text:
    PETIT v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Cotenants — Unauthorized Sale of Common Property — Recovery of Undivided Interest — Defenses.
    An heir’s right to recover his undivided interest in land conveyed by his co-heirs without authority cannot be defeated by showing that, upon partition, he can obtain satisfaction from his co-heirs out of the unsold portions of the estate.
    2. Wills — Power of Sale — Restrictions.
    The eighth clause of a will read as follows: “I hereby direct that my executors convey to purchasers, by proper deeds of conveyance, what is herein directed to be sold and converted into money, and to my children the several shares herein provided for them,” etc. The ninth clause empowered the executors ‘ ‘ to sell and deed and convey, according to the true intent and meaning hereof, all and any of the property of my estate left hereby in their hands.”' The preceding clauses provided for sales of the land only at specified times and for specified purposes. Held, that the executors had only a conditional power of sale.
    3. Same.
    A will gave the use of certain land to the testator’s children, subject to the provision that, whenever the public good and the best interest of the estate should require, the land should be platted, and so many of the lots sold as should be necessary to create a fund sufficient to pay from the income the taxes and expenses of platting. Reid, not to authorize a sale of any portion of the land where it had not been platted.
    4. Same — Perpetuities.
    Where a provision of a will has been held void for its contravention of the statute against perpetuities, a power of sale conferred upon the executors to enable them to carry out the invalid provision is inoperative.
    Error to St. Clair; Eldredge, J.', presiding.
    Submitted February G, 1897.
    Decided September 23, 1897.
    Ejectment by Frank B. Petit against the Flint & Pere Marquette Railroad Company. From a judgment for defendant, plaintiff brings error.
    Reversed.
    The following are the findings of fact and conclusions of law:
    “This action is brought by plaintiff to recover an undivided quarter of ‘ all that part of the southwest quarter of the northwest quarter of section 15, town 6 north, of range 17 east, which lies south of the right of way of the Chicago & Grand Trunk Railroad,’ situate in the county of St. Clair, in this State.
    “pacts.
    “(1) The lands in controversy are a part of lands granted by the United States to Stephen B. Thornton by patent dated October 15, 1835, recorded in St. Clair county, in Liber 22 of Deeds, page 498.
    “(2) The west half of the northwest quarter of section 15, a part of the lands covered by the grant above mentioned, was conveyed by Stephen B. Thornton to Edward Petit, by warranty deed dated May 6, 1836, recorded in Liber E of Deeds, on page 93.
    “(3) Edward Petit, above named, for over 20 years prior to his death, lived upon and occupied said west half of the northwest quarter of said section 15. The same was known and called the ‘Petit Homestead.’
    “(4) The said Edward Petit died, testate, March 18, 1875, still owning and occupying as a homestead some 65 acres of this land, the west half of the northwest quarter of section 15, and leaving surviving Mm the following children, to wit: Victoria Louisa Petit (now Smith), born August 26, 184=1; Marshall N. Petit, born September 8, 1849; Frank B. Petit, born January 15, 1855; and John B. Petit, born July 18, 1857, — his only heirs at law, no widow surviving him.
    “(5) The will of the said Edward Petit, consisting of a will made September 1, 1873, a codicil made September 9, 1874, and a second codicil, made on the 9th day of February, 1875, was admitted to probate in St. Clair county April 28, 1875. A copy thereof is attached hereto, together with a copy of the order of the probate court allowing said will, and granting administration of his estate to the executors named therein, and is marked ‘ Copy of the Will of Edward Petit,’ ‘Exhibit A.’
    “(6) Prior to his decease, the said Edward Petit had granted to the Chicago & Grand Trunk Railroad Company or its grantors a right of way across the southerly part of his said homestead, which forms the northern boundary of the lands in question.
    “(7) On the 1st day of November, 1877, Frank B. Petit, the plaintiff, made, executed, and delivered a deed to Silas L. Ballentine, of Port Huron, of which the annexed Exhibit B is a copy, and which was recorded November 5, 1877, in Liber 61 of Deeds,'page 114.
    “(8) In the tax rolls for the years 1878, 1879, 1880, and 1881, lands were assessed as follows, to wit (E. Petit estate): ‘ The west fractional half of the northwest quarter of sections 15, 16, 17, excepting and reserving the lands hertofore sold to E. Fitzgerald, Smith, Wright, Read, and others, and about one and a half acres in the northwest corner, and one and a half acres being in the Indian reserve, and also the Chicago & Grand Trunk Railway, being about 55 acres.’ In each of these years the lands as above described were returned delinquent, the taxes being unpaid, and on return to the auditor general were, in each year, rejected for insufficient description, and the amount of several taxes charged back to the county, and the certificates thereof of the auditor general laid each year before the board of supervisors, whose action relative thereto is set forth in the annexed statement, marked ‘Exhibit C.’ In the roll of 1882, lands were assessed in the same language used in the rolls of the years above mentioned, and reassessed taxes for the years 1878, 1879, 1880, and 1881 returned delinquent. The lands above described (in the tax rolls) were sold for unpaid taxes of 1882, October 6, 1885, and bid in to the State for $817.66.
    “(9) In the several tax rolls for the years 1883, 1884, 1885, 1886, and 1887, lands were assessed in the same language as used in the roll of 1882, returned delinquent, and rejected by the auditor general for the insufficient description.
    “(10) On the 1st of May, 1889, Herman W. Stevens became the purchaser of the rights of the State in the lands as sold to the State at the above-mentioned tax sale of 1885, took from the deputy auditor general a deed, of which the annexed Exhibit D is a copy.
    “ (11) Prior to April 1,*1889, the Port Huron & Northwestern Railway Company had taken, and was on that day in the occupancy of, a strip of land 66 feet in width across the lands in question next south and adjoining the right of way of the Chicago & Grand Trunk Railroad; and, on said April 1st, the defendant company bought the rights and franchises of the Port Huron & Northwestern Railway Company, and went into possession of the said strip, and soon thereafter began negotiations with the executors of the will of Edward Petit to acquire the title to the premises in question.
    “(12) On the 11th of September, 1889, the said executors, for the consideration expressed, made their deed to the defendant company, a copy of which is hereto annexed, marked ‘Exhibit E,’ and also caused to be duly executed and delivered the individual deed of Louisa V. Smith, Marshall N. Petit, and John B. Petit, a copy of which is attached, marked ‘Exhibit F.’ The sum paid by the defendant company was $2,144.40.
    “(13) Immediately after taking the above deeds (in the twelfth paragraph mentioned), the defendant began making improvements on land south of the strip, and built a roundhouse, turntable, and several tracks during the fall of 1889.
    “(14) During the summer of 1889, the ‘Tunnel Company, ’ a corporation duly organized, also negotiated with the said executors for the purchase of a portion of the homestead lying north of the Chicago & Grand Trunk Railroad, comprising some four acres. Judge Stevens was acting for the Tunnel Company, and in the interest of that company took the tax deed from the State (Exhibit D), then intending and expecting to be reimbursed out of the price paid by the Tunnel Company. The taking of this tax title was with the approval of Farr and, one of the executors. Upon consideration, the attorneys for the Tunnel Company decided to acquire title to the land they wished by condemnation proceedings, as a measure of safety.
    “(15) On the 2d day of October, 1889, Judge Stevens and wife, upon payment by Farrand, out of the proceeds of the sale to defendant, of the sum paid the State, to wit, $1,177.43, conyeyed the lands described in the deed from the auditor general (referring to said deed) to Bethuel C. Farrand, Marshall N. Petit, and Louisa Y. Smith, ‘executors and trustees of the estafe of Edward Petit.’
    “(16) Taxes upon the homestead for the years 1883, 1884, 1885, 1886, and 1887, aggregating $972.15, remaining unpaid, at the request of Farrand, executor, Judge Stevens negotiated an adjustment with the city authorities of Port Huron (the corporate limits of which had been extended over the lands) by which, for $750, the city treasurer receipted in full for said taxes, and Farrand paid to said Stevens, December 6, 1889, the sum of $800, being the sum paid by Stevens and a fee of $50. Farrand also paid the state and county tax for 1889, $29.93, and the city tax for the year, $163.28.
    “(17) On the 20th day of September, 1889, Silas L. Ballentine conveyed, by a deed of that date, to the defendant company, the lands as described in Exhibits E and F, he making and delivering the deed at the request of B. C. Farrand, one of the executors. This deed, and as well those of which Exhibits E and F are copies, were recorded in the office of the register of deeds for St. Clair county, October 4, 1889.
    . “(18) The plaintiff, pending the negotiations for sale to defendant of these lands, and also while the condemnation proceedings instituted by the Tunnel Company in the fall of 1889, and shortly after the 11th of September, were pending, was in Montana, and had correspondence with Farrand, executor, and with Judge Stevens, and as well with O’B. J. Atkinson. Exhibit G is a copy of a letter to him from Judge Stevens, soon after its date (October 18, 1889) forwarded to Atkinson. Exhibit H is a copy of a letter from him to B. C. Farrand.
    “(19) After the award in said proceedings had been made, Judge Stevens was employed by the executors to file a bill in chancery for them for a construction of the will of Edward Petit. The bill was filed April 15, 1890, and only the children and grandchildren were made parties thereto. N. E. Thomas appeared for the defendants in that suit pursuant to an understanding had at a conference had between Judge Stevens and the executors, and a power of attorney from the plaintiff. He was appointed guardian ad litem for the minors made defendants. Issue was joined, and the cause heard June 25, 1890. The suit was evidently an amicable one, and the special object of the executors and the heirs in having the bill filed was to know how to divide the $2,400 deposited by the Tunnel Company in the probate court. The defendant company in this case was not made a party to the bill so filed. Decree was entered August 1, 1890, which is adopted as the opinion of the Supreme Court on appeal by the executors. See Farrand v. Petit, 84 Mich. 671.
    “(20) On the 2d day of March, 1891, upon the application of plaintiff and John B. Petit for a determination as to whom the money deposited by the Tunnel Company in the condemnation proceedings should be paid, an order was made in the probate court for St. Clair county, of which the annexed Exhibit I is a copy; and thereupon the award and the interest thereon were paid to the four children of Edward Petit in equal shares, the share going to the plaintiff being paid to N. E. Thomas, as his attorney in fact, who subsequently accounted therefor and paid the same to plaintiff.
    “(21) Plaintiff having returned from Montana soon after the distribution of the moneys as mentioned in the preceding paragraph, this suit was commenced, the defendant company being in the exclusive possession of the whole of the lands described in Exhibits E and F.
    “(22) At some time prior to the death of Edward Retit he had caused a map of at least the portion of the homestead lying north of the Chicago & Grand Trunk Railroad to be made by one I. D. Carleton, and in his second codicil it is mentioned as the Retit Plat.’ This map was not executed and acknowledged by said Petit, or recorded, in compliance with the provisions of chapter 32 of the Compiled Laws of 1871, as amended by Act No. 108 of the Laws of 1873.
    “conclusions of law.
    “(1) The sale of the lands described in Exhibit D, at the tax sale of 1885, was unauthorized and void, and Exhibit D conveyed no valid title to the premises in question.
    “(2) The plaintiff is not estopped to assert, in this action, title to the premises in question, by reason of any act done by him, nor by reason of nonaction on his part. Title to land in this State cannot, in an action of law, be maintained upon an estoppel based on action, oral statement, or silence.
    “(3) The fact that Louisa V. Smith, Marshall N. Petit, and John B. Petit, the other three children and heirs of Edward Petit, deceased, by their individual deed (Exhibit F), in terms conveyed to defendant, as a whole, ‘ all that part of the southwest quarter of the northwest quarter of section fifteen (15), in town six (6) north, of range seventeen _(17) east, which lies south of the right of way of the Chicago & Grand Trunk Railroad,’ and defendant’s improvements on the land, do not bar an action of ejectment by plaintiff to recover his claimed undivided one-quarter of said described lands, whatever effect such conveyance and improvements might have on the rights of parties in a proceeding in chancery for a partition of the ‘homestead farm.’
    “ (4) The deed from Frank B. Petit, the plaintiff herein, to Silas L. Ballentine (Exhibit B), did not convey the premises in question, or plaintiff’s interest therein.
    “(5) The decree in the case of Farrand v. Petit, 84 Mich. 671, is not conclusive as to the defendant not made a party to that suit; and the defendant company is at liberty, in this suit, to contend, at least, for the existence of a valid power in the executors under the will of Edward Petit, deceased, to convey to it the premises in question. The decree in that case is to be read in the light of the facts presented, the issue made, and the purposes of the suit or proceeding; and it is not to be extended to a holding that the will of Edward Petit, deceased, did not create a valid power in the executors to sell and convey the premises in question. The invalid provision of the sixth clause, attempting to restrain alienation for a fixed period, one not based on lives, may be eliminated from the will, and the realty, not in other portions disposed of, be held to pass as intestate property to the heirs of the testator; yet it may so pass under the provisions of our statute (2 How. Stat. § 5574), and be subject to the execution of a power of sale created in the will of deceased. If the sixth clause, as an entirety, is to be held void for its contravention of the statutes against perpetuities, yet it is to be read and considered in construing other valid clauses of the will. The intention of the testator that portions of the homestead should be sold to raise a fund, the interest of which was to pay “the taxes, etc., charged upon the homestead, contained in the sixth clause, constituted a direction to convert the same into money; and the eighth directs sale and conveyance to purchasers of what is directed in'the will to be converted into money. The ninth clause vests in the executors, for the purpose of facilitating the sale, division, and distribution of the estate, the power to sell and convey all and any of the property by the will left in their hands. As to the property in question, as the executors, by the terms of the will, are not expressly authorized and empowered to receive the rents and profits, it may be held that no estate vested in them; yet this clause must be held to create in them a valid power in trust, and their deed to defendant (Exhibit E) is to be held a good execution of said power, in this action.
    “(6) The substitution of Mrs. Smith as one of the executors of the will, by the second codicil, in the place of Henry Fish, named in the main will, is not a revocation of the giving part of the ninth clause, -nor of the power of sale created therein. The whole will, including the codicils, is to be read together in construing the will; and the evident intent of the testator, deducible from the whole, was to grant to the executors of the will, as changed by the second codicil, the estate and powers created by the various provisions of the will that are lawful.

