text:
    ATTORNEY GENERAL v. COMMISSIONER OF RAILROADS.
    1. Statutes — Implied Repeal.
    A statute revising the whole subject-matter of an earlier statute, and plainly intended as a substitute therefor, though not in terms repugnant thereto, operates as a repeal of the same.
    2. Same — Railroad Crossings — Separation op Grades.
    Act No. 92, Pub. Acts 1893, creating a crossing board, to determine, upon application, the necessity for a separation of grades at railroad crossings, repeals Act No. 79, Laws 1873, in so far as it conferred like powers upon the commissioner of railroads.

      Mandamus by Fred A. Maynard, Attorney General, to compel Sybrant Wesselius, Commissioner of Railroads, to make an order for a separation of grades at the intersections of certain railways with certain streets in the city of Detroit.
    Submitted April 25, 1898.
    Writ denied July 12, 1898.

      C. D. Joslyn, for relator.

      Henry Russel (Ashley Pond, of counsel), for respondent.
   Long, J.

The petition shows that in January, 1898, the attention of respondent was called by petition by the city of Detroit to the dangerous character of the crossings at the intersections of the tracks of the Lake Shore & Michigan Southern Railway Company, the Grand Trunk Railway Company, and the Michigan Central Railroad Company, with Michigan, Woodward, Gratiot, and Grand River avenues in the city of Detroit. In February following, the respondent made an investigation, and determined that there was a necessity for a separation of grades at the intersection of the streets and railroads mentioned, and that steps should at once be taken by the proper authorities to separate the grades at such points for the safety and convenience of the public, and for the better and more expeditious operation of the railroads crossing over them. The respondent determined that he had no power or authority to direct such separation of grades, or to compel bridges to be constructed at the points mentioned, because Act No. 92, Pub. Acts 1893, had taken away the power given him by Act No. 79, Laws 1873, by which later act the powers conferred on the commissioner of railroads by the earlier act are now conferred upon the grade-crossing board. The respondent having refused to act in the premises, the attorney general files this petition to compel him, as such commissioner of railroads, to act in the premises; the attorney general claiming that such power is still vested in the respondent. The respondent has made his return to an order to show cause, in which he denies that any such power rests in him under the act of 1893.

In 1873 the legislature passed an act entitled—

“An act to provide for the appointment of a commissioner of railroads, and to define his powers, duties, and fix his compensation.” Act No. 79, Laws 1873.

Section 17 of that act, so far as it is material to the question involved, provides:

“Whenever, in the opinion of the commissioner of railroads, the safety of the public would be more efficiently secured by stationing a flagman to signal trains where a highway or street-is crossed by any railroad, or where one railroad crosses or intersects another railroad, or by the building of a gate or bridge at such highway,- street, or railroad crossing or intersection, he shall direct the corporation or corporations owning or operating any such railroad or railroads to station a flagman or to erect and maintain a bridge or gate at such crossing, as the public safety may demand. * * * Any corporation or corporations neglecting or refusing to construct such gate or bridge, or to maintain such flagman, so directed as aforesaid, shall each forfeit for every such neglect or refusal the sum of one hundred dollars, and the further sum of ten dollars for every day which such neglect or refusal shall continue. * * * ”

Act No. 92, Pub. Acts 1893, is entitled:

“An act to provide separate grades for railroads and public highways and streets where railroads intersect such highways and streets.”

(1) That act provides for a standing board or commission, consisting of the commissioner of railroads and two other persons, to be appointed by the governor, with the consent of the senate, every two years, charged with the duty. (2) It provides that upon proper application to it in that regard, as provided in said act, said board shall investigate the necessity for the separation of grades at the crossing designated in such application. (3) It provides that, in case said board finds such separation necessary, it shall determine whether the grade of the railroad or of the highway or street shall be raised or lowered, and how much. (4) It provides that the new grade of the' street shall not exceed a maximum of one foot in ten, or of the railroad one foot in one hundred. (5) It provides that such board shall estimate the cost and expense of constructing the work, and the equitable proportion which shall be borne by the railway company and the municipality, respectively. (6) It requires the board to make a report,' setting forth in detail the plan by it adopted, to which report shall be attached, as part thereof, the plan of construction, profile, and map mentioned in said report, and said report shall state the cost and expense of the work to be done or constructed by the municipality. (7) It gives said board authority to employ an engineer to assist it in determining upon and making profiles, plans, estimates, and reports, and such clerical assistance as it may need. (8) It makes provision for the commencement and carrying on the proceedings to separate grades in accordance with the plans provided by said board.

From the view we take of these statutes, we deem it unnecessary to consider the question of the power of the commissioner under the act of 1873, as the act of 1893 covers the whole question of the separation of grades, and all the powers which were given the commissioner under the act of 1873 are now cast upon the grade-crossing board. The act of 1893 provides a full and perfect system upon the subject. By it the powers which, under the former act, are given the commissioner to determine when a separation of grades is necessary, and to order such separation, are conferred upon a board of three persons, of whom the commissioner of railroads is one. It prescribes in detail how and when the power given shall be exercised. It provides for the judicial proceedings necessary to be invoked in order to carry the determination into effect. While repeals by implication are not favored in the law, yet it is a rule of construction followed by this court and other courts that a statute revising the whole subject of a former statute, and intended as a substitute, operates as a repeal of the former law, though it contains no words to that effect. Moore v. Township of Kenockee, 75 Mich. 332 (4 L. R. A. 555). The question of repeal or nonrepeal is one of legislative intention. As was said in Shannon v. People, 5 Mich. 85: “Where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals by implication the former statute, though there be no repugnance.” Mr. Justice Christiancy, in laying down the above doctrine, followed the doctrine of a large number of cases and text-writers cited by him in that opinion. In a well-considered case reported in 40 N. J. Law, 257 (Roche v. Mayor, etc., of Jersey City), the question being whether or not a prior ordinance had been repealed by a subsequent one, the court said:

“The ordinance of 1870 does not expressly repeal the ninth, tenth, and eleventh sections of the ordinance of 1862, and it is a familiar doctrine that repeals by implication are not favored. When there are two laws on the same subject, the rule is to give both effect, if possible. But if the two are repugnant in their provisions, the later, to the extent of the repugnancy, operates as a repeal of the former; and where they are not repugnant in terms, yet if the later act covers the whole subject-matter, and it appears that it was intended as a substitute for the first act, it will operate as a repeal of that act. * * * To have the rescinding effect, it is not necessary that the subsequent act should have every provision of the former one. It is sufficient if it revises the whole subject-matter, and an intention is manifest to make it a substitute for the earlier act. * * * Every statute must be considered according to what appears to have been the intention of the legislature, , and, even though two statutes relating to the same subject be not in terms repugnant or inconsistent, if the later statute is clearly intended to prescribe the only rule which should govern the case provided for, it will be construed as repealing the original act.”

This statement is only the reiteration of the general rule laid down by text-writers and the courts generally. Sedg. Stat. & Const. Law (2d Ed.), 100; Crowell v. Jaqua, 114 Ind. 246; Mersereau v. Mersereau Co., 51 N. J. Eq. 382; Murdock v. City of Memphis, 20 Wall. 617; Bartlet v. King, 12 Mass. 536 (7 Am. Dec. 99); District of Columbia v. Hutton, 143 U. S. 18, and cases cited.

But counsel for relator contends that the case of Ft. Street Union Depot Co. v. State Railroad-Crossing Board, 81 Mich. 248, has a bearing upon the question here. The validity of the act was not raised or questioned in that case, and consequently was not considered or discussed by this court.

The writ of mandamus must be denied.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CRANE LUMBER CO. v. BELLOWS.
    1. Logs and Logging — Liens—Breaking Jam — Constitutional Law.
    3 How. Stat. § 3035, giving to those who float logs in a stream, whether naturally navigable or made so by dams or other artificial means, a lien upon obstructing logs of other owners to the extent of a reasonable compensation for their services in breaking the jam to permit of the passage of their own logs, is not unconstitutional as taking property without due process of law.
    3. Same — Use of Dam — Compensation.
    The proprietor of a dam by means of which logs are floated down a stream in times of shallow water is not entitled to compensation for the use of the dam from an owner whose logs were floated down the stream with his own, by means of the dam, where such owner did not request that his logs be moved, but they were moved to enable the proprietor of the dam to float his own logs.
    Error to Benzie; Aldrich., J.
    Submitted June 7, 1898.
    Decided July 12, 1898.

      Assumpsit by the Crane Lumber Company against Elwin Bellows and Adelbert Bellows, under 3 How. Stat. § 3035, to recover for 'labor in breaking a jam of logs belonging to defendants. From a judgment for plaintiff, defendants bring error.
    Reversed.

      George Whitbeck and Smurthwaite & Fowler, for appellants.

