant of the case he is called upon to meet. When the complainant rested his case, the defendant took the initiative, and moved for a directed verdict. The most that can be said is that the complainant did not make his right clear to the court. The defendant ought not to complain that his own motion was granted because the argument of the complainant did not meet the contention which he (defendant) erroneously made.

The judgment will be set aside, and a new trial ordered.

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


author: Grant, J.

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    MEECH v. WILDER.
    1. Deed — Escrow.
    The delivery of a deed by the grantor to a stranger, to be by him delivered to the grantee after the death of the grantor valid.
    2. Same — Delivery to Grantee.
    A deed which had been delivered by the grantor to a stranger, to be delivered to the grantee after the death of the grantor, contained the following clause: “This deed is to be delivered and recorded to the grantee on the death of both of the grantors.” Held, that the delivery mentioned in said clause referred to the delivery to the grantee for recording, and not the delivery by the grantor to the stranger.
    Appeal from Berrien; Coolidge, J.
    Submitted January 29,1902.
    (Docket No. 94.)
    Decided March 18, 1902.
    Bill by Mary Meech and others against George Wilder, Jr., and others, to set aside a deed. From a decree dis- * missing the bill, complainants appeal.
    Affirmed.
    The complainants and defendants are the heirs of George and Olive Wilder, deceased. The bill is filed to set aside a deed made by George and his wife to the defendant George Wilder, Jr., his son, who lived with his ‘ parents until they died. The learned circuit judge who heard the case made a clear and succinct statement of facts, which we adopt. It is as follows:
    “George Wilder and his wife, Olive, in November, 1890, were living on a farm of 104 acres situated in Bainbridge township, in Berrien county. The title to part of the land was in the husband, and part was in the wife. Mr. Wilder also owned another tract of land, consisting of 57-J- acres. On November 19,1890, for the purpose of creating a joint tenancy in entirety, Mr. Wilder and wife conveyed the said tract of 104 acres to W. L. George, and on the same day Mr. George reconveyed the land to Mr. Wilder and his wife. On the same day, also, Wildér and his wife conveyed by warranty deed, made in usual form, said 104 acres to their son George Wilder, Jr., with a clause, however, inserted, reading as follows: ‘ This deed is to be delivered and recorded to the grantee on the death of both of the grantors.’ The consideration expressed is one dollar. The deed was duly executed and acknowledged. No evidence is presented showing mental incompetency on the part of the grantors, or that any undue influence was exerted over them. No claim of this kind was made on the argument. Mr. Plummer directed Mr. Wilder, after the deed had been acknowledged, to deliver it to a third person-, and instruct such person to keep it till the death of both grantors, and thereafter to deliver it to the grantee. The deed remained in the custody of Mr. Wilder for some time. He then delivered it to his daughter-in-law, the wife of defendant George, to be delivered by her on the death of Mr. Wilder, Sr., to her husband. She kept it till he died, and then delivered it to her husband. He died October 19, 1898. His wife died in 1894. On October 20, 1898, the deed was recorded in the office of the register of deeds of Berrien county.
    “At the time of the conveyance to George, Mr. Wilder and wife had three children living, viz., Mrs. Cora Gilbert, Mary Meech, and George, and four grandchildren, the children of two sons. The heirs were all of age at the time of the commencement of this suit. On March 24, 1898, George Wilder conveyed to his daughter Cora Gilbert the 57-acre tract referred to. On the same day he also made his last will and testament, which has been duly probated. In the will no mention was made of real estate. The personal property was devised among the various children and grandchildren, and subsequently distributed according to the provisions of the will. It appears from the evidence that George Wilder, Sr., had been kind to his children and grandchildren, and had during his lifetime made considerable provision for their support, excepting, perhaps, Mrs. Meech. It appears, however, that Mrs. Meech was married 29 years ago; that, upon her marriage, she moved to a place about six miles from her father’s residence ; that thereafter she moved to Dowagiac; that, for the seven years before her father’s death, she had been living in West Pullman, Illinois; that from the time she left home she did not visit her father and mother oftener than twice a, year; and that, for the last seven years of her father’s life, she visited him only twice. George always lived at home with his parents.”

      Novak & Novak, for complainants.

      Plummer & Eiford, for defendants.
   Grant, J.