      “(7) The deed from plaintiff to Mrs. Stevens of the premises, made, as it was, after this suit was commenced, was inadmissible as a defense, and would not, in view of the pleadings, affect the plaintiff’s right to recover in this action.
    “Judgment will be entered for the defendant, with costs.”

      H. W. Stevens and N. E. Thomas, for appellant.

      William L. Webber (O’Brien J. Atkinson, of counsel), for appellee.
   Moore, J.

This is an action of ejectment for an undivided one-fourth of the land described in the declaration. The case was tried before the circuit judge. His findings of fact and conclusions of law will be found in the statement of the case. Plaintiff appeals.

The defendant claims several defenses to plaintiff’s cause of action. One of them is a tax deed. We agree with the circuit judge that no valid title was obtained by virtue of this deed. The assessment which was the basis of the tax sale did not describe any land, and the description in the deed from the auditor general was fatally defective.

Another defense is that plaintiff is estopped from asserting title now because he allowed the sale to go on, and the defendant to make improvements on the land, without objection. We agree with the circuit judge that the plaintiff is not estopped because of any act of his, or want of action on his part. The record shows that, when defendant obtained its title to these lands, plaintiff was in Montana, and there is nothing to show that he had any knowledge of defendant’s negotiation for the lands until the defendant had obtained the deed. See Palmer v. Williams, 24 Mich. 328; Dickinson v. Wright, 56 Mich. 47; Fletcher v. Kalkaska Circuit Judge, 81 Mich. 186; Thirlby v. Rainbow, 93 Mich. 164; Dean v. Crall, 98 Mich. 591 (39 Am. St. Rep. 571).