      D. G. F. Warner and Pratt & Davis, for appellee.
   Hooker, J.

The parties to this cause are mill owners,

their respective mills being situate upon Betsey Lake, which is the outlet to Betsey river, and both parties are dependent upon this river as a means of floating logs; There are two dams upon this river, which are used for the storage of water, whereby the stream may be raised, thereby aiding the moving of logs over shallows, or in time of low water. One of these dams, viz., the one located at Crystal Lake, belongs to the plaintiff; the other was leased to one Hart, who assigned his lease to the plaintiff-. In the spring of 1896 both plaintiff and defendants contracted with Hart to run their respective logs down the river. His contract with the plaintiff required him to deliver its logs with rear below “Judson’s bridge,” while those of the defendants were to be delivered “in solid jam from Frankfort up to wherever the jam may extend.” In order to perform his contract with the plaintiff, it became necessary for Hart to bring the whole drive down to Judson’s bridge, which could not be done until, by assorting at the lake, some of the logs were removed to the mills of their respective owners, thereby making room for the jam with rear below Judson’s bridge. By the time this was done, the river was low, and the labor of moving the logs was greater than at other seasons. The defendants were in no hurry for their logs, but, as the logs were intermingled, Hart could not obtain payment from the plaintiff until the rear of the drive was below Judson’s bridge. He therefore employed men, and by the use of the dams brought it down. He then assigned his claim to the plaintiff, who began this action upon the claim, and for compensation for the use of the dams. The circuit judge permitted an amendment of the declaration, which, as originally filed, contained no averment of the assignment, and the plaintiff was allowed to recover under the statute (3 How. Stat. § 2035) for labor in driving the defendants’ logs, and upon the common counts for the use of the dams, and for labor in their management during the time spent in bringing down the rear of the drive. Section 2035, 3 How. Stat., requires those who float logs in navigable streams to avoid obstructing them, and, when they do so through failure to properly drive their logs or break jams, others who find it necessary to put labor upon the obstructing logs are given the right to reasonable compensation.

Counsel raise many questions, and we can refer to the most important only. It is asserted that the law is unconstitutional. Our attention is called to the cases of Kroll v. Nester, 52 Mich. 70, and Shaw v. Bradley, 59 Mich. 209, in support of this contention; but these cases go no further than to hold that the statute then existing had no application to a stream which requires the aid of artificial means in running logs. But the year following the later decision the law was so amended as to include such streams. In the State of Minnesota a similar statute was more liberally construed, and held to permit recovery when flooding by means of dams was resorted to to make the stream navigable for logs, although the act did not in terms include such streams. Merriman v. Bowen, 33 Minn. 455; Beard v. Clarke, 35 Minn. 324.

It is urged that the effect of our statute is to subject the owner of logs who is willing to have them floated at the seasons of natural floods to a more expensive method, at the will of another. The law seems to recognize the advantages of artificial flooding in streams, and there would, perhaps, be as great injustice in permitting the defendants to obstruct the river to the disadvantage of the log owner whose needs require the artificial flooding as to require the former to pay the expense of removing such obstructions. The law does not allow the plaintiff to set his own price on the labor and services rendered in moving the logs of others, but merely permits a recovery of reasonable compensation. If, as contended, the defendants have a legal right to run logs, it does not follow that they have a right to obstruct others unless they shall wait for the season which they may consider the best for the economical moving’ of logs. While we do not mean to be understood that they may be subjected to unnecessary expense by reason of moving at an unsuitable time, we are of the opinion that the legislature may lawfully protect those who wish to avail themselves of artificial flooding to the extent of requiring others to move obstructing logs at all reasonable times, whether the floods are natural or artificial.

Counsel maintain that, but for the large quantity of logs of the plaintiff, the' defendants’ logs could have come down with the drive, and not been left above; and suggest that, had the plaintiff kept back its own logs which came out of Crystal Lake, defendants’ logs would not have required this service, but would have been brought down further by Hart under his contract. We cannot say that the plaintiff had not the right to take its logs from Crystal Lake when it chose, or that it was under obligation to subject itself to loss and disadvantage for the defendants’ benefit. If the defendants’ logs obstructed the stream, and prevented the plaintiff or Hart from getting its logs down, the drive might be brought down at any proper time, by either party, at reasonable and proportionate cost to all having logs in the drive, unless they saw fit to do a proportionate share of the labor. This is substantially the view of the learned circuit judge who tried the cause.

Usually the dams and other facilities for artificial flooding are the property of individuals who control the right to use them, and while, under reasonable limitations, their right and ability to run logs by the aid of these must be recognized, and obstructing proprietors made to pay the reasonable cost of removing their respective obstructions, such persons are not required to contribute.to the erection, maintenance, or operation of such dams and other apparatus intended to create artificial floods, but only to the labor and expense attendant upon the drive made necessary by their obstructions. In this case, if it was reasonably practicable to move the logs in the stream, though only by means of the use of the dams, the plaintiff, or its assignor, Hart, might bring along the whole drive, so far as necessary to the extrication of its own property; but its right to contribution did not include the charge for the use of, or labor at, the dams which it erected and used for its own purposes. The use of the dam is not a public right, but is entirely within the control of the owner. He can use it when he chooses, but he cannot require others to pay for its use, when they do not request it. His right to recover from them is limited to the expense put upon the removal of obstructions. Apparently there was no claim to compensation for the use of the dams under the statute, but the plaintiff was allowed to recover under the common counts, the judge instructing the jury as follows in relation thereto:

“In this case the plaintiff, in its declaration, also makes certain claims besides these upon which it claims a lien upon the logs. It makes certain claims for the use of two dams,- — one dam near the head of this river, and another between this river and Crystal Lake. Now, as to those matters, those are questions which are put in the case here under the common counts in assumpsit which were put in the plaintiff’s declaration. Now, as to those questions, if you believe from the evidence the plaintiff had control and the right to the use of these dams, and used them to its own advantage, and to the advantage of the defendants in the case, you have a right to allow as a part of your verdict in the case in favor of the plaintiff, in case you should find such a one, such an amount as you find from the evidence would reasonably compensate the plaintiff for the use and value of these two dams which it claims to have used for the advantage of the defendants and itself; that is, such an amount as you find the proper share of the defendants would be for the use and value of the dams.”

The undisputed evidence shows that the defendants made no request that their logs should be moved. On the contrary, they protested against it. There was, therefore, no opportunity for the inference of a promise.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    IRON STAR CO. v. WEHSE.
    Taxes — Mistake in Owner’s Name — Validity oe Assessment.
    Under Act No. 206, Pub. Acts 1893, § 99, providing that no tax shall be held invalid on account of the property having been assessed in the name of any person other than the owner, a corporation cannot complain because its property, real and personal, was assessed in a name other than its own, where it appears that it was also known by the name used in the assessment, that it had in a previous year paid taxes so assessed, and that its agent appeared before the board of review to obtain a reduction of the assessment in question, but made no objection to the name.
    Error to Iron; Stone, J.
    Submitted June 7, 1898.
    Decided July 12, 1898.
    Replevin by tbe Iron Star Company against Richard Wehse, treasurer of Crystal Falls township, for property seized for taxes. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    The circuit judge cited the following cases in support of his conclusion that the plaintiff could not complain of the irregularity in the assessment: Hood v. Judkins, 61 Mich. 575; Lumber Co. v. Collins, 66 Mich. 64; Dairy Co. v. McKinlay, 70 Mich. 574; Hill v. Graham, 72 Mich. 659; Lumber Co. v. Dean, 73 Mich. 459; Mogg v. Hall, 83 Mich. 576; Boyce v. Peterson, 84 Mich. 490; Bradley v. Bouchard, 85 Mich. 18; Boyce v. Stevens, 86 Mich. 549; Lumber Co. v. Village of Oscoda, 97 Mich. 221; Fletcher v. Post, 104 Mich. 424; Hinds v. Township of Belvidere, 107 Mich. 664; Curtiss v. Witt, 110 Mich. 131.

      Moore & Moore, for appellant.

      Fred H. Abbott, for appellee.
   Hooker, J.

The finding of the circuit judge shows that the plaintiff was in possession of and operating a mine known as the “Great Western Mine,” and that the defendant seized some of its personal property for nonpayment of taxes upon this mine and personal property used in connection with it. The property taken was replevied, and the plaintiff appeals from an adverse verdict.

The taxes in question appeared upon the roll against the Great Western Iron Company, instead of the Iron Star Company; and the plaintiff’s name did not appear upon the roll. The finding makes it plain that this was a mistake in the listing of the lands, and that the plaintiff was known by both names. The tax upon the real property for the year 1894 was assessed in the same way, and, although contested upon the bearing of the petition of the auditor general upon other grounds, no objection was taken to its assessment to the Great Western Iron Company. The personal tax for that year was paid by the plaintiff. Its agent also appeared before and was heard by the board of review in 1895 upon the assessment for that year, and obtained a reduction of $25,000 in the assessment, but made no objection that assessment was made in the name of the Great Western Iron Company. He testified, however, that the fact was not brought to his attention.

The case is ruled by the authorities cited by the learned circuit judge in his findings of law. See, also, section 99, Act No. 206, Pub. Acts 1893.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    CARPENTER v. SNOW.
    1. Wills — Disinheritance of Children — Intent—Question for Jury.
    Under 3 How. Stat. § 5810, giving to children living at the making of their father’s will, for whom no provision is made therein, the right to share as in case of intestacy if “it shall appear that such omission was not intentional, but was made by mistake or accident.” the question of the testator’s intent in this respect is one of fact, to be submitted to a jury upon all the evidence.
    3. Same — After-Born Children.
    But where no provision is made in a will for after-born children, the intention to disinherit must be gathered from the language of the will itself, the statute (3 How. Stat. § 5809) applicable to such cases providing that such children shall share as in case of intestacy unless it shall be apparent “from the will” that it was the intention of the testator that no provision should be made for them.
    3. Same — Construction.
    A will which contains simply a provision that all of the testator’s property shall go to his wife affords no intrinsic evidence from which an intention to omit provision for after-born children may be inferred.
    Cross-appeals from Wayne; Hosmer, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.
    Bill by William L. Carpenter, executor of the last will and testament of Herbert M. Snow, deceased, against Mary L. Snow, decedent’s wife, and Clara L., Harry A., and Gertrude E. Snow, decedent’s minor children, for a construction of tbe will. From the decree rendered, complainant and the infant defendants appeal.
    Modified

      Whitney G. Beckwith, for complainant.