(after stating the.facts). We concur in the conclusion of fact reached by the circuit judge that this deed was delivered by Wilder, Sr., to his daughter-in-law, to be by her delivered to her husband upon the death of his father; that upon delivery to her he parted with'all control over it; and that she promptly delivered it at his death to her husband. The evidence we regard as quite conclusive upon this point. The circuit judge discarded the evidence of the defendant’s wife as to conversations between her and the deceased, as within the prohibition of the statute, and did not consider it in reaching his conclusion. Several witnesses testified to statements made by Mr. Wilder, Sr., which can lead to no other conclusion. The judge, in his opinion, said that these witnesses were careful and truthful in their testimony..

The important question of law relates to the construction to be given to the following words: “This deed is to be delivered and recorded to the grantee on the death of both of the grantors.” It is the well-established rule in this State that the delivery of a deed by a grantor to a third party, to be by him delivered to the grantee after the grantor’s death, is valid. It conveys. the fee, and operates as a conveyance in prcesenti, though the enjoyment is postponed until the grantor’s death. Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201). The question of the conveyance of an estate of freehold to commence in futuro is fully and ably discussed, and authorities cited, in Wyman v. Brown, 50 Me. 139, and Wilson v. Carrico, 140 Ind. 533 (40 N. E. 50, 49 Am. St. Rep. 213). Under the above authorities, if no such language had been used in the deed, and it had been delivered by the grantor to Mrs. Wilder with instruction to deliver it at his death to his son, the deed would be valid. Is it any less valid because of the language in the deed ? The delivery spoken of in the deed means evidently the actual delivery to the grantee therein named for recording. It does not refer to a delivery by the grantor to a third party to see that this provision of the grantor is carried out. The delivery to the third person as trustee or holder is entirely consistent with the language of the deed. When, therefore, the grantor deposited the deed with a third person, and placed it beyond his control or recall, the deed was delivered, under the numerous decisions of this court.

The authorities cited in behalf of the complainants are not in conflict with the rule as above stated. In Cook v. Brown, 34 N. H. 476, the deed was placed in the hands of a depositary, to be delivered to the grantee upon the death of the grantor, “provided it is not previously recalled, and the grantor reserves the right and power to recall at any time.” In Huey v. Huey, 65 Mo. 689, a father signed and acknowledged a deed to his son, intending it as a gift, and deposited it with his own papers in a chest, to which, however, the son, who lived with him, had access. It was held no delivery, because his father had not parted with his control over the deed. In Jackson v. Leek, 12 Wend. 107, a deed was signed and acknowledged, but not delivered until eight or nine years after the decease of the grantor. It was shown that the grantor said that he had made out a deed, but had told the grantee that it had better not be delivered, as there was a dispute about the land. In Stilwell v. Hubbard, 20 Wend. 44, the grantor retained possession of the deed until his death. The court said:

“ There were no formal words of delivery, and nothing was said at the time the deed was executed from which it can be inferred that Hubbard intended it should be a present, operative conveyance.”

In Wellborn v. Weaver, 17 Ga. 267 (63 Am. Dec. 235), the deed, which was one of gift, was given to one of the subscribing witnesses to hold as agent of the grantor until his death. It was held that the deed did not pass beyond his control during his lifetime.

The decree is affirmed, with costs.

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


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    BUTTERS SALT & LUMBER CO. v. VOGEL.
    1. Statute oe Frauds — Goods Sold — Credit.
    Charging goods to the person receiving them is not conclusive that they were sold upon his credit. Larson v. Jensen, 53 Mich. 427.
    2. Same — Verbal Guaranty.
    A verbal promise to a merchant to pay or guarantee the account of a third person, who is wqrking for the promisor, is within the statute of frauds. Studley v. Barth, 54 Mich. 6.
    Error to Mason; Beardsley, J.
    Submitted January 29, 1902.
    (Docket No. 88.)
    Decided March 18, 1902.

      Assumpsit by the Butters Salt & Lumber Company against Albert Vogel for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Fitch & Beek, for appellant.

      Henry C. Hutton, for appellee.
   Montgomery, J.

The plaintiff, in 1898 and 1899, was conducting a store at Walkerville, Mich. William Weicksall was a contractor, under contract to cut, haul, and deliver certain logs to defendant. Soon after commencing operations, in September, 1898, Weicksall began to trade at plaintiff’s store at Walberville. From the 23d of November until the close of operations in the spring, the plaintiff furnished merchandise to Weicksall, which was not paid for, amounting to $138.64. This action is brought upon the theory that the credit for these goods was extended solely to the defendant, and upon that theory the plaintiff prevailed below, upon a special finding of facts and law, and the case is brought here for review; the chief contention being that the evidence did not support the finding of facts.