Defendant also claims that as it has a deed of the lands in controversy from three of the heirs of Edward Petit, deceased, conveying to it all of the lands in controversy, and, after obtaining said deed, it has made improvements on said land, plaintiff cannot maintain this action; saying that, when division comes to be made between the plaintiff and the three heirs who joined in the deed, satisfaction can be made out of the remainder of the estate to the one who did not join. We agree with the circuit judge that this defense is not well taken, and that the conveyance from the other three heirs of Edward Petit does not bind the plaintiff.

Defendant also insists that plaintiff cannot maintain this action because the defendant now has the title which plaintiff, long before bringing this suit, had conveyed to Mr. Ballentine. An inspection of the record satisfies us that the trial judge was quite right in holding that the land in controversy was excepted from the terms of the deed.

The other defense interposed by the defendant is a deed made to it by the executors, of Edward Petit, deceased. The circuit judge held this defense to be good. Whether it is good or not will depend upon whether the executors were authorized to make the deed by the terms of the will of Edward Petit. This will has been construed in this court in the case of Farrand v. Petit, 84 Mich. 671, and a reference to that case will make it easy to understand “the question involved here, without making this opinion unduly long. It is the' claim of the plaintiff that the decree in the Farrand Case establishes beyond question the title to the land in controversy in him. It is the contention of the defendant that as it had its deed at the time the Farrand Case was commenced, and was in possession of the land, it was a necessary party to the proceeding, and, as it was not made a party, it is not bound by the decree. With our view of the case, we do not deem it necessary to determine'this question.

It is insisted by the defendant that, outside of clause 6 of the will, abundant power is conferred upon the executors to make the deed which was made to it; and it quotes the eighth clause of the will, which reads as follows:

“I hereby direct that my executors convey to purchasers, by proper deeds of conveyance, what is herein directed to be sold and converted into money, and to my said •children the several shares herein provided' for them, and to the children of my said children whatsoever is herein provided to be given to them.”

Defendant insists that this confers a general power to ■sell, sufficient to authorize the sale of all of the real estate. It is also insisted that a like power is conferred by the ninth clause of the will, which reads as follows:

“Ninth. I hereby constitute Marshall Petit, Henry Fish, and Bethuel C. Farrand' executors of my last will and testament. And to them, for the purpose of facilitating the sale, division, and distribution of my estate as herein provided, I hereby grant, convey, transfer, and set over, in trust for the uses and purposes herein expressed, all my property and estate, real and personal, of which I may be possessed, to be had and held by them in trust as aforesaid, and to their successors in said trust and their assigns forever. And they and the survivors of them in said trust, or their successors, are hereby authorized and empowered to sell and deed and convey, according to the true intent and meaning hereof, all and any of the property of my estate left hereby in their hands.” ■

To understand the eighth and ninth clauses of the will, it is necessary to know what the clauses earlier than the sixth and seventh contain. Th% first clause of the will provides for the payment of debts, funeral expenses, and other expenses. The second clause provides for the investment of $2,000 to aid in the establishment of an orphans’ home, or a home for the friendless, at Port Huron. The third clause gives to his daughter the use during her natural life of the brick house in which she lives, and 14 lots. The fourth clause gives to each of his three sons the use of one-fourth of the rest of his propei'ty, excepting his homestead place of 65 acres, and the use of the homestead place of 65 acres, except the house and lots given to the daughter, “or so much thereof as shall not have been sold by my executors as hereinafter provided for, until the said homestead shall be finally disposed of as hereinafter provided for [deducting certain advances], which said property shall be managed, distributed, paid over, and divided as follows: The personal property belonging to my estate, including all bonds, notes, mortgages, contracts for the sale of timber and land, as soon as the same can be converted into money by the ordinary process of conversion and collection, I direct shall be collected and convertedand provision was made for the investment and distribution of the property. The fifth clause provides:

“My real estate (not including my homestead of 65 acres), consisting of houses and lots and stores, I direct shall be kept until my son John Petit shall become 21 years of age; * * * and, when the said John Petit shall attain the age of 21 years, then I direct that the said houses and lots and stores shall be sold, and the proceeds divided,” etc. ■>

And then come the sixth and seventh clauses.

When these provisions are read consecutively, it is manifest that the power of sale conferred by clauses 8 and 9 could be exercised only at the times and for the purposes named in the preceding clauses, and the sale of any portion of the homestead (and that includes the land in controversy in this proceeding) could be made only at the time and for the purpose indicated in clause 6, except as that was modified afterwards by a codicil, which modification does not affect the land in controversy here. It is quite evident that, at the time the deed was taken, the defendant company did not rely upon the power conferred by clauses 8 and 9, for the deed contains the following:

“This sale and conveyance being made for the purpose of making a fund from the interest of which the taxes on said land may be paid, according to the provisions of the will of Edward Petit, testator.”

This reference could refer to no other provision of the will than clause 6, and was undoubtedly put into the deed to show that the deed was executed by virtue of the power contained in clause 6, to sell certain lots to create a fund, the interest of which should be used to pay the taxes and expenses of platting the land. We get back, then, to the question, Do the provisions of clause 6 authorize the making of this deed ? Before coming to the provisions of clause 6, provision had been made by the will that Louisa should have the use of the brick house and 14 lots of the homestead. Clause 6 provides that the sons shall have the use of the rest of the homestead until the same shall be otherwise disposed of, and then comes the following direction:

‘ ‘ I direct that, whenever the public good and the best interest of my estate require the same, that this portion of my estate shall be laid out and platted into-lots, blocks, and streets, and that so many of the lots shall be sold as may be necessary to make a fund, the interest of which will be sufficient to pay the taxes and expenses of platting and taking care of the same, and that the remainder thereof shall be kept by my executors for 20 years after my decease, when the same shall be divided and distributed as follows, viz.,” etc.

This land is a part of the city of Port Huron. It is evident that, when the provision was put into the will, it was expected the time would come when it would be necessary to run public streets through these lands, and that they should be platted, and that taxes would then be higher than they had been before, and that there would be expense incurred in platting the land. When the deed to the defendant was made, the land conveyed to it had not been platted, and, so far as the record discloses, is not yet platted. Until this was done, we do not see how the executors were clothed with power to make the deed in question.

Another aspect of the case was reached, discussed, and decided in the case of Farrand v. Petit, supra. It was held — as we think, properly — that the effect of the provisions contained in the sixth clause was to restrain the alienation of property contrary to the provisions of 2 How. Stat. §§ 5530, 5531; but it is claimed that the portion of the sixth clause of the will which attempted to restrain alienation contrary to the provisions of our statute may be eliminated from the will, and the land still be subject to sale by the executors under the power of sale. This view was accepted by the learned judge, basing his opinion upon 2 How. Stat. § 5574. As the very purpose of the power of sale conferred by the sixth clause was to create a fund from the interest of which the taxes might be paid upon the land, so as to restrain its sale for 20 years, and enable the executors to carry into effect the unlawful provisions of the will, we do not think the conclusion of the trial judge is tenable.

Taking the record as it now stands, we think the judge erred in rendering judgment for defendant.

Judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Long, C. J. Grant, J.

license: Public Domain

text:
    ANDREWS v. TAMARACK MINING CO.
    1. Master and Servant — Action for Death of Employ® — Evidence — Admissions of Agent — Testimony at Coroner’s Inquest.
    In an action against a mining corporation for the death of a minej killed by falling walls, the testimony of the mining captain, who had charge of all the underground work, given at the coroner’s inquest over the body of the deceased, that he had ordered precautions to be taken to avoid accident, because he did not consider the place safe, is inadmissible, where it is offered, not for purposes of impeachment, but to prove the substantive fact that defendant, through its agent, had knowledge of the danger.
    2. Same — Scope of Authority.
    The fact that the captain was, with respect to the underground mining operations, the alter ego of defendant, would not make his admissions, not within the scope of his agency, binding upon it.
    3. Same — Dangerous Place — Failure to Notify Employ®.
    A mining corporation is liable for the death of a miner killed by falling rock in the course of his employment as a “hitch cutter,” where it put him at work in an excavation wherein the walls were unsupported by stull timbers, notwithstanding there was room for two or three sets of such supports as they are commonly placed, without informing him of the fact, which it well knew, but of which he was ignorant, that the walls of the excavation had been left unsupported since the preceding day, and that the character of the walls was such that those which appeared perfectly safe were liable, if left for that length of time without support, to break suddenly and fall.