      Walker & Spalding, for defendant Mary L. Snow.

      Matthew Finn, for infant defendants.
   Moore, J.

This is a proceeding to construe a will made by Herbert M. Snow, who was married in 1883. July 8, 1884, Clara L. Snow was born! The will in question was made April 20, 1888. Harry A. Snow was born May 7, 1889, and Gertrude E. Snow was born April 28, 1892. AH these children were living when the death of Mr. Snow occurred, in October, 1897. Mr. Carpenter was named as executor in the will. Omitting the formal parts of the instrument, it reads as follows:

“ Second. After the payment of my debts and the expenses of administering my estate, I give, devise, and bequeath all my property, real and personal, and all the property of every kind and nature whatsoever of which I may die possessed, to my beloved wife, Mary L. Snow.”

As no provision was made in the will for Clara, who was born before the will was made, or for the two children born afterwards, the bill is filed to determine the respective rights of the widow and children. In the court below a decree was made holding the after-born children took no portion of the estate, and providing:

“This decree is made without prejudice to the rights of the defendant Clara L. Snow to take proceedings at law to determine whether the omission to provide for her in said will was made intentionally, or by mistake or by accident.”

Extraneous testimony was taken, which, if competent, shows that Mr. Snow intended to give all his property to his wife to the exclusion of his children, having confidence in her management of the property, and her sharing it with the children. While this testimony may be'competent to show that the omission to provide for Clara was not unintentional, we do not think it competent to show that the testator did not intend to provide for his unborn children.

The provisions of the statute applying to the facts disclosed by this record are as follows:

2 How. Stat. § 5809, provides:

“When any child shall be born after the making of his father’s will, and no provision shall be made therein for him, such child shall have the same share in the estate of the testator as if he had died intestate, and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.”

Section 5810 provides:

“When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, but was made by mistake or accident, such child, of the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section.”

It will be noticed the language in the two sections with reference to showing the intention of the testator is not at all alike. In the last-named section it is not required that the omission to provide must be shown by the will itself to be intentional. This section has been construed by this court in Re Stebbins’ Estate, 94 Mich. 304 (34 Am. St. Rep. 345), where it is held the question as to whether the omission to provide for a child in the will was intentional or otherwise is a question of fact which may be submitted to a jury. Section 5809 has never been construed by this court. The decisions of other courts cannot be harmonized. The case of Hawhe v. Railroad Co., 165 Ill. 561, is in harmony with the decree made by the trial judge.

The language of the statute would seem to be very plain. At the common law, marriage and the birth of children after the will was made would revoke the will. The legislature evidently had in mind that, if the father failed to make provision in his will for the unborn child, the law should make provision for it, unless the parent made it clear in the will itself that the omission to provide was intentional. How can it be said from the language used in this will that the father intended to cut off from inheriting his property two children who afterwards came to him, when no reference is made to them in the will, and neither of them was at that time conceived ? A similar statute to this was construed in Bresee v. Stiles, 22 Wis. 120, where it was held the unborn children were to take the same share in the estate as if the parent had died intestate. A like statute was construed in Wasserman v. Railway Co., 22 Fed. 872. We cannot do better than to quote from the opinion of Justice Brewer:

“In this case, the primary question I am reluctantly compelled to decide in favor of the complainant, Wasserman. I say reluctantly, for when a man on the eve of death, having a child five years of age, and living with a wife to be delivered of a second child within 20 days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either the born or unborn child, but trusted to his wife— their mother — to do justice by each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact independent of statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But the legal difficulty is this: The statute says that it must be ‘apparent from the will’ that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone ? It simply gives everything to the wife; is silent as to children. If I could look beyond the will, my conclusion would be instant and unhesitating. Limited by the statute to the instrument itself, what can be gathered therefrom? It is simply a devise of all property to the wife. No reference is made to children, born or unborn. Can I infer from its silence an intention to disinherit ? If so, the mere omissions from a will would always stand as proof of an expressed intention. And whatever of apparent hardship there may be in the present case, a fixed and absolute rule prescribed by statute cannot, for such reason alone, be ignored. That the rule was intentionally thus prescribed is evident, not alone from the clear letter of the statute, but also from the history of this question at common law, and the various provisions of the statutes of other States. At common law the will of an unmarried man disposing of all his property was presumably revoked by his subsequent marriage and the birth of a child. This rule was borrowed from the civil law. Whether revocation would follow from subsequent marriage alone or birth of child alone was perhaps a doubtful question. In Brush v. Wilkins, 4 Johns. Ch. 506, it was held that both must concur, while in McCullum v. McKenzie, 26 Iowa, 510, the birth of a child alone was adjudged sufficient. See, generally, upon this question, 1 Redf. Wills, chap. 7; 1 Williams, Ex’rs, chap. 3, § 5; 4 Kent, Comm. 521-526.
“It was also, for awhile, at least, disputed whether, such revocation followed absolutely from subsequent marriage and birth of child, or was only to be presumed, and the presumption subject to be overthrown by evidence of the testator’s intentions. Lord Mansfield, in Brady v. Cubitt, 1 Doug. 39, ruled that the presumption of revocation from marriage and the birth of issue, like all other presumptions, ‘may be rebutted by every sort of evidence.’ See, also, Johnston v. Johnston, 1 Phillim. Ecc. 473. Such seems to have been generally the ruling of the ecclesiastical courts. On the other hand, in Goodtitle v. Otway, 2 H. Bl. 522, Chief Justice Eyre held that, ‘in cases of revocation by operation of law, the law pronounces upon the ground of a presumptio juris et de jure that the party did intend to revoke, and that presumptio juris is so violent that it does not admit of circumstances to be set up in evidence to repel it.’ And in the leading case of Marston v. Roe, 8 Adol. & E. 14, by all the judges in the exchequer chamber, it was finally decided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. Such being the final solution of the question in the English courts, it cannot be that the purpose of the statute in question was to open the door to any other evidence of intention than those expressly named. On this side of the waters the matter has generally been regulated by statute, with a prevailing tendency to declare that the after-born child takes the same share that it would have done if the father had died intestate; or, in other words, the will is absolutely revoked pro tanto, unless there is some provision made for such child, or an express intention that it should receive nothing.
“The statute of Wisconsin is identical with that of Nebraska, and in Bresee v. Stiles, 22 Wis. 120, the inquiiy as -to the testator’s intentions was declared to he limited to the language of the will, and, the will being silent, the after-born child inherited. See, among many cases, the following, which show how carefully the courts have enforced the rule of revocation pro tanto in the interest of the child: Waterman v. Hawkins, 63 Me. 156; Walker v. Hall, 34 Pa. St. 483; Hollingsworth’s Appeal, 51 Pa. St. 518. In the first the testator left certain real and personal estate to his widow during her life and widowhood, to revert to his heirs upon her death or marriage, and gave the rest to his father. A daughter born two months after his death was held unprovided for by the will, and recovered the share of the estate she would have taken if he had died intestate. In the second the testator gave his entire estate to his wife, saying in the will, 4 Having the utmost confidence • in her integrity, and believing that, should a child be born to us, she will do the utmost to rear it to the honor and glory of its parents,’ — and the same ruling was made. In the last case the will in terms committed any after-born child to the guardianship of his wife, adding, 4 Which guardianship I intend and consider a suitable and proper provision for such child; ’ and still a similar decision was pronounced. Further citations would seem unprofitable.
4 4 To sum the matter up, the common-law courts of England finally reached the conclusion that the revocation was absolute upon the happening of marriage and birth of issue, and not dependent upon evidence of testator’s intention. The general tendency of statute law in this country is in the same direction, and courts, as a rule, have carefully protected the rights of after-born children. The language of the statute is plain and unambiguous. The will makes no provision for this child, does not mention or refer to her, and on its face manifests no intention that she should be unprovided for. Hence it must be held that she takes the same share in the estate which she would have taken had her father died intestate, to wit, one-half. ”

In passing this statute, the legislature required, if the father intended to disinherit the unborn child, he should indicate it in his will, and that it should not be left to extraneous testimony to show his intent.

The decree of the court below as to Harry Snow and Gertrude Snow is reversed, and a decree will be entered here giving to them the same interest, they would have in the property if the father had died intestate. As to Clara L. Snow, the decree will be without prejudice to take proceedings at law to decide whether the omission to make provision for her was intentional. As all the parties were interested in the construction of this will, the costs should be paid out of the estate.

The other Justices concurred.


text:
    GREGG v. FOX.
    Appeal — Questions not Raised Below — Instructions.
    A request for an instruction, in an action involving the validity of an unflled chattel mortgage as against a purchaser from the mortgagor, that, if the mortgagee paid money at the request of the mortgagor for any previous claim upon the property, the mortgagee has a valid claim against the mortgagor for the amount so paid, is insufficient to raise the question whether, by such payment, the mortgagee became subrogated to the rights of the prior claimant.
    Error to Wayne; Erazer, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.
    Debt by John Gregg against David Fox, as principal, and Lewis R. Grosslight and Michael Caplis, as sureties, upon a constable’s bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      V. J. Obenauer (Alfred Lucking, of counsel), for appellants.