The question is whether the testimony shows that the promise made by defendant was an original promise or a collateral one. Mr. Smith, who was a clerk in the employ of plaintiff, testified as follows as to the original agreement :

“Mr. Weicksall was an entire stranger to me, and he came there and ordered goods, and I told him I could not do it, and he said he was logging for Vogel; and then Mr. Vogel came up, and I asked him about this man (Weicksall), and he said Weicksall was working for him, and he should have to have goods, of course, to carry on his camp, and he would just as soon that he would get them of us as anybody else, and he would see that the account was paid; and every time Mr. Vogel came to Walkerville I would ask him about the account, and he said that the account was all right, and he would pay it, every time I would see him; and I think I can prove that I did say that. I think that was about all the conversation there was.
Q. You did, then, let Mr. Weicksall have goods after that?
“A. Yes, sir.
Q- You did let Mr. Weicksall have goods out of your store ?
“A. Yes, sir.
“ Q. To whom did you sell the goods, Mr. Smith ?
“A. I should not have sold them to Weicksall without the guaranty.
Q- To whom did you sell these goods, — to Mr. Weicksall or to Mr. Vogel ?
“A. Mr. Weicksall got the goods on his (Vogel’s) order.”

On cross-examination witness testified:

“Q. You stated, Mr. Smith, that you would not have sold these goods to Mr. Weicksall without the guaranty of Mr. Vogel?
“A. I did.
“Q. You did sell them to Mr. Weicksall upon that guaranty ?
“A. Yes, sir.
“Q. To whom was the charge made, if any, on the books ?
“A. It was in Mr. Weicksall’s name.”

Redirect examination:

“Q. Why did you make the charge on the books to Mr. Weicksall?
“A. Because it was Weicksall who got the goods under Vogel’s order.
“Q. Was it done for convenience, in any way?
“A. Yes; it was. Weicksall’s men did all the trading. Vogel never came and bought goods for this man, — Vogel himself.
“Q. That is, he never came and got the goods ?
“A. No, sir.
“Q. Mr. Weicksall’s men were the ones who came and got the goods from the store ?
“A. Yes, sir.
“Q. And it was for that reason that you kept the account in Weicksall’s name ?
“A. It was.”

A. E. Felter, a witness also called for the plaintiff, testified that he was in the employ of the plaintiff, and further as follows:

“I was called back to the desk by Mr. Smith to listen to the conversation between him and Mr. Vogel. He asked Mr. Vogel if he would guarantee the account, and if it would be all right to let Weicksall have goods on his account, and Mr. Vogel said it was.
Q. Did Mr. Vogel give any reason in your hearing why it was all right to let him have the goods ? .
“A. Mr. Vogel said at that time Mr. Weicksall was getting along very nicely in his lumbering job, and he would get out all right and make some money out of it, and the account was all right, and let him have all the goods he needed.
Q. What did he say about paying?
“A. He said that he would guarantee the account.
The Court: He said that he would guarantee it ?
“A. Yes, sir.
“The Court: Are you sure that expression was used?
‘A. He would guarantee the account. ”

This is all the direct testimony bearing upon the question of the contract that was made by defendant upon which the goods were delivered to Weicksall. It appears that the goods were charged upon the books of the company to Weicksall, but the court correctly held that this is not conclusive that credit was given to Weicksall, on the authority of Larson v. Jensen, 53 Mich. 427 (19 N. W. 130).

But a more serious difficulty confronts the plaintiff in-this case. No reasonable construction can be put upon the. language employed by the parties which leads to any other conclusion than that this engagement of defendant was an agreement to answer for the debt of a third person, and to become a guarantor of the payment of his obligations, rather than an original promisor. The case, in its facts, is very similar to Studley v. Barth, 54 Mich. 6 (19 N. W. 568), and, we think, is ruled by that case.

The judgment must be reversed, and a new trial ordered.

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


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    SALLIOTTE v. WILLIAMS.
    1. Equity Practice — Exclusion of Testimony — Prejudice.
    Where the circuit judge in a chancery case excludes the testimony offered by defendants, an actual prejudice need not be shown, but it should appear affirmatively that no injury could result to them through this unusual course.

      3. Collateral Attack — Bill of Beview — Cross-Bill.
    A decree by a court having jurisdiction cannot be impeached collaterally by an answer in the nature of a cross-bill, special leave of the court to file a bill of review not having been first obtained. Chancery Buie No. 27.
    Appeal from Wayne; Donovan, J.
    Submitted January 29, 1902.
    (Docket No. 14.)
    Decided March 18, 1902.
    Bill by Catherine Campau Salliotte against Julia Campau Williams and others for the construction of a will. From a decree for complainant, defendants appeal.
    Affirmed.