      4. Same — Assumption of Risk —Evidence—Question for Jury.
    That the deceased had knowledge of the danger equal to that possessed by his employer was not conclusively established by evidence that the “hitch cutters” were directed by the defendant to examine each place where they were about to go to work, and to satisfy themselves, before beginning the work, that the place was safe; that they were frequently cautioned as to this duty, and were warned against working, under any circumstances, beneath overhanging ground, without assuring themselves that it was safe; that they were allowed to take all the time and have all the assistance necessary to make it safe, if they considered it dangerous; and that they under, stood that this was one of their particular duties, and that no one would go ahead of them to perform it. Grant and Hooker, JJ., dissenting.
    5. Same — Instructions.
    The court should, however, have directed the attention of the jury to such facts, in connection with his charge as to the master’s duty to furnish the servant with a safe place to work.
    Error to Houghton; Hubbell, J.
    Submitted April 16, 1897.
    Decided September 23, 1897.
    Case by Grace E. Andrews, administratrix of the estate of Nicholas J. Andrews, deceased, against the Tamarack Mining Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      A. R. Gray, for appellant.

      M. M. Riley (Sylvester, Scheiber, Riley & Orth, of counsel), for appellee.
   Long, C. J.

Plaintiff’s intestate was a miner in the employ of the defendant, a corporation owning and operating a copper, mine in the Upper Peninsula. The hanging walls of the mine were of such a character that they would crack suddenly and fall away if left exposed to the air even for a short time; so that, to safely carry on the work, it became necessary to place batteries of stull timbers, extending from the foot to the hanging wall, about eight feet apart, each battery consisting of three timbers. About 11 o’clock in the forenoon of the day before plaintiff’s intestate, Nicholas J. Andrews, was killed, one Thomas Maslin, the underground captain of defendant’s mine (having charge of all the underground work),, while on his daily tour of inspection through the mine, ordered two of the miners, named Weisonen and Kempanen, to drill three holes in the hanging wall and blast it down, so that a battery of timbers might be put in there, as soon as they had finished the work in which they were engaged. They did not finish the work they were doing that night. On quitting work in the evening, they informed the men working on the night shift of the orders given by Captain Maslin, and these men commenced to drill three holes for the purpose of blasting down the overhanging rock. They completed two holes, and had commenced on the third, before leaving their work.

Plaintiff’s intestate had been in the employ of the defendant about two weeks at this time, as a hitch cutter. He had previously worked in this same mine, and knew the character of its formation, and the duties of a hitch cutter, which were to cut holes in the foot wall for the timbers to set in to support the hanging wall. The holes or hitches were cut to prevent the lower ends of the timbers, which extended obliquely from the foot to the hanging wall, from slipping. On the morning when Andrews was killed, he and his partner (these hitch cutters work in couples), one Trevarrow, were ordered into that level to cut hitches for the timbers. The miners were drilling the third hole in the overhanging wall when Andrews and his partner arrived. The miners, before commencing their work that, morning, had tried the ground or rock •above, using two iron bars at a time for that purpose, but could not move it. The timber gang of four men was also there, having gone with Andrews and his partner, and they spent from an hour to an hour and a half taking •down some loose rock; and they, too, tried this particular piece of ground, using three bars at a time, but could make no impression on it. Andrews and his partner stood all this time looking on, in full view of and observing the work, the .place being lighted so that the rock and the working could be seen. After the loose rock had been barred down and the particular piece of rock had been tried, all seemed to consider the place safe; and Andrews and his partner, without making any further or other examination, began this work of cutting hitches in the foot wall. They had been at work about an hour, when a sudden crack was heard, and the piece of rock referred to suddenly fell, striking Andrews and killing -him almost immediately, and somewhat injuring his partner. It appears that this timbering was not done to protect vein matter, but to protect from the rock after the vein is removed.

The first count of the declaration, after charging the duty of the defendant, alleges, in substance, that the defendant negligently failed to keep and maintain the said drifts, crosscuts, stopes, and chambers in and about its said mine in reasonably safe condition, etc., and negligently failed to properly timber the said drifts, etc., so as to secure and prevent any pieces that might become loosened in the roof of such drifts, stopes, crosscuts, and chambers from falling, etc., and negligently failed, after it had come to its knowledge that such stopes, etc., had become unsafe, to warn the said Andrews and others of its said employés working therein of the dangerous condition thereof, and that, by reason of the negligence and failure-on the part of said defendant to discharge .such duties in the premises as aforesaid, the said Andrews, while in the course of his employment, etc.; was killed, etc.

On the trial the plaintiff called the coroner of the county, who testified that Captain Maslin was sworn .before him as a witness in the inquest held upon the body of Nicholas J. Andrews. The record returned here states what then took place, as follows:

“Counsel for plaintiff here attempted to prove by this witness the testimony of Captain Maslin given befoi’e him as coroner upon the inquest, for the purpose of proving an admission of Captain Maslin adverse to the interests of the defendant. Counsel for defendant objected to this as immaterial and incompetent; that it could only be proper for one purpose, viz., to impeach Captain Maslin, who had not yet been on the stand. Counsel for plaintiff announced that he did not intend to impeach Captain Maslin at all.
The Court: The court holds that it is not necessary at all, in order to show how this accident occurred, for Captain Maslin to be called; for the plaintiff can show by admissions of the defendant just how it occurred, and put the defense upon its showing that it occurred some other way. I think it is clearly admissible, — the proceedings at the coroner’s inquest, — to determine the cause of this man’s death, and I think that whatever Captain Maslin may have sworn to there is admissible here. I don’t think this witness can read that over, and say that it is substantially what he swore to, but whatever he said must be produced.”

This deposition was read in evidence, and is as follows:

“I am underground captain of the Tamarack mine. I gave the miners Weisonen and Kempanen express orders yesterday to put three holes in the ground, and to blast it down, as I did not .consider it safe. These men, for reasons of their own, did not do so. Had they obeyed my orders, the accident would not have happened.”

The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Captain Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gestee. It has many times been held by this court that the declara-tions of an agent as to a past transaction are inadmissible to bind the principal. Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mobley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91; Stebbins v. Township of Keene, 55 Mich. 552; Wormsdorf v. Railway Co., 75 Mich. 472 (13 Am. St. Rep. 453). It is true that, where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestee.

But counsel for plaintiff contend that Captain Maslin was the alter ego of defendant, and that his agency continued at the time his testimony was given before the coroner; therefore, whatever Maslin said in reference to the occurrence at the mine would be binding upon the defendant, though said long after the occurrence. If he can be said to be the alter ego, he was not clothed with authority to make admissions. It is not like the case where the agent is clothed with such power, as that of baggagemaster of a railroad, whose duty it is to deliver the baggage of passengers, and to account for the same if missing, providing inquiries are made. Declarations so made by such agent are within the scope of his agency, and, if made while the agency continues, are admissible against his principal. Morse v. Railroad Co., 6 Gray, 450.

But counsel contend that the deposition could not have injuriously affected the defendant, as Captain Maslin was subsequently called as a witness on the trial, and testified substantially as he did before the coroner. We do not find anything in the testimony of Captain Maslin to sustain this contention. On the other hand, he testified that on the day before the accident he was in the mine, and ordered the men to blast down the ground in the hanging, and he adds:

“I did not find a particle of danger in that ground, nor did I see anything to lead me to believe it was dangerous. My object in taking it down was to put timbers in there.”