      Lehman Bros. & F. J. Riggs, for appellee.
   Moore, J.

The plaintiff recovered a judgment for $260 damages against David Fox, a constable, and the other two defendants, who were on the constable’s bond, for the taking from him of a piano which he claims to own. The defendants appeal.

A motion was made before the trial court for a new trial, which motion was overruled. This is said to be error. No such showing was made upon this motion as would justify us in directing the trial judge to grant a new trial.

It was the claim of the plaintiff that November 28, 1894, he loaned William Coulter $260, at which time he took a bill of sale of some property, among which was the piano in question, which was erroneously described as one piano, Haines Bros.’ make, when it should have been described as an Everett piano. He further claims that between the 25th of March and April 1, 1895, he arranged with Mr. Coulter that the piano was to become his for the debt; that together they went to the Detroit Music Company, and arranged for them to send a man for the piano, to polish it up, and to then deliver it to plaintiff; and that prior to the 11th of April, 1895, it was obtained by the music company, who, after polishing it, delivered it to plaintiff at his house May 2, 1895, where it remained until March, 1896, when it was taken away by Mr. Eox by virtue of a writ of replevin at the suit of H. B. McNeil against William E. Coulter and Mary Coulter. It is the claim that, before bringing this suit, plaintiff attempted to replevin the piano, but was unable to find it. It is the claim of the defendants that October 16, 1894, Mr. Coulter gave a chattel mortgage for $105 to Mr. Mackey upon the piano in question, correctly describing it, which mortgage was filed the following day; that April 11, 1895, H. B. McNeil let Coulter have money to pay the Mackey mortgage, the piano then being in the possession of Coulter, and on the same day took a chattel mortgage on the piano and other property for $210. As the mortgage was not paid, and Coulter had parted with the possession of the property, the replevin suit before mentioned was commenced. It is the claim of plaintiff that, when the last mortgage was made, the piano had been delivered to the Detroit Music Company for him. The defendants insist the piano was then in the possession of Mr. Coulter. The trial court instructed the jury that, if possession of the property was delivered to the Detroit Music Company, their possession would be the possession of Mr. Gregg, and, if he purchased in good faith, without any notice of the chattel mortgage or claim on the part of McNeil, he would be protected; but if he was not a bona fide purchaser, or if the chattel mortgage was on file when he purchased the property, he took it subject to the rights of Mr. McNeil under the mortgage. It is now said the circuit judge should have directed a verdict in favor of defendants, because there was no proof that the property was in possession of the music company prior to April 11th, and his failure to do so is alleged as error. The court was not requested to direct a verdict in favor of defendants, and, if he had been, he should not have done so upon this branch of the case, for there was testimony tending to show the piano was delivered to the Detroit Music Company prior to April 11th. This raised a question of fact to be submitted to the jury.

But one other question remains for discussion. Defendants insist because, when the last mortgage was given, the money was paid to take up the mortgage given to Mr. Mackey, McNeil was subrogated to the rights of Mr. Mackey, and, as the Mackey mortgage was duly filed, he had a lien upon the piano to that extent. The plaintiff says this claim is now presented for the first time. Defendants presented a request reading as-follows: “If Mr. McNeil paid $200 on the request of the mortgagor for any previous claim due upon the piano, then Mr. McNeil will have a valid claim against the mortgagor for the amount paid;” and insist they raised the question in the court below. We do not discover anything in this request which indicates to the court that defendants claimed to be subrogated to the rights of Mr. Mackey. At the time Mr. McNeil took the mortgage, he did not take an assignment of the Mackey mortgage. No affidavit of renewal was filed of this mortgage prior to the expiration of the year after it was given. The entire amount of the money loaned to Mr. Coulter was named in the last mortgage, and there is nothing in the record to indicate to the court that Mr. McNeil was claiming at the time of the trial any rights growing o'ut of the Mackey mortgage. We think it too late to make that claim now.

Judgment is affirmed.

The other Justices concurred.


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    HOGAN v. NEUMEISTER.
    Execution — Exemptions.
    An unbroken two-year-old colt, never used nor shown to be intended for use in the business of the owner, who keeps two other horses for business purposes, is not exempt from execution.
    Error to Muskegon; Russell, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.
    Replevin by Lawrence Hogan against Gustav H. Neumeister. From a judgment for defendant in part, plaintiff brings error.
    Affirmed.

      Macdonald & Marr, for appellant.

      Turner & Turner, for appellee.
   Hooker, J.

The defendant, as sheriff, levied an execution, issued upon a judgment against one James Hogan, upon an unbroken two-year-old colt, and other stock, supposed to belong to said James Hogan. Lawrence Hogan, the brother of James, thereupon replevied the property, claiming to have purchased it from James. Upon the trial it appeared that James Hogan, who was an unmarried man, lived upon a farm which he rented, that he kept house for himself, and that his hired man slept in the house occupied by him. The circuit judge directed a verdict for the plaintiff as to all of the property replevied, except the colt. He held that the colt was not exempt from execution, and left the question of ownership to the jury, who found a verdict for the defendant, and the plaintiff has brought error.

The important question is whether the colt was subject to a claim of exemption. The testimony conclusively shows that he was an unbroken colt, that he had never been used, and that James Hogan, the execution debtor, had two other horses, which he was in the habit of using in his business. We discover no testimony tending to show that the colt was intended for use in his business, and in this respect the case differs from that of Carruth v. Grassie, 11 Gray, 211 (71 Am. Dec. 707), where a heifer 20 months old, which the debtor was shown to have him-. self taken when a calf, with the expectation and purpose of keeping her for a cow, was held to be within the equitable meaning of the statute. In Minnesota two young oxen were held to be exempt, when their owner, a farmer, at the time of the levy, neither owned nor possessed any team, and it was shown that they were raised and kept by him for the purpose of being used as his team upon his farm as soon as they should be strong enough, being at the time past two years old. Berg v. Baldwin, 31 Minn. 541. In Mallory v. Berry, 16 Kan. 294, Mr. Justice Brewer held that a steer 20 months old, which had never been worked, was exempt. The owner had bought the pair with the intention of using them for a team, and had paid for this one, and taken it home; the other he had not. These cases all differ from the present case in an important particular, viz., that there was an honest intention to use the animal purchased for a team. In most of them the debtor had no other team. In the case before us there is no such testimony, and, on the contrary, it is claimed that he had sold the colt to his brother shortly before the levy. He also had a team of two horses, which were in actual use on the farm.

The plaintiff claims this sale to have been made before the levy, but that it was valid, though made afterwards, because the colt might have been selected as exempt, and a debtor may do what he will with exempt property. It has been held, where a debtor is entitled to exemptions of a given kind, that, if property of that kind be levied upon, he must be given the opportunity to select his exemption from the property levied upon, and, if he neglects or refuses to select, the officer must make such selection. It is under this rule that the plaintiff attacks the levy, and, if we must say that this colt has been shown to be subject to such selection, the plaintiff must prevail. The effect of the rule mentioned is to permit the debtor to leave the matter of selection until after the levy, and, were this colt one which was serviceable and used in the farm work, it would be governed by the rule; but where there is nothing to show that it was in a condition to be so used, or that it was procured with an honest intention to be kept for such use, we should not treat it as belonging to the exempt class. To hold otherwise would make it necessary to include all stock of the species which the law exempts. Every animal which, by any possibility, might at a future time be used as a team or part of a team, would be included in the list which officers must appraise, and from which exemptions must be set off.

We think the view taken by the learned circuit judge was correct. It becomes unnecessary to discuss the other point further than to say that, as the property was not exempt, it might be the object of a fraudulent transfer.

The judgment is affirmed.

The other Justices concurred.


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    ORTMANN v. FLETCHER.
    1. Bargain and Sale — Shares oe Stock — Tender.
    To entitle one who has bargained specific shares of corporate stock to recover the purchase price, he must have kept his tender of the stock good, and have been able at any time to deliver, upon demand, the identical shares sold.
    2. Same — Pledged Stock — Delivery.
    The fact that stock is pledged is not necessarily inconsistent with the pledgor’s ability to deliver it upon demand pursuant to bargain and sale.
    3. Evidence — Contracts.
    The testimony of a party to a contract, that the other party knew when he executed the same that a different proposition, on the nonacceptance of which the contract was conditioned, had been given up, may be contradicted by anything tending to show that the proposition was under consideration at a later date.
    Error to Wayne; Frazer, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.

      Assumpsit by Charles L. Ortmann against George N. Fletcher for the price of corporate stock bargained and sold. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      De Forest Paine (C. A. Kent, of counsel), for appellant.

      Dickinson & Thurber and Charles B. Warren, for appellee.
   Hooker, J.

The parties to this action were interested in a corporation known as the International Sulphite Fibre & Paper Company, and the action was brought by the plaintiff to recover the purchase-price of 800 shares of the stock of that company, which he testified that he tendered to the defendant, according to the terms of the following writing, viz. (written on letterhead of International Sulphite Fibre & Paper Company):

“Detroit, Mich., June 14, 1890.
“Charles L. Ortmann.
“Dear 8ir: We, the undersigned, hereby agree to purchase from you eight hundred (800) shares of Internat. Sulphite Fibre & Paper Co. stock, par value $20,000, now standing in your name on the books of the said company, for the sum of (fifteen) fourteen thousand dollars, on or before September first next. Payment to be made by us in our notes running to your order for 3 and 6 months, payable at the Mechanics’ Bank, with interest at 6 per cent, per annum, upon the delivery of said stock to us. (The above change of the word ‘fourteen’ instead of ‘fifteen’ has been made before signing of this promissory letter.) Should said eight hundred shares of stock as per letter of June 13, 1890, to the Int. Sulphite F. & P. Co., proposing to purchase perpetual right to two digesters, be not utilized therefor.
[Signed] “George N. Fletcher.”