      Thomas A. E. WeadocJc, for complainant.

      Beath & Beath and Edwin Henderson, for defendants.
   Montgomery, J.

The original bill in this case was filed by complainant as executrix and sole devisee of Archibald Campau, deceased, to obtain a construction of the will of Archibald Campau; the complainant’s claim being that, by the terms of the will, she was given an absolute and indefeasible estate in all of testator’s property. The bill set out, among other things, that certain of the defendants had denied this claim of the complainant, and had “harassed and annoyed your oratrix in various ways in regard to said property, and compelled her to file a bill in chancery, which resulted in a decree in her favor, after she had paid them a large sum of money;” and that they thereupon quitclaimed to complainant the premises in question in that suit.

The answer sets up that, before the will was admitted to probate, a contest was filed by certain of the defendants, which was withdrawn on complainant’s agreeing to deed to contestants certain of the real estate belonging to the estate of Archibald Campau, which agreement is averred to have been put in writing and signed by the parties. It is further averred that complainant then refused to make said deeds, and brought a suit in chancery to have said agreement set aside; that, before the chancery suit was brought on for trial, complainant agreed with defendants that, if the defendants would give her a life lease of the property there in cofitroversy, she would pay the defendants the sum of $1,000 each, and execute good and sufficient deeds of the property to the defendants, and#vould dismiss the suit in chancery ; that the moneys were paid to the defendants, and the defendants stood ready to, and did, sign a paper which they were informed was a life lease of the property to the complainant and an agreement on her part that they were the owners of the land subject to her life estate; but that said complainant did-not dismiss said suit in chancery, but fraudulently and wrongfully took a decree in said suit. The answer denies that defendants ever knowingly made and signed a quitclaim deed of the property to complainant, and avers that, if there be such a paper writing bearing their signatures, it is not their deed, and is a fraud upon their rights, and was obtained by fraud, false representations, and misstatements of facts.

A demurrer to this cross-bill was overruled. A replication was thereupon filed, and the case came on for hearing upon testimony to be taken in open court. Upon this hearing the probate proceedings were introduced, and the chancery decree in the former case, which, in terms, declared the contract set up in the answer in this case null and void, and that it entitled the defendants to no right, title, or interest in the premises described. It further declared the title to the property there in controversy to be in Catherine Campau, as against said defendants, and each of them, and, specifically, that neither of said defendants, under said contracts or agreements, had any right, title, or interest, either jointly or severally, in the same. The defendants offered testimony to support the averments of their cross-bill, and the court excluded it. The case is brought here for review.

The question to be determined is whether the refusal to receive the testimony offered by the defendants prejudiced their rights in any way, or, more properly, whether it could have worked a prejudice to their rights, as, in such case, an actual prejudice need not be affirmatively shown, but it should appear affirmatively that no injury could result to defendants through this unusual course having been adopted.

The theory of the answer in the nature of a cross-bill apparently is that this controversy over the construction of the will was compromised by the parties, and that the complainant has refused to carry out the terms of the compromise. If there had been no previous adjudication of this question, these two propositions, if established by evidence, might constitute a defense. But, unfortunately for defendants, the answer goes further than this, and sets up that the question of this contract and the rights under it were settled by a decree; and the decree introduced at the hearing so shows. It would appear, then, that, whatever the testimony offered might be, the defendants could not avail themselves of it while the decree Stands. The circuit judge was of the opinion that the decree could not be impeached collaterally, nor'attacked by an answer in the nature of a cross-bill. In this view we concur. Chancery Buie No. 27 is explicit on this point. It provides that no bill of review, or other hill in the nature of a hill of review, shall be filed without special leave of the court first obtained. This practice was not followed in this case, and the proposed defense is no more than an attempt to impeach the first decree in a collateral proceeding. No prejudice could result to the defendants from excluding the testimony offered.

No other point is discussed in appellants’ brief, from which we assume that the construction given by the learned circuit judge to the will in question is not assailed.

The decree will be affirmed, with costs.