His attention was called to the testimony taken before the coroner, as written down by the coroner, and he stated, “Well, my meaning was not as it is construed in that paper;” and he states positively that he did not testify as the coroner had written it down. On cross-examination he stated that he did not warn Andrews and his partner not to go there until the overhanging rock was blasted down; that it was not necessary to do that, as they were warned every day. He was asked:

“ Now, when you knew that it was unsafe, and you concluded that it was not safe to mine further without calling their attention to it, without having the hanging wall taken down,why didn’t you warn them then?
“A. I didn’t know it was unsafe then.
“Q. When you concluded it wouldn’t be well to mine further without taking that hanging down, — this portion you speak of, — why didn’t you warn the men ?
“A. Because it was not necessary; it was not dangerous.”

From this testimony it is apparent that Captain Maslin did not testify upon the trial as contended by counsel, but that he did state positively and unequivocally that he did not regard the place as dangerous, and that the error in permitting the coroner to read the testimony taken before him was not cured.

But counsel for plaintiff contend that the place was made dangerous by the excavation’s being worked too far under, and left too long a time, without putting in the sets of stull timbers, as was usual; that this was done under the direction of Captain Maslin, who knew that if too great excavation was made, and the timbers not at once placed, the hanging walls, being left exposed, would crumble or break off and fall; that he, knowing this, sent the men in without warning them of the dangerous condition. We think there is some evidence to sustain this contention. Mr. Parnall, the superintendent of the mine, testified that ofttimes when the overhanging wall appeared safe it would suddenly break off and fall, and this within the space of a few minutes. It was also shown that, when the excavation had been carried forward, the stull timbers were put in every seven or eight feet; that is, three timbers, near together, set in the hitches cut in the foot wall, and reaching to the overhanging wall. There is some evidence that, on the morning in question, the excavation had been carried so far under that there was room for two and perhaps three sets of stull timbers'. While the evidence is not very clear upon this question, we are not able to say that there is no evidence of that fact. If the place was unsafe without the stalls being placed every seven or eight feet, it was the duty of the defendant to so place them, as it was its duty to furnish Andrews a safe place to work. These questions were for the determination of the jury. But at the same time the jury should have been instructed that if Andrews knew the condition of the overhanging walls, — that they were liable to crack off if left for any length of time,, and that they had been left in that condition from the previous day without sufficient stalls being placed there to protect the walls, — and yet went to work with full knowledge of such danger, the plaintiff could not recover, in the absence of any promise of the company to put it in a safe condition.

Under the method adopted by the defendant company, these hitch cutters were required in all cases to examine all places where they might go to work, and see and satisfy themselves that such places were safe, before beginning their work, and they were frequently cautioned and warned as to this duty, and that they must never, under any circumstances, work under overhanging ground without first examining it, and being satisfied that it was all right, and, if found dangerous, to make or have it made safe; and they were allowed to take all the time and-have ail the assistance necessary for that purpose, and they understood and knew that no one would go ahead of them for that purpose, but that that was one of their particular duties. And the court should have directed the attention of the jury to those facts.

For the errors pointed out, the judgment must be reversed, and a new trial ordered.

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

Grant, J.

I concur in the reversal of this case, and in the opinion of my Brother, the Chief Justice, except in so far as he holds that there was any evidence upon which to base a verdict against the defendant. The following facts are conclusively established by the evidence:

(1) It has been for some years the universal practice and policy of the defendant to employ only experienced miners as hitch cutters, because it is important that men so employed should be able to detei’mine for themselves the safety of the place.
(2) The deceased and Trevarrow, his companion, were ■competent and experienced miners.
(3) It was the duty of all hitch cutters to examine the surroundings before proceeding to work, and, if they saw any rock which in their judgment was dangerous, to remove it before proceeding to cut the hitches, and, if they were unable to do so, to procure assistance.
(4) The deceased and Trevarrow went to work after they had made an examination, and had determined for themselves that the situation was safe.
(5) The miners who were engaged in drilling had examined it before going to' work that morning, and tried to get the rock down with two iron bars, but could not move it. Four men, comprising the timber gang, were also there; and they used three iron bars in attempting to remove the rock, but could make no impression upon it.
(6) During the time that these examinations and attempts to take down the rock were being made, the deceased and Trevarrow were close by, looking on. It thus appears that eight experienced miners had examined the situation and pronounced it safe, and in that belief had gone to work.
(7) These men were all experienced and competent miners, and familiar with the character of the rock in the defendant’s mine. They were as competent to judge of the danger as was Captain Maslin, who was not present when the examination was made.

The situation, in brief, is this: These men were authorized and were expected to judge for themselves as to the safety of the place. They were competent to do so. They had been cautioned against working in dangerous places. They placed no reliance upon the judgment of any other employé, officer or man, but used their own judgment. They were at liberty to withdraw if they considered the place dangerous. I am not aware of any decision in this court or any other which holds the master liable under such a state of facts. It is repugnant to common justice. Captain Maslin had not instructed them to go to work in this place if they considered it dangerous. He had instructed the drillers the day before to drill in three holes to blast down this hanging rock. He had also instructed the hitch cutters and timbermen to perform the customary work in such places. The drillers were engaged in drilling these holes when the rock fell. The master in this case had furnished the proper tools and appliances, competent and experienced men, and had instructed them- to exercise their own judgment as to the safety of the place, and had authorized them, if in their judgment the place was unsafe, hot to go to work, but to take the necessary steps to render the place safe. In so doing the master had done all that the law or humanity requires. The rule as to the duty of the master to furnish a safe place has no application here. If Captain Maslin had been present, and instructed them to go to work not-. withstanding their apprehension of danger, and had assured them that the place was safe, a different question would be presented. If it be assumed that Captain Maslin the day before instructed the drillers “to put three holes in the ground and blast it down, as he did not consider it safe,” this could not be construed, by any possible rule of law, into an instruction and direction that any employé of defendant should go to work in the dangerous place. I deem it unnecessary to cite authorities in support of the proposition that plaintiff had made no case.

Assuming that there is a case for the jury, there is one error to which the Chief Justice has not referred, and that is the intemperate language used by the attorney for the plaintiff in his argument to the jury. He called Captain Maslin “a tyrant, for whom he had less respect than he would have for a barking whelp in the street; that Tom Maslin, with his little soul, thought more of the cost of sending those men to put timbers in there than he did of the human lives that were under his control; and that ten million souls of men like that could get inside a mustard seed and never lack for room.” This language was not rebuked by the court. But this is not all. After the first attack of the attorney upon Captain Maslin, the record shows the following:

11 Mr. Riley: Why do I say so? Because, sir, you, on your solemn oath, before your God, have told me, what ? That you dare not, in the presence of high Heaven, raise your hand and return a fair and impartial verdict in this case. Why ?
“Mr. Gray: I except to that, your honor.
“Mr. Riley: Why did you swear so? Because, forsooth, your sister-in-law, employed by this Tamarack Mining Company, if you did return a verdict as your heart and. your conscience should direct, would discharge her from their employ.
“The Court: Mr. Riley, that is not a proper remark to the jury. You have not exhausted your challenges to the jury. It was your duty to take him off.
“A Juror: Your honor, I would rather have Mr. Riley leave that out altogether.
The Court: It is not called for. It is unprofessional. That juror was accepted by you as satisfactory.
‘Mr. Gray: He was excused, and then Mr. Riley insisted upon his coming back into the box.
“Mr. Riley: All that is admitted, but the facts remain; but I shall not discuss them further.”

There is nothing in this record to justify the use of such language, and it was properly condemned by the trial judge as unprofessional. What effect it had upon the jury, we cannot tell; but something induced them to render an extravagant verdict for the plaintiff, of over $12,000, the interest of which would alone be more than the annual earnings of the deceased, assuming that he worked every working day in the year. His pay was $2 per day, and the interest on the amount of the verdict would exceed $2.50 per day, leaving the principal untouched. This would result in giving his family more pecuniary benefit than they could possibly receive if he were living. Such conduct in the trial of lawsuits has been so often condemned by the courts that it seems almost incredible that attorneys of reputable standing should still indulge in the practice.