Indorsed across paper:

“This agreement is hereby accepted, and shall sell this stock as per this letter.
[Signed] “Charles L. Ortmann.”

The defendant denied the validity of this alleged contract, asserting that his signature was obtained with the understanding that it was not to be binding until several others signed it, who, together with himself, were having negotiations with the plaintiff in relation to his stock in said company, and that another arrangement was'after-wards made covering all of the plaintiff’s stock, which was reduced to writing, and signed by all upon the same day, thereby superseding the previous arrangement.

This writing provided for the sale by Ortmann, and the purchase by Weston, Dickinson, and the defendant, of 3,216 shares of stock, for a price stated, and continued as follows:

“It is further agreed by the said Ortmann, as part of the entire consideration for which said money is paid and agreed to be paid, that he hereby relinquishes to and makes over to the purchasers any, every, and all claims against them, or either of them, and against said company, for dividends, earnings, or other claim or demand of any kind or nature, including the contract made by Fletcher, Weston, Field, and Dickinson for the sale to said Ortmann of $60,000 of par value of said stock, dated May 11, 18871' And it is further agreed, as-'part of the entire consideration inducing said payment.of money and of notes to'said Ortmann,” that he, the said Ortmann, will sell and deliver to said parties for the said company, for a license to manufacture under the Mitcherlich process, in two digesters of two and one-half tons each per day, 800 shares of other stock in said company, and $2,500 in money, provided the Manufacturing Investment Company of New Jersey shall sanction such license, and to which sanction the parties pledge their best efforts in good faith to obtain; but, in case of failure to obtain said sanctions, and said transfer of said 800 shares shall not take place in accordance with this agreement for license, then for said 800 shares, and for all stock held by him, the said Ortmann agrees to and does hereby waive any and all claim of every name and nature against said company, and all and every stockholder thereof, for earnings or dividends on such stock, except subject to the liabilities of said company appearing by the books, or now outstanding in the notes of said company, — intending hereby to place said stock in the same relative positions as that of the original promoters of the company. These presents and this transaction is an amicable adjustment and settlement forever of all differences between the parties, and every of them, and of all claims, one against the other or others, or against or for said company, whether such claim or claims are admitted or denied.
“ Dated June 14, 1890.
[Signed] “Charles L. Ortmann.
“Isaac M. Weston.
“George N. Fletcher.
“Don M. Dickinson.”

On the other hand, the plaintiff claims that the contract relied upon by him was made after this writing was made, and after Fletcher knew that the purchase of the two digesters had fallen through.

The plaintiff proceeded upon the theory that, having tendered the stock to the defendant, he was entitled to recover the purchase price, and he requested the 'court to so charge by requests numbers 1 and 2. The court instructed the jury that, to entitle him to recover, it was not enough to show a tender, but that it must further appear that the plaintiff was at all times able and willing to deliver the specific stock sold. Error is alleged upon this instruction, and several cases are cited to sustain the proposition that the vendor of stock need not retain the identical shares tendered; but we think these cases are not applicable when'specific shares are bargained. In Allen v. Dubois, ante, 115, it was held that a pledgor of stock was entitled to a return of the identical shares pledged, and we think the rule should include cases when specific shares are purchased, as in this case.

It is insisted by the plaintiff that it was not necessary that he be able at all times to deliver the stock tendered, and that it was sufficient if he was prepared to deliver it upon the trial, inasmuch as the tender was refused and no demand was made for the stock. Our understanding is that it was incumbent upon the plaintiff to keep the tender good, — that is, that he must have been able at any time to produce and deliver the identical stock sold, upon demand, as the property of the defendant, — it being upon the theory of the defendant’s ownership only that the layv permits the plaintiff to recover the purchase price. It does not follow that he was not able and willing to deliver the stock because it was pledged (Stokes v. Mackay, 147 N. Y. 232), and our understanding is that the judge so held, leaving it to the jury to find whether the stock, though pledged or sold, was subject to and within his control for the purpose of delivery under his contract with the defendant, so that he could have delivered it had he been called upon for it. This was an open question, inasmuch as Ortmann had given to Standish a bill of sale of the stock, and Anderson, his receiver, had practically done the same. The charge of the judge was therefore as favorable as the plaintiff had a right to expect.

Error is assigned upon a. number of subjects in connection with the introduction of evidence. As heretofore stated, an important question of fact lay at the threshold of the case. The plaintiff claimed and testified that the defendant knew when he signed the alleged contract, on June 14th, that his proposition to use two digesters was given up. Anything that tended to contradict this was admissible. Thus, the books of the. Sulphite Fibre & Paper Company tended to show that the proposition was under consideration at a later date. The letter written by the plaintiff, and dated October 16th, had a tendency in the same direction, in connection with testimony that negotiations to that end were still pending, and were after-wards continued to his (Ortmann’s) knowledge. The court did not allow the jury to find that the plaintiff was bound to buy the digesters. He did allow them to consider the evidence relating to these negotiations, in connection with the writing sued upon, to aid them in determining whether that was a binding contract or not. The defendant stated that, as late as November 8th, he communicated with the president of the Manufacturing Investment Company in relation to this subject, at the request of Ortmann. In connection with this testimony, a copy of his letter was introduced, against objection. To the extent that it tended to show that the negotiations were still pending it was material.

We are of the opinion that the modifications of the plaintiff’s first and second requests were proper.

The judgment is affirmed.

The other Justices concurred.


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    BILSBORROW v. WARNER.
    Actions — Pleadings and Proofs — 'Variance.
    An allegation that defendant was indebted to plaintiff in a specified amount for horses obtained from plaintiff at defendant’s request, for which defendant promised to pay the amount stated, and that defendant, in payment of such indebtedness, delivered a note of a third person, knowing it to be uncollectible, by means of false representations as to the maker’s financial responsibility, is not sustained by evidence that defendant received the horses from plaintiff to sell them for him, and return to him a specified amount in money if sold for cash, and in good, bankable paper if sold on time, and that defendant delivered the note in suit to plaintiff, representing it to be good, collectible paper, but knowing that it was not such.
    Error to "Van Burén; Buck, J.
    Submitted June 8, 1898.
    Decided July 12, 1898.
    Case by Alfred Bilsborrow, T. J. Cavanaugh, and others, copartners, against Bangs E. Warner, for deceit. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Benjamin F. Heckert, for appellant.

      A. Lynn Free, for appellees.
   Hooker, J.

This action was commenced in justice’s court, and appealed to the circuit. The plaintiffs recovered in both courts.

The declaration was written, and alleged that in September, 1895, the defendant—

“Was indebted to the plaintiffs in the sum of $100 for a certain team of horses obtained from the plaintiffs at the special instance and request of the defendant, and, being so indebted, the defendant, in consideration thereof, afterwards, to wit, on the same day * * * and place, undertook and * * * promised * * * to pay unto the said plaintiffs the said sum of money; * * * and * * * at the same time and place * * * the said defendant, in payment of said indebtedness, delivered to the plaintiffs a certain promissory note, signed by one William H. Burden, by which said note the said Burden promised to pay to the said defendant *. * * or order, * * * November 1, 1895, * * * the sum of sixty-two and 50-100 dollars, for value received; and the said defendant * * * afterwards ' * * * indorsed the said note, in writing, * * * to the said plaintiffs; and the said defendant, well knowing that the said note was not good, was uncollectible, and that the maker thereof was irresponsible, undertook and promised to the plaintiffs that said note was a good note, and that the maker thereof was perfectly good and financially responsible; that the said note was secured by a real-estate mortgage; that the said real estate was worth a good many times the amount of the note, and guaranteed the payment of the said note; and the said plaintiffs aver that they, confiding in the said promise and undertaking of the said defendant, did afterwards, to wit, * * * accept the said note of the said defendant in payment of the said indebtedness due them from the said defendant. Yet the said defendant did not perform his said promise or undertaking, but thereby craftily and wrongfully deceived the said plaintiffs in this, to wit, that the said note, at the time of the making of the said promise and undertaking of the said defendant as aforesaid, was not good, but, on the contrary, was, at the time aforesaid, of no value whatever to the said plaintiffs, * * * and is at the present time utterly worthless, * * * and said note * * * was presented to said Burden * * * for payment, * * * but neither the said Burden, nor any person or persons on behalf of the said Burden, did or would * * * pay the said sum of money, * * * to plaintiffs’ damage,” etc.

The opening by the plaintiffs’ counsel was, in effect, that the defendant was a horse dealer, and received two ponies belonging to the plaintiffs, upon his agreement to ship them north, and sell them, and return to the plaintiffs $60 in money, if sold for cash, and the same amount in good, bankable paper, if sold on time; that he afterwards delivered to the plaintiffs the note described in the declaration, representing the same to have been received for said ponies, and to be good, collectible, and bankable; and that it was not such paper, as defendant well knew. Objection was made to the testimony on the ground that the case as stated was a variance from the case stated in the declaration, and the same was claimed as to the proof made. The judge .permitted the jury to find a verdict for the plaintiffs, and the defendant appealed.