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


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    FARR v. LACHMAN.
    1. Foreclosure — Assignment op Decree — Sale—Waiver.
    A defendant who, in a petition to the court to set aside a commissioner’s sale in foreclosure proceedings, “waived all claim of relief ” except that the sale should have been subject to six months’ redemption, which relief was denied, cannot afterwards oppose a writ of assistance on the ground that the decree had been assigned, and the assignee neglected to obtain authority from the court to proceed to a sale.
    2. Chancery Sale — Irregularity—Estoppel.
    An assignee of a foreclosure decree, who, without calling the attention of the court to the assignment, causes the land to be sold, bids at the sale, and receives and retains the proceeds thereof, is estopped from questioning the regularity of the sale.
    3. Writ op Assistance — Dependant Without Interest.
    A defendant in a foreclosure suit, whose interest has been cut off by a sheriff’s deed, cannot question the validity of a commissioner’s sale on an application for a writ of assistance.
    Appeal from Ottawa; Padgham, J.
    Submitted January 29, 1902.
    (Docket No. 12.)
    Decided March 18, 1902.
    Bill by George A. Farr against Henry Lachman, Adam Lachman, and others to foreclose a mortgage. A decree of foreclosure was rendered, the property sold, and the sale confirmed. From, an order granting a writ of assistance on the application of John H. Tatem, defendants Lachman appeal.
    Affirmed.

      John H. Tatem (Myron H. Walker, of counsel), in pro. per.

      Turner & Turner, for appellants.
   Moore, J.

The record bears out the following statement of facts, taken from the brief of the petitioner for writ of assistance:

On the 19th of August, A. D. 1899, a decree of foreclosure and sale was rendered by the circuit court for the county of Ottawa, in chancery, in the above-entitled cause. In pursuance thereof, said foreclosure sale was advertised by the commissioner in a notice signed by said commissioner, and countersigned by “Turner & ■ Turner, Solicitors,” and a sale of said premises was made by said commissioner on the 24th of July, 1900, to Gerald' Fitzgerald, for the sum of $1,500, as the highest bidder, and a commissioner’s deed given in pursuance thereof; and on July 24, 1900, said commissioner paid to Turner & Turner, solicitors for Adam Lachman and Henry Lachman, and who assumed to act as “complainant’s solicitors,” the sum of $52.34, taxed costs of suit, and $1,353.26, amount to be due, and took their receipts therefor, and filed his report of such sale with the register of the court. On the 25th day of July, 1900, the usual order of confirmation of said report and sale was entered by the register of said court, he being authorized so to do by George A. Farr, Esq., the complainant and solicitor of record therein. Notice of the entry of said order was served July 28, 1900, among others, upon said Turner & Turner, solicitors for Adam Lachman and Henry Lachman, two of the defendants in said suit, and the only appellants herein, and the same was received by said Turner & Turner on the 28th day of July, 1900; and no order of substitution of said Turner & Turner as solicitors for complainant in the place of said George A. Farr had then or has ever been entered herein.

That upon receipt of the same, and on July 31, 1900, said defendant and appellant Adam Lachman, by his solicitors, Turner & Turner, filed in said circuit court a petition setting up the rendition of said decree; the assignment of the same by said complainant, Farr, to said defendant Adam Lachman; the advertisement and sale of said premises by the commissioner “at the instigation of said Adam Lachman,” and the bidding off of the same to said Fitzgerald; the execution of said deed, and the filing of the commissioner’s report of said sale; the notice of entry of order of confirmation, and the receipt of notice thereof; and praying, among other things, to set aside said sale, and that the same be not confirmed, or for the amendment of said decree nunc pro tunc to provide for an indorsement upon said commissioner’s deed for six months’ redemption from said sale; praying also to have said petition “stand as exceptions to the confirmation of said sale aforesaid; that the order sought to be entered confirming said sale was not authorized by the real complainant in this cause, the said Adam Lachman, or his solicitors;” and that said Turner & Turner ‘ ‘ be substituted as solicitors of record for the complainant in said cause and further praying “that a decree be entered providing for redemption according to the terms of Act No. 200, Pub. Acts 1899.”

Said petition was heard before the judge of said court, and Jerome Turner, Esq., one of the solicitors of said Adam and Henry Lachman, appellants, appeared, and “ in open court waived all objections to said sale and the prayer of said petition, except the prayer asking that said deed might be made and stand subject to six months’ redemption.” The prayer of said petition was denied. Afterwards an order to show cause why said petition should not be granted, and the order denying same be set aside, was issued by this court upon petition of said Adam Lachman, and answer was made thereto by said circuit judge, and the writ of mandamus prayed for was denied by this court, and said sale held to be absolute and without redemption. See Lachman v. Ottawa Circuit Judge, 125 Mich. 27 (83 N. W. 1025). It appeared before the circuit court upon the hearing of the said petition, and also in this court in said mandamus proceeding upon the face of said petition, that the foreclosure decree was assigned by George A. Earr on the 30th of August, 1899, to Adam Lachman, and that the sale had been made “at the instigation of said Adam Lachman” and his solicitors. This was the first time that the assignment of the decree had been brought to the notice of the court.