Hooker, J., concurred with Grant, J.


author: Hooker, J.

text:
    RAYMOND v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF MECOSTA COUNTY.
    1. Fire Insurance — Renewal Application — Representations as to Incumbrances — Fault of Agent — Evidence.
    In an application for additional insurance, the answer to the question, “ What incumbrance is there upon the property?” was recorded, “None.” There was in fact a levy of ?850, which existed at the time of filing the original application, and which was therein designated as a mortgage. It was claimed by the insured, in an action upon the policy, that both applications were written up for his signature by the company’s secretary, who had the old application before him when he made out the new one, and that the answer ‘ ‘ None ” was not written in the new application when it was presented for his signature. Held, that the first application was properly admitted in evidence in support of the contention that the company knew of the incumbrance.
    2. Same — Identification of Incumbrance Improperly Described in Earlier Application.
    It was also proper to permit the insured to establish the identity of the levy with the incumbrance of which the company was claimed to have had knowledge by showing that the secretary was informed of ;blie true character of the incumbrance designated by him as a “mortgage ” at the time of filing the first application.
    3. Same — Protection of Property — Due Diligence.
    In an action upon a fire-insurance policy, it appeared that the property insured was destroyed by forest fires; that the tenant who was occupying the place, upon discovering the approach of the fire, plowed several furrows around the buildings; that he then loaded his household effects upon a wagon, and drove them to a place of safety, leaving his wife in charge of them; that, while he was engaged in fighting the fire, he was informed that his wife was ill, and he thereupon took her to a village a few miles distant; that, when he left, there were eight or ten people defending the«property; that he brought two men from the village, and started back to the farmhouse, but could not get there readily, because of the flames^ Held, that the evidence did not conclusively show a lack of diligence in protecting the property, sufficient to avoid the policy under a provision requiring the insured to show, as a condition to a recovery thereon, that ‘ ‘ due diligence was used to save the property exposed.”
    4. Same — Vacation of Premises — Temporary Absence.
    The policy sued upon contained the following provision: “Any member vacating insured premises, and not placing some one else in charge of the same, shall bear his own risk for such time as such premises are vacant. * * * Temporary absence, like on a visit, does not create vacant property.” Held, that there was no'vacation of the premises in question, within the meaning of the policy.
    ■5. Same — Mutual Companies — By-Laws — Provision for Arbitration — Statutes.
    A by-law of a mutual fire insurance company, to which each applicant’s attention is directed and his written assent obtained, which provides that all differences between the company and its members which cannot be settled shall be submitted to arbitrators, the agreement of a majority of whom shall determine the matter submitted, does not contravene section 4258, 8 How. Stat., giving to members the right to maintain suits at law against such corporations for “accrued” claims, since, by the terms of the contract, no claims accrue, in case of differences, until a sum is awarded by arbitrators.
    8. Same — Courts—Ousting of Jurisdiction.
    Such by-law is not invalid as an attempt to oust the courts of jurisdiction,
    7. Arbitrators — Re view, of Proceedings.
    Errors of arbitrators, adjusting a claim, in excluding evidence that would have been admissible in a court of law, are not subject to correction by an appellate court reviewing an action at law upon the same claim.
    Error to Mecosta; Palmer, J.
    Submitted April 30, 1897.
    Decided September 23, 1897.

      Assumpsit by David L. Raymond against the Farmers’ Mutual Fire Insurance Company of Mecosta county upon a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frank Dumon, for appellant.

      M. Brown, for appellee.
   Hooker, J.

The plaintiff is a resident of Pennsylvania, and the owner of a farm in Mecosta county, Mich., which he purchased of Dr. "Whitney, who thereafter acted as his agent in relation to the property. At the time of his purchase, the buildings upon the farm were insured in the defendant company, a mutual fire insurance company, organized and doing business under the laws of this State; and, although we do not readily discover the statement in the record, it seemed to be admitted upon the hearing, as it is asserted in plaintiff’s brief, that he (the plaintiff) succeeded to the ownership of this insurance. In July, 1894, additional insurance was solicited by Whitney for the plaintiff, and the secretary prepared an application, which was sent to the plaintiff by Whitney, who signed and returned it, and the policy was issued. The property was afterwards destroyed by fire, and after certain proceedings by arbitrators, which resulted in an award against the plaintiff, this action was brought, and a verdict was rendered for the plaintiff. The defendant appealed, alleging several errors. Among other things, it was claimed by the defendant, upon the trial, that the plaintiff was guilty of misrepresentation regarding, and concealment of, a levy upon the premises.

The application contained the following question, viz.: ‘What incumbrance is there upon the foregoing-described property ? ” Answer: ‘ ‘ None. ” It was shown that there was at the time a valid execution levy upon said place for $850, and the defendant contended that there was misrepresentation in the application as stated. This application was drawn by the defendant’s secretary, and sent by Whitney to the plaintiff, with directions to sign it. The plaintiff testified that the answer “None” was not in the instrument when he signed it. Whitney testified that he called upon the secretary, on behalf of the plaintiff, to obtain additional insurance, and was informed that a new policy would be necessary, and he (the secretary) wrote it without asking any questions, having the former application at hand at the time; that he said nothing about the incumbrance, but handed the application to the witness when finished, with instructions where to have the plaintiff sign; and witness thereupon sent the paper to the plaintiff, without reading it. He also testified that he made the former application, which was written by the same secretary of the company, and that he informed him that there was a levy of $850 on the premises. This application was introduced, and contained a statement that there was an $850 mortgage on the property. Error is alleged upon the reception of this document and the testimony explanatory thereof.

The first application was competent to show what information the secretary had when he drew the second application, and we think it was competent to show the statement actually made in relation to the levy, to show that, while mentioned in the application as a mortgage, it was fully explained in its true light to the secretary at the time. It may not have been very important, but it was proper as explanatory of the transaction, and as showing that there was but one incumbrance, which was the levy, and not a mortgage. All of this testimony bore upon the question whether the secretary had knowledge of the levy at the time he wrote the application. See cases cited in brief, viz.: Beebe v. Insurance Co., 93 Mich. 514 (32 Am. St. Rep. 519); Ahlberg v. Insurance Co., 94 Mich. 259; Van Houten v. Insurance Co., 110 Mich. 682; Miotke v. Insurance Co., 113 Mich. 166.

Defendant also urges that the evidence conclusively showed a breach of the following conditions of the policy, viz.: “No member can claim more than shall appear to the directors to have been lost, and he shall show that due diligence was used to save the property exposed;” and “Any member vacating insured premises, and not placing some one else in charge of the same, shall bear his own risk for such time as such premises are vacant; and in case of permanent vacation, or for a period exceeding 30 days, the company may cancel said policy. * * * Temporary absence, like on a visit, does not create vacant property.” The .place was occupied by a tenant named Ward. The fire started in the woods, and it would seem that forest fires were prevalent. Ward, on discovering* its approach, plowed furrows around the buildings, in several places. He then loaded his household effects upon a wagon, with a view to saving what he could. Soon after, neighbors arrived, and an attempt was made to save the property, the wagon being driven down in the lane, by a spring. The colts and cows were driven down ahead of the wagon, and Ward’s wife, who was enceinte, watched them there. While engaged in fighting fire, a neighbor named Sample came up, and told Ward that his wife could not stand it much longer, and that he had better take her and his things to a place of safety, which hp did. It was very smoky. He drove to a place which was burned over, and left his things there, with a view to having his wife take care of them; but she was sick, and he got a buggy, and took her to Chippewa Lake, a few miles distant, leaving his things where they were. Then he took two men, and started back to the place, but could not get there readily, by reason of the fire. Whitney, the agent, was present at the farm for a time, but left before Ward did. Counsel insists that the letter of the contract imposed the risk upon the plaintiff while the place was vacant, “whether caused by sickness or even death of Ward’s wife. ” We think this was not vacating the place, or leaving it vacant, under the terms of the policy, and that the judge committed no error in saying so to the jury. When Ward left, there were eight or ten people there, [defending the property against fire. Counsel sought to show by the acts and conversation of these people that they were not diligent in protecting the property. The court properly excluded this testimony. He left the question of diligence to the jury, under quite as favorable instructions as the defendant was entitled to.