It is admitted by both parties that the defendant did not purchase the horses, but, on the contrary, that he was to sell them in the capacity of agent of the plaintiffs. He did dispose of them, and the plaintiffs now claim that he did not deliver to them, and in fact did not obtain, the kind of paper for which he was authorized to sell them; that they accepted the paper which he did take upon false representations. If this is true, the plaintiffs might have returned the 'note, and sued the defendant upon the breach of his undertaking, and the measure of damages would have been $60. This was evidently the theory upon which they were permitted to recover, as the evidence conclusively showed that the defendant did not purchase the ponies. As the note indorsed by the defendant was without recourse, the recovery could not have been upon his indorsement, while his guaranty was oral, and no claim is made upon it. In his charge the court instructed the jury that, if they should find that the defendant took the ponies, promising to sell them for cash or good, bankable paper, and in fact sold them for paper which was not good and- bankable, or if the agreement was that they should be sold for cash or good, collectible paper, and the paper taken was not good, collectible paper, the plaintiffs would be entitled to their verdict. He proceeded as follows:

“Another matter which you will consider, and the third, would be what representations were made, if any, at the time the paper was turned over to Mr. Cavanaugh. If you find that the defendant represented that the paper was such as he had agreed to take, and that the agreement was as the plaintiffs claim,, and that it was not bankable paper, then you should find in favor of the plaintiffs. If you find that he made no representations whatever concerning it, that he turned it over simply under the bargain, then, as I have said, if the bargain was as defendant claims, and the paper was of a sort that he claims it to have been, then you should find for the defendant.”

It is obvious that the real cause of action here was the failure of the defendant to perform his contract, not his representation that he had performed it, or that the paper taken was good, bankable, dr collectible paper, though the representations were admissible as explanatory of the plaintiffs’ conduct in receiving the paper. But the declaration does not state such a cause of action. It alleges first that the defendant was indebted in the sum of $100 for horses obtained from the plaintiffs at his request, and that he promised to pay that sum for them, and that he afterwards delivered the note in question in payment, which the plaintiffs were induced to accept by his false representations, whereby they were injured. We are reluctant to reverse this judgment, but cannot sustain it without doing violence to the well-settled rule that the pleadings must contain a substantial statement of the cause of action proved. The contract proved is not mentioned in this declaration, while another and entirely different contract is set up. The delivery of the note and the false representations may be said to be alleged substantially as proved, but the necessary facts upon which a right of action for deceit can be predicated are not alleged as proved. .

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

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    MARX v. OTTO.
    Broker’s Commissions — When Payable — Question for Jury.
    Evidence that the defendant in an action to recover commissions for the sale of land told plaintiff that all he got over §5,000 should be his, and that nothing was said as to his being required to wait in case of a sale on credit, and that a sale was made for §5,600, of which §1,000 was paid in cash and a mortgage given for the balance, the terms being arranged by the defendant, — requires the submission to the jury of the question whether or not plaintiff was required to wait until payment of the mortgage before receiving his commissions.
    Error to Wayne; Hosmer, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Assumpsit by William Marx against Nicholas Otto for commissions on a sale of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Henry N. Brevoort, for appellant.

      George W. Coomer and W. F. Atkinson, for appellee.
   Montgomery, J.

Plaintiff sued defendant on a contract for commissions on a sale of real estate. Defendant offered, by way of set-off, a promissory note of $200, given for money borrowed. The circuit judge directed a verdict for the defendant for the amount of the note and interest, holding that plaintiff’s proofs did not make out a case entitling him to recover on the claim asserted. This ruling was challenged.

The plaintiff testified that the defendant was the owner of a piece of real estate for which he asked $5,000, and further testified as follows:

“I said, ‘How is it, Mr. Otto, if I get over $5,000?’ He said, ‘All you get over it is yours; ’ he was satisfied with $5,000. There was nothing said between me and Mr. Otto that I was to wait in case he sold on credit.”

He further testified that he was to have 2 per cent, of the first $5,000.

The testimony further disclosed that, after this arrangement as to terms, the plaintiff interested one Welch in the property, and asked him $5,600 for it; that Welch inquired as to terms of payment, and plaintiff thereupon sent for defendant, who arranged with the purchaser the terms of payment, which were $1,000 in cash and a mortgage back '•on the property of $4,600. The question is whether, under this testimony, it can be said, as a matter of law, that this contract entitled the plaintiff to an interest in the mortgage, and did not entitle him to demand his pay in cash. The circuit judge was of the opinion that the plaintiff was entitled to receive the excess over $5,000 only when the defendant had realized $5,000 in cash. Plaintiff testified that defendant himself arranged the terms, and that there was no agreement to defer his claim until the maturity of the mortgage; and while we do not intimate that there are not circumstances from which the jury might be justified in inferring that, as the transaction was closed up, defendant understood that plaintiff was to await the collection of the mortgage before exacting his $600, we are not prepared, on the other hand, to hold that this appeared so conclusively as to make it a question for the court. The case should have gone to the jury.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


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    LASSEN v. KARRER.
    1. Gaming — Election Bet — Recovery by Loser.
    1 How. Stat. § 2023, provides that any person losing any money by playing or betting on cards, or by “ any other device in the nature of such playing and betting, ” and paying the same to the winner, may recover in an action for money had and received. Held, that an action will not lie to recover money lost in betting on elections.
    2. Same — Construction of Statute.
    The statute, however, being remedial, should be liberally construed, and would be held, it seems, to cover betting on any game of chance.
    Error to St. Clair; Vance, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Assumpsit by Peter Lassen against Benjamin J. Karrer to recover money lost on an election bet. From a , judgment for plaintiff, defendant brings error.
    Reversed.

      Atkinson & Wolcott, for appellant.

      Phillips & Jenks, for appellee.
   Montgomery, J.

This action was brought to recover $500, lost to defendant by plaintiff by betting on the result of an election. At the common law, one who lost money in prohibited gaming or betting could not recover, the rule, in the absence of statute, being that the law will leave the parties in pari delicto where it finds them. This has been so universally held that it is not necessary to support the proposition by authority. In fact, the doctrine is not controverted in this case; but the plaintiff contends — and the circuit judge sustained the contention —that the plaintiff had a right of action by our statute (1 How. Stat. § 2023), which provides that “any person that shall lose any sum of money, or any goods or articles of value, by playing or betting on cards, or by any other device in the nature of such playing and betting, and shall, pay or deliver the same or any part thereof to the winner, the person so paying or delivering the same may sue for and recover such money in an action for money had and received to the use of the plaintiff,” etc. The. single question is, therefore, whether betting on the result of an election is within the words of this statute. The earlier statutes were broader, and covered “ any betting whatever.” 1 Comp. Laws 1857, § 1582; 1 Comp. Laws 1871, § 1992. The statute was amended to read as above quoted by Act No. 171, Pub. Acts 1877. Whether the more general language was omitted through inadvertence or intentionally we have no means of ascertaining; but, however this may be, the act itself must-speak, and, if it be not fairly susceptible of a construction which gives a right of action, we cannot extend its terms. We do not imply that this provision of the statute should have a strained construction. On the contrary, it is remedial in its nature, and may properly be given a liberal construction. Grace v. M’Elroy, 1 Allen, 563. We would not, therefore, hesitate to hold this provision of the statute to cover betting on any game of chance; but the question remains, Is a betting on the result of an election a device in the nature of playing and betting on cards ? We think not. The word “device” can hardly refer back to the word “lose.” It was not intended to say that, one who devises a scheme for losing may recover, but the language “money lost in betting on a game of cards, or a device in the nature of such game,” must be construed to mean some device or game, instituted either by the parties themselves or others, calculated to induce betting, and designed to do so. In other words, the most extended construction permissible would limit this language.to betting on games of cards played by those who made the wager, or by others, or betting on some other game of- chance or skill. An election does not fall within the definition of a game. Woodcock v. McQueen, 11 Ind. 14.

The judgment will be reversed, and judgment entered for defendant, with costs of both courts.

The other Justices concurred.


author: Grant, C. J.

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    WADHAMS, RYAN & REULE v. WESTERN ASSURANCE CO.
    Fire Insurance — Proofs of Loss — Waiver—Agent’s Authority.
    The Michigan standard policy provides that “ no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and, as to such provisions and conditions,” only when srfch waiver “shall be written upon or attached hereto.” Held, that a claim of waiver of proofs of loss, based upon verbal statements of the company’s agent, could not be sustained.
    Error to Washtenaw; Kinne, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Assumpsit by Wadhams, Ryan & Reule, a corporation, against the Western Assurance Company, on a policy of fire insurance. Erom a judgment for plaintiff, defendant brings error.
    Reversed.

      Chamberlain & Guise, for appellant.

      Thomas D. Kearney and John L. Duffy, for appellee.
   Grant, C. J.