On March 27, 1901, Gerald Fitzgerald, purchaser at said foreclosure sale, and his wife, conveyed the premises to the appellee, John H. Tatem. It appears, further, that September 17, 1900, a sheriff’s deed of the title of Henry Lachman was made to Grant E. Miller, which deed was based on a judgment in favor of Miller and against Lachman, rendered by the circuit court in said county of Ottawa. Miller deeded to the appellee-, J. H. Tatem. Due service of a certified copy of the order confirming said sale, and also of the circuit court commissioner’s deed to said Fitzgerald made upon said sale, was had upon said defendant Henry Lachman and one Andrew Lester, who were or claimed to be in possession of the premises, and personal demand for possession thereof made upon each of them, and each of them refused to comply therewith.

Upon the filing of applicant’s petition for a writ of assistance in the circuit court, and service of order to show cause issued thereon, the defendants and appellants, Henry Lachman and Adam Lachman, filed an answer and cross-petition thereto by Turner & Turner, their solicitors. In effect, said answer admitted all of the allegations of said petition, and the foregoing facts, except that it is therein claimed that the foreclosure sale of said premises made by said commissioner “was a mere sham, was not regular', and was void,” and that the order entered confirming the report and sale of said commissioner “was merely a sham, and not of any binding force whatever, and was entered without the authority of Adam Lachman or his solicitors,” and it “denies that said sale now stands in all respects confirmed and absolute for the reasons hereinafter set- forth. ” Said Henry Lachman further denied that his right, title, and interest to said premises, and his right of possession, were extinguished by said foreclosure sale and deed. The defendants joined to said answer a cross-petition setting up, in substance, that on April 29, 1897, said defendant Henry Lachman was the owner in fee of the said premises, and then executed a mortgage to said Farr thereon, to foreclose which said Farr filed a bill in said court on May 24, 1899, and on August 19, 1899, a decree of foreclosure was rendered thereon, and that on the 30th of August, 1899, said decree was duly assigned in writing, for a valuable consideration, by said Farr to said Adam Lachman, “who was a nominal defendant in said cause by reason of other mortgages that he held upon the same land and property;” “that by reason of said assignment, under and by virtue of Rule 34 of the Chancery Rules of this court, said petitioner Adam Lachman became transferee or assignee of said foreclosure decree, and could not proceed to a sale of the mortgaged premises without presenting a petition to the court setting forth the assignment, and asking for a sale under the decree as transferee or assignee, for, under the rules of the court and the" decisions in this State, a sale made without such a petition would be absolutely void.” It further avers that some time in the month of June, 1900, the said petitioner Adam Lachman, by his solicitors, Turner & Turner, directed the circuit court commissioner “to publish, advertise, and sell this said land by virtue of the terms of said decree,” and sets forth that said sale was made to said Fitzgerald and commissioner’s deed executed as aforesaid. Said Henry Lachman alleges that said sale and deed were void for the reasons aforesaid. Said cross-petition further recites the entry of said order of confirmation by consent of said Farr, but “without the order or consent” of the solicitors of said Adam Lachman, “the real complainant,” and that said order was not legal, and that afterwards said Adam Lachman petitioned said court for the setting aside of said sale. It avers that said Adam Lachman is ready and willing to pay said Fitzgerald the money received upon said sale, and prays that “ said order confirming said sale be set aside,” and that said Adam Lachman be substituted “as transferee and complainant in said cause,” and for general relief. No actual payment or tender of money received for the said foreclosure sale has ever been made into court or otherwise.

The applicant objected to the entertainment of said cross-petition, and moved to dismiss the same. A hearing was had upon said ¿notion, and some proofs taken thereon. Thereupon the court dismissed the ci’oss-petition, and, after a full hearing upon the petition of said applicant, the court ordered said writ of assistance to be issued by the clerk of said court in behalf of said applicant, John H. Tatem. Said writ was issued accordingly.