The further point is made that the arbitration had between the parties should be held conclusive against the plaintiff. This is based upon a by-law which provides:

“Any and all differences between this company and any of its members which cannot be settled, arising from the adjustment of losses or auditing of claims* shall be submitted to three arbitrators. * * * On the day of hearing, each party shall state his cáse in -writing to the arbitrators, and furnish such additional information as shall be required by the arbitrators. They shall then take the case under consideration, apart by themselves, and determine and decide what is equitable and right between the parties, under the charter and by-laws of this company and the laws of this State. Their decision shall be communicated in writing, over the signature of all three of them, to the parties in controversy, each to be furnished with a copy. The conclusion or agreement of a majority of the arbitrators shall determine the matter before them. Their decision shall be filed in the office of the secretary of the company, together with the statement of the parties and other information furnished by them. When such decision or finding of the arbitrators has been complied with, it shall be a final settlement of the controversy, the compliance to be noted or receipted on the written document or decision on file in the secretary’s office. After the case is thus settled, neither party shall have any right of action at law or in equity on account of the matter thus submitted to arbitrators; and if either party shall refuse to arbitrate the difference between them, or fail to comply with the decision of the arbitrators after the matter has been submitted to them, and goes to law for his claim, he shall pay the whole cost of said suit, and the excess of the finding or judgment of the court over the claim of this company. The board of directors shall make this by-law a condition of all applications for and policies of insurance, and other contracts entered into by this company.”

The articles, or charter, as it is called, contain a provision which is said to authorize the by-law quoted. It is as follows:

“ The board of directors shall provide for settlement by arbitration of all differences between the company and its members, making it a condition of membership and insurance.”

The application contained the following question and answer:

“Will you submit all unadjustable differences between yourself and this company to arbitrators, as provided for in section 41 of the by-laws of said company, and abide by their ctecision ?
“A. Yes.”

The learned circuit judge was of the opinion that the law under which this company was organized does not authorize this by-law, and that the by-law is in conflict with rights which 3 How. Stat. § 4258, gives to members. That section provides that—

“Suits at law may be maintained by any corporation formed under this act against any of its members for any cause relating to the business of such corporation; also, suit at law may be prosecuted and maintained by any member against such corporation for claims which may have accrued, if payments are withheld more than 60 days after such claims shall have become due.”

Counsel also contends that the contract is one which would “oust the jurisdiction of the courts,” and is therefore void, citing a number of cases in support of the proposition.

Unless we are to distinguish between policies of mutual insurance companies, indemnifying against loss by fire, and mutual benefit certificates, providing for sick and death benefits, we must consider the last question settled by our former decisions. In Van Poucke v. Netherland, etc., Society, 63 Mich. 378, it was held that a condition requiring a doctor’s certificate, and providing that the determination of an investigating committee should be conclusive of the member’s right to a benefit, was valid and binding. This was followed by the case of Canfield v. Knights of Maccabees, 87 Mich. 626 (24 Am. St. Rep. 186), which was a case of death. Hembeau v. Knights of Maccabees, 101 Mich. 161 (45 Am. St. Rep. 400), was similar, as also was Fillmore v. Knights of Maccabees, 103 Mich. 437. The language of Mr. Justice Montgomery in Hembeau v. Knights of Maccabees seems to accurately describe the situation here. He said:

“ This is not a case of an attempted exclusion of remedy by the legislature, but a case where the parties have agreed that only on certain terms and under certain conditions shall a member be entitled to receive any benefits, or the beneficiary named be entitled to receive any sum in case of the death of the member.”

We cannot distinguish between this case and one that arises upon a certificate of a mutual benefit society insuring life. The language used in the cases cited seems equally applicable to this. Nor can we say consistently that the by-law is inconsistent with section 4258 of the statute, which only mentions claims that have become due. By the terms of the contract, this claim has not become due, and could not, unless a sum should be awarded by the arbitrators.

The record shows that' the arbitrators took what the courts would consider an erroneous view of the legal rights of the parties, and there is some reason for believing that testimony admissible upon a trial in a court of law was excluded; but we cannot correct errors of this sort on this record, — if they can be corrected in any proceeding, which we do not mean to imply. Weggner v. Greenstine, ante, 310; Morse, Arb. & Award, chap. 10.

While we feel constrained to reverse the judgment upon the latter point,'we have discussed the case upon all of the points raised, that the defendant may understand the legal effect of its policy, and correct any wrong which may have arisen from a misapprehension of the legal rights of the parties if it is disposed to do so.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    DE LAPP v. BECKWITH.
    Highways — Increasing Width — Appropriation of Adjacent Land.
    3 How. Stat. § 1365, providing that when any public highway “which passes along the bank” of any lake, river, or other watercourse, and which is not included in the limits of a city or village, shall, by the washing away of the hank, or from any other cause, become reduced to a width of less than 50 feet, the highway commissioner shall lay out such highway upon adjacent land to that width, does not apply to a highway which has become reduced in width by the washing away of the bank of a ditch or other artificial watercourse laid in the highway.
    Error to Berrien; Coolidge, J.
    Submitted June 9, 189?.
    Decided September 23, 1897.
    Trespass quare clausum fregit by Robert B. De Lapp against John T. Beckwith. From a judgment for defendant, plaintiff brings error.
    Reversed.

      James O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Montgomery, J.

The plaintiff is the owner of 20 acres of land in the township of Weesaw, Berrien county. Defendant is the highway commissioner of the township. Some 10 years prior to the commencement of this action, a ditch was constructed by the proper authorities in the highway, and south of the traveled portion thereof, which ditch, as originally constructed, was about 10 feet in width and about 14 feet deep. By reason of the washing- and falling away of the banks of the ditch, the highway south of the plaintiff’s land was reduced in some places to 16 or 18 feet in width. Defendant, assuming to proceed under Act No. 243, Pub. Acts 1881, as amended by Act No. 54, Pub. Acts 1885, being sections 1365 and 1366 of 3 How. Stat., proceeded to widen the highway at this point, and so as to include portions of plaintiff’s land; and, the plaintiff having failed to remove his fence back on notice, the defendant proceeded to do so. This action of trespass is brought to recover damages for this act of defendant. The first question is whether the facts show this case to fall within the terms of the act in question. The act provides that:

“When any public highway which passes along the bank,of any lake, river, or other watercourse, and which is not included in the limits of a city or of a platted village, whether incorporated or unincorporated, shall, by the falling or washing away of the bank, or from any other cause, become reduced to a width of less than 50 feet, it shall lie the duty of the commissioner, acting upon his own knowledge, or on being notified thereof, * * * to proceed within 10 days and examine the same, and, if he finds it to be less than 50 feet wide, he shall forthwith lay out, open, and work such highway in and upon the adjacent land to the width of 50 feet.”

It is contended by the plaintiff that the act relates to natural watercourses; that the only waters mentioned in the act are natural waters, and the watercourse referred to by the general language “other watercourse” is a watercourse of the same kind; citing Suth. Stat. Const. § 268; Brooks v. Cook, 44 Mich. 619 (38 Am. Rep. 228), and other cases. This rule is well recognized; but, as ditches have been often referred to in our decisions as watercourses (see Freeman v. Weeks, 45 Mich. 335), it may be said that watercourses which are liable by the washing away of the banks to result in damage to the highway are within the terms of the act. We should be strongly inclined to adopt this view if the highway in question came within the terms of the act, but it does not. The highway defined in the act is a highway “passing along the hank of any lake, river, or other watercourse.” It is not a highway in which a ditch or other artificial watercourse may be laid. It cannot be considered that the term “highway,” as used in the act, refers to the traveled or wrought portion of the highway, as the statute provides that the highway shall not be reduced below 50 feet, while it is well known that the ordinary country highway has no such width of road fitted for travel.