A fire occurred in plaintiff’s store, which was speedily discovered and put out, but its goods were somewhat damaged by smoke. The stock was insured in several companies, including the defendant. The policy was a Michigan standard policy, identical in terms with that in Gould v. Insurance Co., 90 Mich. 302, where the material provisions of the policy are stated. Plaintiff did not furnish proofs of loss as required by the policy, and was permitted to recover upon the ground of waiver. Plaintiff’s managers were men of business, and fully understood their duty under the contract. The local agent had no authority to waive the proofs, and all conversations with him should have been excluded. The adjuster of the company visited the premises three days after the fire, and-Mr. Wadhams, the manager of the plaintiff, testified that the adjuster then informed him that he must make out an inventory, which undoubtedly was understood by both to mean the proofs of loss. The adjuster returned about six weeks after, and had an interview with Mr. Wadhams. Meanwhile most of the other companies had settled upon a, basis of 61,750. This settlement was reached by means of an arbitration, to which defendant was not a party. At this interview Mr. Wadhams testified that he showed defendant’s adjuster the agreement to arbitrate, and a summary of an inventory, and that all that the adjuster said was that his company would not settle upon such a basis. This is the sole act upon which a waiver is based.

To hold this to be a waiver would be to virtually annul the statute prescribing the terms of these contracts, to be observed alike by the insurer and the insured. The adjuster testified that he then told Mr. Wadhams that it would be necessary for him to produce an'inventory. The purpose of this statute is to protect both parties, by requiring a waiver to be in writing. The case is so squarely within that of Gould v. Insurance Co. that we refrain from further discussion. See, also, Ostr. Fire Ins. (2d Ed.) §§ 32, 57.

The judgment is reversed, and, inasmuch asno different case can be made upon a new trial, none will be ordered.

The other Justices concurred.


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    KINDERMANN v. CITY OF WEST BAY CITY.
    Municipal Corporations — Appointment of Special Police— Yeto of Mayor.
    The charter of West Bay City .(Act No. 442, Local Acts 1897) provides (chapter 5, § 3 ) that the council shall appoint such policemen as they shall deem necessary. Chapter 9, § 3, gives to the mayor the power to suspend the immediate ox>eration of any ordinance or resolution of the council, and provides that none shall go into effect if, within three days after its x>assage, he files his reasons in writing why it should not go into effect, unless afterwards adopted by a two-thirds vote of the aider-men. The mayor, city clerk, and aldermen constitute the council. Held, that a resolution providing for the apxiointment of a special x>oliceman, and Selecting the person to be appointed, is subject to veto.
    Error to Bay; Maxwell, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Assumpsit by Nester Kindermann against the city of West Bay City for salary as policeman. From a judgment for plaintiff, defendant brings error.
    Reversed.

      S. G. Houghton, for appellant.

      Walton & Hitchcock, for appellee.
   Hooker, J.

The plaintiff recovered a judgment for $10 against the defendant upon the claim that he was appointed policeman of said city, and that such sum was due him under such appointment. Error is brought by the defendant, who maintains that the plaintiff was not lawfully appointed, and that he has performed no services for the city. Section 3, chap. 5, Act No. 442, Local Acts 1897, provides that—

“ The council shall appoint * * * one chief of police, and such other number of policemen with pay, and such number of policemen and watchmen without pay, as they shall deem necessary.”

Section 3, chap. 9, of the act, contains the following provision:

“No ordinance or resolution passed by the council shall have any force or effect if on the day of its passage, or on the next day thereafter, the mayor or acting mayor shall lodge in the office of the city clerk a notice in writing suspending the immediate operation of such ordinance or resolution. If the mayor or acting mayor shall, within three days after the passage of any such ordinance or resolution, lodge in the office of the city clerk his reasons in writing why the same should not go into effect, the same shall not go into effect nor have any legal operation, unless it shall, at a subsequent meeting of the council, be passed by vote of two-thirds of all the aldermen elect.”

On January 24, 1898, the following action was taken by the council:

“ Whereas, this council was on the 10th. instant petitioned by a large number of citizens and taxpayers of the First and Second wards of said city, said petition submitting that the police protection furnished that portion of the city was insufficient, and asking that one additional policeman be appointed therefor:
“Resolved, that the council proceed to appoint by ballot one additional policeman, as per the prayer of said petitioners.
“Adopted.
“Yeas: Gleason, Portt, Hawes, Jodway, Grant, F. H. Davis, Wadrop, — 7.
“Nays: E. L. Davis, Thomson, Fox,- — 3.
“Council proceeded to appoint an additional policeman. Result as follows: Numerous ballots being taken, the last ballot stood: Róese, 1; Kiesel, 2; Kindermann, 7.
“Nester Kindermann declared appointed policeman.”

The action was promptly vetoed.

It is contended upon behalf of the plaintiff that the appointment of the policemen is confided to the aldermen, and that the mayor has no authority in the premises. The mayor, city clerk, and aldermen constitute the council, under chapter 8 of the charter, hereinbefore cited. Whether the power to veto an election of charter officers when elected by the council exists under the charter, we need not inquire. In the case before us the council was given authority to determine whether or not it would have policemen, and a resolution to provide for a policeman is clearly subject to veto. Not only the selection of the officer, but the determination to have a policeman, was involved in the action taken. The mayor professed to veto this action — not alone the selection of the plaintiff —upon grounds which show that the resolution to provide for an officer was aimed at.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    JOHN HANCOCK MUTUAL LIFE INSURANCE CO. v. DICK.
    Life Insurance — Proofs of Death — Conclusiveness of Recitals —Estoppel.
    Statements in tlie proofs of death, made in good faith by the beneficiary under a life-insurance policy, upon information received from the attending physician, as to the disease which caused the death of the insured, while evidence, in the nature of an admission, of the fact stated, are not so conclusive as to estop the beneficiary from showing that the insured died from some other cause.
    Appeal from Wayne; Donovan, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.
    Bill by the John Hancock Mutual Life Insurance Company against Elizabeth Dick to cancel a policy on the life of one John J. Dick, and to enjoin the prosecution of an action at law thereon. Defendant filed an answer in the nature of a cross-bill, asking a decree for the amount of the policy. From a decree dismissing complainant’s bill, and for defendant upon her answer, complainant appeals.
    Affirmed.

      Alfred Russell, for complainant.

      Philip T. Van Zile, for defendant.
   Hooker, J.

The complainant issued an insurance policy upon the life of one John J. Dick, which he suffered to lapse. A short time afterwards his son presented a certificate of good health, reading as follows:

“Detroit, Mich., February 18, 1896.
“I, John J. Dick, of Detroit, Mich., being the person' whose life is insured under policy No. 28,251 in the John Hancock Mutual Life Insurance Company, do hereby certify that I am in as good health as'when first examined on my application for said policy, and that my family record is unchanged. I also understand and agree that the payment of premium due January 8, 1896, is received, and said policy is now reinstated, by said company, on condition of the truth of the above statement. ■ John J. Dick.
‘ ‘ Witness:
“Note any change in family record below.
“I witness the above.
“H. C. Judson, M. D.,
“ Physician of Family.”

At the same time the overdue premium was paid. A day or two later, John J. Dick died. The bill was filed to cancel the renewal receipt given at the time the premium was paid, and has been before us, upon demurrer, on a former occasion. See 114 Mich. 337. It is now before us upon the merits, having been appealed by the complainant, against whom a decree for the amount of the policy was granted in the circuit court.

Two questions are presented: First, the claim that the renewal was obtained by fraud; and, second, that the certificate was a warranty of good health, which the proof shows that Mr. Dick did not enjoy at the time.

In our opinion, the preponderance of 'the evidence shows that the renewal was not obtained through fraud. It is true that the statements made by Dr. Judson may be criticised as not entirely consistent upon the subject of the time that he was called to treat the deceased for his last illness. But, aside from his testimony, there is much evidence, from the family, neighbors, and acquaintances, tending to show that the deceased was not attacked by his last illness until after the renewal of the policy.

The proofs of' loss state that the deceased died from typhlitis, and it is urged that the nature of this disease is such as to conclusively show that he must have been ill before the certificate of good health was furnished. We are of the opinion that the proofs justify the conclusion that he may not have died from that disease, but from some other cause. In this connection it is insisted that we must find that he died from that disease, inasmuch as the beneficiary has decided upon that, and based her claim and proofs of loss upon it. We have no doubt that the proofs of loss should be treated as evidence of the fact stated, being in the nature of an admission; but it is subject to explanation, and cannot have the effect of an estoppel, when made upon information received from the attendant physician, and in good faith. We find nothing in the case of New York Central Ins. Co. v. Watson, 23 Mich. 486, which is at variance with this doctrine; and the same may be said of the other cases cited. In Irving v. Insurance Co., 1 Bosw. 507, where the assured furnished an account of loss under a clause in the policy requiring it, and making it a condition precedent to “his right to recover,” — the loss “not being payable until 60 days after such account is delivered,” — it was held that the defendant had a right to take the facts as he stated them, and that, had they been subsequently corrected, it would have been entitled to 60 days for examination, and that, “for the purposes of this action and its decision, the plaintiff is concluded by his affidavit.” That falls short of the broad contention made here. The case of Campbell v. Insurance Co., cited as 99 Mass. 317, we do not find.

Upon the proofs, we think that the complainant has failed to sustain the case made by the .bill

The decree is affirmed, with costs.

The other Justices concurred.

       See 10 Allen, 213.


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    KETCHAM v. AMERICAN MUTUAL ACCIDENT ASSOCIATION.
    Accident Insurance — Application—Warranties — Knowledge op Agent — Waiver.
    An application for accident insurance provided that the insurance should not take effect until approved by the officers of the company, and that it should be based upon the statements contained in the application, which were warranted to he true. The policy issued thereon recited that it was in consideration of the warranties contained in the application, and that no waiver should be claimed by reason of any act of any agent unless authorized in writing by the president of the company. Certain material representations in the application, as to the past health of the applicant, were known by him to be untrue. Hold, that the policy was avoided, notwithstanding the agent who solicited the insurance had approved of the statements in the application, with knowledge of all the facts.
    Error to Kent; Adsit, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.