Counsel for appellants make two claims:

“1. That the order entered in this cause confirming the sale made was void, for the reason that it was entered without any authority from the real complainant or assignee or his solicitors.
“2. That the circuit judge erred in not allowing us to introduce proof under our cross-petition, filed at the time this petition was heard, and in not setting aside said sale for the reasons therein given.” ’

There are several reasons why the action of the circuit judge should be sustained:

First. Because after Mr. Fitzgerald purchased the land, upon a hearing in which Mr. Lachman asked to have the sale set aside, the solicitor for Mr. Lachman, with full knowledge of how the sale had been made, in open court—

“Waived all claim of relief except that prayed for as follows: ‘ That a decree be entered providing for redemption according to the terms of Act No. 200, Pub. Acts 1899, and for any further or different relief in the premises that shall be according to equity and good conscience;’ and the specific relief asked for was an order of court providing for six months’ redemption under said sale, and that the indorsement of the circuit court commissioner upon the deed be allowed to stand.”

This court held the claim could not be sustained. Lachman v. Ottawa Circuit Judge, 125 Mich. 27 (83 N. W. 1025). Mr. Tatem is the grantee of Mr. Fitzgerald, and the case is res adjudicata.

Second. After a decree was obtained by Mr. Farr, it was assigned by him to Mr. Lachman, and, without calling the attention of the court to this assignment, Mr. Lachman caused the land to be sold under the decree, the same as though no assignment had been made. No notice was given to the bidders at the sale of any irregularity, and Mr. Lachman was himself a bidder. In Bigelow v. Booth, 39 Mich. 622, it is said:

“Whatever the effect of the assignment of the note and mortgage by the mortgagee and complainant, after he had commenced proceedings for the foreclosure of his mortgage, might have been if brought to the attention of the court, it is sufficient to say that until known they could have no effect whatever. Although known to the parties, yet the assignment did not appear of record, and was not brought to the knowledge of the court. The case proceeded regularly to a decree, sale, and confirmation of the same, and the effect of such, assignment is sought to be used in this case for .the first time. It cannot be so used. The decree made and sale thereunder were valid, and cannot thus collaterally be attacked. Were it otherwise, rights acquired by parties under judicial sales could never be safe from attack.”

Mr. Adam Lachman not only allowed the sale to proceed, but he received and retained the proceeds of the sale, and still has them. For these reasons he is estopped from questioning the regularity of the sale. Wilber v. Goodrich, 34 Mich. 84, and the many cases cited in the note; 2 Herm. Estop. §§ 1059-1069, 1189-1191, 1194, 1199.

Mr. Henry Lachman’s interest in the property was cut off by the sheriff’s deed.

The case is affirmed.

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


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    FOWLES v. HAYDEN.
    1. Trespass to Land — Pleading—Variance.
    Where the declaration in an action for trespass to land avers ownership and possession by plaintiff, evidence showing title in plaintiff and her husband, as tenants by entireties, is irrelevant.
    2. Same — Tenants by Entireties.
    A wife cannot recover for a trespass to land owned and occupied by herself and husband as tenants by entireties, as it affects the entire estate.
    Error to Benzie; Chittenden, J.
    Submitted January 30, 1902.
    (Docket No. 115.)
    Decided March 18, 1902.
    Trespass quare clausum fregit by Mary Fowles against John S. Hayden. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John W. Wilson and Nevius & Louiselle, for appellant.

      D. G. F. Warner, for appellee.
   Moore, J.

This is an action of trespass, the plaintiff declaring against the defendant, “for that the said defendant, on, to wit, the 24=th day of February, A. D. 1900, with force and arms, willfully, maliciously, and unlawfully entered upon the land owned by said plaintiff, * * * said plaintiff then and there being in the lawful possession of said premises, and other injuries then and there did to said plaintiff.” The defendant pleaded the general issue, and gave notice thereunder that where the said injuries are supposed to have been committed was a public highway at the time the said injuries are alleged to have been committed, and that, if acts were done by said defendant as alleged by said plaintiff, they were done by defendant as highway commissioner, in the legal discharge of his said duties in clearing said highway of obstruction. The case was tried by the court without a jury. No request for findings of fact or law was made, and none were made. The court rendered judgment in favor of defendant. The case is brought here by writ of error.

Upon the trial it was stipulated that at one time Benzonia College was the owner of the land where the alleged trespass was committed; that, if plaintiff is entitled to anything, she is entitled to $5 and costs; that the alleged trespass was the cutting of a fence for the purpose of the highway claimed to have been laid out along the side of plaintiff’s land, and that all the cutting was done inside the bounds of what is claimed by defendant to be the highway ; and that the said claimed highway is the same highway over which litigation was had wherein Pauline Bird-sell was complainant and John S. Hayden was defendant in one cause, and Mary Fowles was complainant and John S. Hayden was defendant in another cause. The plaintiff, by this stipulation, did not admit there was any highway there, either by user or by having been laid out.