We must hold that the statute in question did not confer the authority to do the act attempted, and it follows that the judgment must be reversed and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    COLE v. BROWN.
    1. Fraudulent Conveyances — Rights of Judgment Creditor-Inclusion in Judgment of Items of Subsequent Indebtedness.
    The rights of the complainant in a bill in aid of execution are not to be determined upon the basis that he is a subsequent creditor merely because certain items of the indebtedness upon which he had judgment were incurred subsequent to the conveyance attacked, but, if such conveyance is shown to have been voluntary, it may be held valid as to such subsequent indebtedness, and void as to the 'balance of the judgment.
    2. Same — Voluntary Conveyances — Intent to Defraud — Existing and Subsequent Creditors. -
    While no fraudulent intent is necessary to set aside a voluntary conveyance as to existing creditors, it must be established in order to set it aside as to subsequent creditors.
    3. Same.
    Whether an actual intent to defraud existing creditors entitles a subsequent creditor to have- a conveyance by the debtor set aside, — queere.
    Appeal from Oakland; Smith, J.
    Submitted June 11, 1897.
    Decided September 23, 1897.

      Bill by Christopher Cole, administrator of the estate of Lnman Beebe, deceased, against Henry Brown, Caroline Brown, Frank Brown, Alice Oxford, and -Elizabeth Denison, in aid of execution. From the decree rendered, defendant Caroline Brown appeals.
    Modified.
    On January 9,1895, complainant recovered a judgment at law against the deféndant Henry Brown for $918.08 and costs. This judgment was rendered upon five promissory notes, — one dated October 1, 1889, for $100; the others dated, respectively, December 21, 1892, January 21 and 24, and March 1, 1893. Mr. Brown had been a farmer, and in March, 1892, owned the several pieces of farm lands, and the land situated in the village of Oxford, described in the bill of complaint. On March 8, 1892, he deeded this village property, called the “Oxford Property,” to his wife, the consideration expressed in the deed being $4,500, which deed was recorded the following September. At the time this deed was made, it was incumbered by a mortgage, upon which there was then due $900. His principal farm was mortgaged for $3,100, which was about its value. On April 8, 1893, he. deeded a part of his other real estate to his son Frank, and the remainder to defendant Denison. Being unable to collect the judgment, complainant, after taking the requisite steps, filed this bill to set aside these conveyances, as void as to creditors. He called for an answer under oath, in which the defendants Brown and Denison admit the transfer, and allege a valid consideration, and deny fraud. Mrs. Axford was- charged with having certain notes in her possession in trust for Henry Brown. She answered, denying the allegation. The cause was heard upon pleadings and proofs taken in open court, and decree entered in favor of defendants Axford and Denison, and against the defendants Brown, holding that the transfers were voluntary, without consideration, and void as to creditors. Defendant Caroline Brown alone appeals. The further facts, so far as essential, will be stated in connection with the points discussed.

      George O. Kinsman and Frank E. Jenkins, for complainant.

      A. & 8. H. Perry, for appellant.
   Grant, J.

(after stating the facts). It is urged that complainant’s rights must be determined upon the basis that he is a subsequent creditor, because four of the items of indebtedness upon which the judgment was rendered were incurred after the deed to Mrs. Brown was made and recorded. In Maine and Illinois it is so held. Reed v. Woodman, 4 Greenl. 400; Usher v. Hazeltine, 5 Greenl. 471 (17 Am. Dec. 253); Moritz v. Hoffman, 35 Ill. 558. The contrary rule prevails in Pennsylvania, and it is there held that the conveyance is void as to that part of the judgment incurred before the conveyance, and valid as to the part incurred subsequently. Henderson v. Henderson, 133 Pa. St. 399 (19 Am. St. Rep. 650). We think the latter rule the more just and equitable, and therefore adopt it.

The court found, and incorporated the finding in its decree, that the deeds from Brown to his wife and son—

“Were made for the express purpose of avoiding the payment of the said Henry Brown’s debts, and for the purpose of defrauding his, the said Henry Brown’s, creditors, and that his wife, the said defendant Caroline Brown, and his son, the said defendant Frank Brown, were possessed of full knowledge of what these deeds were made for, and that the court did not believe the testimony of the defendants as to what the consideration was, passing from Caroline Brown to Henry Brown, and from Frank Brown to Henry Brown, for said deeds, and that the income from the rent of the Oxford property received by Mrs. Brown was more than the amount of the mortgage thereon at the date of the deed, and which said mortgage was paid out of the rents received therefrom.”

The decree ordered a sale of the property, and ordered that $1,500, the amount of the homestead exemption, be paid from the proceeds of the sale to Mr. Brown.

We entirely agree with the court as to the deed made by Mr. Brown to his son. There was direct and positive evidence to show that this deed was made with the intent to defraud his creditors, among whom were Mr. Beebe and his assignors. This matter is not before us, as the son has not appealed.

We cannot concur in the conclusion reached by the court below as to the deed to Mrs. Brown. It is unnecessary to determine upon this record whether the deed to her was void as to Mr. Brown’s then existing creditors. He did not at that time dispose of all his property, and there is evidence that the amount retained by him equaled the amount of his debts. We find no evidence of any intent to defraud any subsequent creditors. There is no testimony from which it can be inferred that either he executed this deed, or that she received it, with any intent on his part to incur future indebtedness, and to deed this property to her with that purpose in view. If existing creditors could attack it, it is alone because the conveyance was voluntary. There were very good reasons why he should convey it to her. It was their homestead. She had been a hard-working woman, had taken boarders, and had evidently contributed as much as, if not more than, he towards accumulating the property. It was entirely proper and laudable that, as old age was coming on, she should desire to secure a home for herself, and something to live upon, to which, in justice, she was entitled. Her husband had become somewhat addicted to drink and gambling. The mere fact that Mr. Brown afterwards borrowed some money is not of itself sufficient to base a finding upon that they intended at the time to defraud his future creditors, or that it was contemplated that he should borrow money in the future. The deed was on record at the time that the various sums of money upon which the judgment is based, except the first note of $100, were borrowed. There is no testimony that these loans were made on any representations as to the title made by either Mr. or Mrs. Brown. The record of the deed was notice to the world that this land did not form apart of his assets. Strauss v. Parshall, 91 Mich. 475. There are cases where conveyances are fraudulent as to subsequent creditors when it is proven that that was the purpose of the conveyance. Such a case is Savage v. Murphy, 34 N. Y. 508 (90 Am. Dec. 733). In Baker v. Gilman, 52 Barb. 26, it was held that where a creditor knew of the conveyance, and then trusted the debtor, he could not recover. This is based upon sound sense and reason. The former decisions of this court, we think, rule this case against complainant. Page v. Kendrick, 10 Mich. 300; Keeler v. Ullrich, 32 Mich. 88; Gale v. Gould, 40 Mich. 515; Strauss v. Parshall, supra.

While no fraudulent intent is necessary to set aside voluntary conveyances as to existing creditors, it must be established in order to set them aside as to subsequent creditors. In other words, actual fraud must be shown, and as well the specific intent to defraud the individual subsequent creditor complaining, or subsequent creditors generally. Wait, Fraud. Conv. §§ 96, 202; Simmons v. Ingram, 60 Miss. 898; Florence Sewing Machine Co. v. Zeigler, 58 Ala. 224. In the case of Howe v. Ward, 4 Greenl. 195, an exhaustive examination of this subject was made, and many authorities cited and discussed. The conclusion reached in that case is thus stated:

“If the party for whose benefit the proof is introduced was not a creditor at the time the alleged fraudulent conveyance was made, such proof cannot avail him, unless found sufficient to convince the jury that the covey - ance was made for the purpose of defrauding him in particular, or subsequent creditors generally, as well as those who were creditors at the time, if there were any such.”

It must be remembered that we are dealing with a case where there was no actual intent to defraud any creditor, existing or subsequent, but where the law sets the convey r anee aside as to existing creditors, regardless of the intent. We are not called upon to determine whether a subsequent creditor can successfully attack a conveyance by the sole proof of an actual intent to defraud existing creditors. Upon this question the authorities do not seem to be in harmony. See Bump, Fraud. Conv. chap. 13.

Decree modified according to this opinion, with costs o£ this court to defendant Caroline Brown.

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