      Assumpsit by Emily B. Ketcham against the American Mutual Accident Association on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Dwight Goss (N. J. Brown, of counsel), for appellant.

      Boltwood & Boltwood (M. C. Phillips, of counsel), for appellee.
   Moore, J.

The husband of the plaintiff was insured in the defendant company. He accidently slipped and fell, resulting in injuries which disabled him for a time. This suit was brought upon the policy. The circuit judge-directed a verdict. The plaintiff appealed.

A number of questions are raised by counsel, but the-decision of one of them must end the case. At the time Mr. Ketcham applied for insurance, he was 53 years old. He was a soldier, and while in the army was sick with typhoid fever, resulting in a partial paralysis of his hips and legs. He had been lame so long, he was obliged to use a cane, but for the year preceding his application, though still lame, he got along without a cane. He had suffered two sunstrokes, which, as expressed by him on the witness stand, “at the time affected my whole general nervous system, back, spine, head, and everything else.” At the time he made his application, he says he thought he had outgrown the effects of the sunstroke. His claim is, he was urged to insure in defendant company by its agent, who knew him well, and had known him for years. The application was in writing, and was filled in by# the assured. ■ Before writing the answers to-the questions, Mr. Ketcham says he told the agent truthfully what his experiences had been, and the answers written in had the approval of the agent. The application provided the insurance should not take effect until approved by the officers of the company; that the membership should be based upon the statements contained in the application, which were warranted to be true and complete, and that the applicant had not concealed anything material to be known to the association. The certificate issued recites it is in consideration of the membership fee and the warranties and agreements contained in the application, and that no waiver shall be claimed by reason of any act or acts of any agents unless authorized in writing by the president of the association. In the application were the three following questions, all of which were answered in the negative:

“1. Have you ever received a severe bodily injury? If so, of what nature ?
“3. Have you ever had, or are you subject to, fits or any disorder of the brain or any mental infirmity ?
“3. Have you ever had, orare you now suffering from, any bodily deformities, infirmities, hernia, wounds, or any disease?”

From what has already been said, it is evident these questions are material ones, and the answers made to them were not true. It is also perfectly apparent the officers of the association could not intelligently decide whether the risk was a desirable one, unless the questions were truthfully answered. It is urged that, as the agent knew the answers were not true, his knowledge was the knowledge of the company, and, having issued the policy, the company is bound. The courts have always been anxious to take care of the rights of the assured when the applicant has relied upon the agent informing the company what had been truthfully told to him about the character of the risk; but the courts never have said the company is bound by statements contained in an application, when not only the agent, hut the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action. To so hold would put these organizations completely at the mercy of dishonest and unscrupulous agents. As soon as the defendant learned what the situation was, it returned the insurance money to Mr. Ketcham, and denied any liability under the policy. The court did right in directing a verdict for defendant. Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894); Cook v. Insurance Co., 84 Mich. 12; Michigan Mutual Life Ins. Co. v. Reed, Id. 524 (13 L. R. A. 349); Finch v. Modern Woodmen of America, 113 Mich. 646.

Judgment is affirmed.

The other Justices concurred.


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    SOLOMON v. WIDNER.
    Trover — Conversion oe Timber — Wild Land — Deeds—Evidence op Title.
    In. an action for the conversion of timber cut and taken from wild land, a deed conveying the land to plaintiff is insufficient to show his title, where he was not in possession of the land, and it is not shown that his grantor had the title thereto.
    Error to Iosco; Simpson, J.
    Submitted June 9. 1898.
    Decided July 12, 1898.
    Trover by Selig Solomon against-John A. Widner for the conversion of certain timber. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Dafoe & Gustin, for appellant

      M. J. Connine, for appellee.
   Moore, J.

Plaintiff recovered a judgment against defendant for the conversion of 303 cedar trees. Defendant appeals.

The suit 'was commenced in justice’s court. The declaration was oral “for the conversion of 350 cedar trees severed from the freehold from the southeast quarter,” etc. It was the claim of the defendant that he had nothing to do with the cutting of the trees, but that they were cut by mistake by Mr. Colton, who was in the employ of Mr. Ayer. The defendant claimed he was also in the employ of Mr. Ayer.

The record shows the land from which the trees were cut was wild land. Plaintiff obtained a deed of these lands in 1892. He went upon the lands for the first time in June, 1893. At that time the timber had been cut. Some of it was in a stream running through the land, and some of it had floated down stream. It was marked with the snowshoe mark. To show his right to the timber, plaintiff introduced his deed in evidence. Objection was made because it was not proof of title, and it was received subject to the objection. No proof was offered showing title in plaintiff’s grantor when the deed was made. In the charge of the judge to the jury he told them:

“While plaintiff has not traced his title from the government, yet by the introduction of this deed he has identified and proved the title of himself to the timber, and that he owned it, which he claims was taken, and undertakes to show was taken, from this land, and swore himself, and by this deed shown, he was the owner of such timber.”

There are a good many assignments of error, but the one in relation to the effect of the deed we think is conclusive. It is doubtless true, if Mr. Solomon had been in possession of the land, the introduction of the deed, without tracing title further back, would have been sufficient to authorize him to maintain this action against a stranger to the title; but, as we have already shown, he was neither in possession of the timber nor of the land at the time of the alleged conversion. His right to maintain the action was shown only by the deed, which may or may not have been given by one having title. The case is controlled by Crawford v. Corey, 99 Mich. 415.

Wé do not deem it necessary to discuss the other assignments of error, because they are either not well taken or are not likely to occur again.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

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    REEVES v. REEVES.
    1. Alimony — Beal Estate.
    In awarding alimony, a portion of the husband’s real estate may be set off to the wife.
    2. Same — Estates by Entirety.
    The fact that the title to the real estate is held jointly by the parties|will not preclude its being set off as alimony.
    3. Same — Homestead.
    The homestead may be awarded as alimony to the wife, who is given the custody of the children.
    Appeal from Kent; AÜsit, J.
    Submitted June 9, 1898.
    Decided July 12, 1898.
    Bill by Eleanor C. Reeves against George R. Reeves to compel a conveyance of real estate under a decree for alimony. From a decree for complainant, defendant appeals.
    Affirmed.

      Maher & Salsbury, for complainant.

      C. C. Howell (Edwin F. Sweet, of counsel), for defendant.
   Long, J.

On April 23, 1896, a decree of divorce was granted to complainant from the defendant. That decree provided that complainant have the custody of the two minor children. It also provided that the defendant pay to complainant $3,000, and certain costs of the proceedings, within 30 days,— complainant to release all interest in defendant’s property,— and, in default of payment of said $3,000 within that time, then that the property described as lot 12, block 6, of Wenham’s addition to the city of Grand Rapids, Kent county, Mich., be conveyed to complainant. These moneys not having been paid, the present bill is filed to compel the conveyance of •said property. An answer was filed to the presen] bill, •and replication thereto, and proofs taken in open court. The court decreed that defendant execute and deliver the deed, and that the decree stand as a conveyance, when ■duly recorded. From this decree the defendant appeals.

Counsel contend that the provision in the decree that defendant make, execute, and deliver a deed of conveyance •of the premises to the complainant is void, and a suit to ■enforce it cannot be maintained, on the grounds:

1. That the title to defendant’s real estate could not lawfully be taken from him, and transferred to the complainant, in this way.

2. That the particular property in controversy is defendant’s homestead.

3. That the property was conveyed to the parties as husband and wife, and he cannot be deprived of his interest therein.

4. That the court could not give to the wife, as alimony, the entire property of the husband.

The last point need not be discussed, as we are satisfied from the testimony that the husband had interests in ■other property, which he now controls, and which leaves him well provided for, aside from the property in controversy.

The court, in awarding alimony, may set off a portion of the husband’s estate to the wife. McClung v. McClung, 42 Mich. 53; Brick v. Brick, 65 Mich. 230. In the present case the property in controversy was held jointly by the husband and wife, and was of the value of $4,000. It was incumbered by a mortgage of $1,000. The other property of the husband the court below found to be of the value of $10,000, incumbered to the amount of about $2,000.

It is contended by the solicitor for defendant that while the court may award a suitable alimony, and may cause the rents of the real estate to be applied to the payment of alimony, it has no power to transfer title; citing Seibly v. Ingham Circuit Judge, 105 Mich. 584. In that case ,a decree of divorce was granted, and the decree contained the clause, “It is further ordered that the consideration of the question of alimony be, and the same is hereby, reserved for further order and decree herein.” Before any further steps were taken, the husband died, and the wife then petitioned to be allowed alimony out of the estate. It was held that the right to award alimony might be reserved by the court in its decree, but the order was vacated here because neither the heirs at law nor legatees were made parties, though without prejudice to the filing of a new petition. The question was not suggested that the title to the real estate could not be transferred by the order of the court of chancery, though it was said that the court might sequester it.

The fact that the title was held jointly by the parties has no force in the determination of the question here. The husband’s interest in the property was transferred to the wife by the terms of the decree, and could be transferred • the same as the title to any other property. The wife owned the other moiety.

We think it unnecessary to discuss the question of the homestead right, which counsel for the husband raise. The parties cannot live together. The wife has the custody of the children. It cannot be the home of both. The constitutional provision as to homesteads has no application here.

The decree must be affirmed.

The other Justices concurred.