For the purpose of showing title in plaintiff, a deed was offered in evidence, made by Benzonia College February 10, 1900, to John Fowles and Mary Fowles, his wife, grantees. Mr. Fowles testified the land was bought with money belonging to himself and wife, and that they were in possession at the time of the alleged trespass. At this stage of the case the defendant objected to the reception of any further evidence, and moved to dismiss the case, for the reason that, if any trespass had been committed, it was one against Mary Fowles and John Fowles, for which the wife alone cannot maintain an action; to which the counsel for plaintiff replied:

“We will say that the plaintiff was in possession of the land. The title is in her as much as it is in her husband, and in her husband as much as it is in her. There is no question about that. She was in possession of the premises at that time jointly with her husband. But, where only one of them brings an action of trespass, that one is entitled to only half of the damages. The evidence will disclose that Mr. Fowles himself, perhaps, has no action of damages there; that there was some sort of a proceeding to lay out a road, — a highway, — and that Mr. Fowles, in his own behalf, took an appeal from the action of the commissioner, for himself and himself alone; and that we concede that his rights there were adjudicated. Mr. Fowles himself, in my opinion, is barred from an action against any one trying to open a highway there, — that is, the path-master or such officer, — because he has already tested his right before the authorities in that regard; but ' Mrs. Fowles is entitled to one-half whatever damages was done.
“ The Court: Well, I will allow you to proceed in the meantime.”

Testimony was introduced by the plaintiff showing the cutting of the fence by the defendant. On the part of the defendant it was shown that the question of the legality of the same highway in controversy here was involved in a case before the same judge in the same court where Pauline Birdsell was complainant and John S. Hayden was defendant; that a hearing was had thereon upon pleadings and proofs taken in open court, in which the court decreed the highway was regularly and legally established. Objection was made to the admission of the decree in evidence because not properly pleaded, and also because this plaintiff is not bound by the decree. The decree was received in evidence. The plaintiff then sought to show in rebuttal the proceedings of the commissioner of highways, filed with the township clerk, claiming they would show the highway was not legally established. In reply to an inquiry by the court, it was stated the alleged trespass occurred after the decree in the Birdsell case. The court then excluded the records from the office of the town clerk, and rendered a judgment in favor of defendant.

The first question which calls for consideration is, Can plaintiff maintain this action of trespass, when she and her husband are in possession of the land under a deed running to both of them ? It will be observed, the declaration alleges the title and the possession of the land were both in her. The proofs show they were in her and her husband, who held the land by the entirety. In Speier v. Opfer, 73 Mich. 35 (40 N. W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556), it is said-:

“ In this case the property to be improved and benefited was held by husband and wife jointly, and not as the separate property of the wife. Only at the death of the husband could the wife claim it as her separate property. During the lives of both, neither has an absolute’inheritáble interest] neither can be said to hold an undivided half. They take by entireties, and at the death of the wife the whole passes at once to the husband. Manwaring v. Powell, 40 Mich. 371; Allen v. Allen, 47 Mich. 74 (10 N. W. 113); AEtna Ins. Co. v. Resh, 40 Mich. 241. Neither has such a separate interest that he or she could sell, incumber, or devise, or which his or her heir could inherit. Vinton v. Beamer, 55 Mich. 559 (22 N. W. 40); Fisher v. Provin, 25 Mich. 347. It is 'an entirety, in which both take the same and inseparable interest. Neither can affect the other’s rights by a separate transfer, and whatever will defeat the interest of one will defeat the other’s. Vinton v. Beamer, supra.”

In Dickey v. Converse, 117 Mich. 449 (76 N. W. 80, 72 Am. St. Rep. 568), there is a citation and review of the many authorities, making it unnecessary to call attention to them here; In that case it is said:

“ This species of tenancy grows out of the unity of husband and wife, and is unlike that of joint tenants, who are each seised of an undivided moiety. The husband and wife are each seised of the whole, and not of undivided moieties. Hardenbergh v. Hardenbergh, 18 Am. Dec. 378 (10 N. J. Law, 42), note.”

It was held this rule applied to the crops growing upon the land, as well as the land itself.

Applying these principles of law to this case, it is clear that, if a trespass was committed, it was not committed upon the property ’and possession of the wife, so that she could recover, as counsel urge, one-half the damages, and for which she might give a release, but it was committed against the entire estate; and, to recover for such a trespass, the husband and wife must join. See, also, 21 Enc. PI. & Prac. 805, and cases cited. The case made by the plaintiff is not the case stated in the declaration. This makes it unnecessary to pass upon the other assignments of error.

The judgment is affirmed.

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