text:
    ALLISON v. TEETERS.
    1. Chattel Mortgages — Equitable Remedies — Election.
    Under a chattel mortgage executed and filed In the State of Indiana, plaintiff commenced foreclosure of the property, a horse, by complaint: the case proceeded to judgment, which the mortgagor agreed to pay or to turn over the horse before a specified date. He did not surrender possession to plaintiff as agreed, but sold the mortgaged property, which was removed to Michigan, and was conveyed to defendant, a purchaser in good faith, without notice of the mortgage lien. The instrument was never filed in this State: it contained a clause authorizing the mortgagee to take possession of the horse in case of default, and thereupon it should become his absolute property. In the foreclosure proceedings a sale was held pursuant to the order of the court, and plaintiff bid in the horse. Held, that, since the purchaser in Michigan obtained title in good faith, plaintiff could not, after foreclosing, exercise his option and take possession under the mortgage, no evidence being produced to show what the law was in the State of Indiana.
    2. Chattel Mortgages.
    Persons dealing with the apparent owner of personal property in Michigan are not required to consult the records in another State; without a transfer of the possession of mortgaged property, subsequent purchasers in good faith are not affected by the existence of a mortgage not recorded in this State.
    Error to Berrien; Bridgman, J.
    Submitted April 28, 1913.
    (Docket No. 56.)
    Decided July 9, 1913.
    Replevin by James Allison against Ira Teeters for a bay stallion. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Coolidge, Riford & White, for appellant.

      Burns & Hillman and J. H. Bibler, for appellee,
   Ostrander, J.

Plaintiff at one time owned the horse which defendant claims now to own, and on March 23,1910, sold it to one James F. Campbell, taking a chattel mortgage on the animal because a part of the purchase price was not paid. The mortgage was recorded in Fulton county, Ind., where the horse then was, on April 8, 1910; the vendee having possession of the horse. In December, 1911, the mortgagee began proceedings in the circuit court for said Fulton county to foreclose the mortgage, the complaint seting forth that said Campbell by his promissory note, made March 23, 1910, promised to pay plaintiff $600 one year after date, and to secure payment executed to plaintiff a chattel mortgage on two described horses, one of them the horse in question, that the note is past due and the conditions of the mortgage broken. The relief prayed for is a judgment for $300, the foreclosure of the mortgage, and an order for the sale of the property therein described. The defendant answered the complaint, and later, and on April 22, 1912, judgment for plaintiff for $230.75 was entered, the mortgage was declared to be foreclosed, and the property therein described was ordered to be sold to satisfy the costs and judgment. A prsecipe or writ was issued, directed to the sheriff of said county, by virtue of which, as appears by his return, he sold the property September 17, 1912, at public auction to the plaintiff for $297.05 and returned the writ satisfied.

The testimony tends to prove that when the writ was issued to the sheriff, which was May 7, 1912, the horse was in Campbell’s possession. The sheriff did not take the horse, and.plaintiff arranged with Campbell that the horse should be turned over to plaintiff, or the judgment paid, on August 14, 1912. Before that date, and áfter August 10th, Campbell sold the horse to one Jack Prior, who sold it to his brother, Milo Prior, who took the horse to Niles, Mich., on August 21st, put him in a stable and traded him to defendant August 27th for a three-year old colt, worth perhaps $150, and $125 cash. With the horse said Milo Prior gave a bill of sale, warranting his title. Defendant had no knowledge of plaintiff’s interest. Plaintiff finally found the horse in defendant’s possession, demanded possession, which was refused, and began this suit. Upon the ground that he was a bona fide purchaser of the horse, defendant asked for a peremptory instruction in his favor. Denying this, the court advised the jury that plaintiff, and not Campbell, had the title to the horse after default, and therefore neither Campbell nor the Priors had any interest to convey to defendant. A verdict for plaintiff was directed.

Apparently, this ruling was grounded upon the provision in the mortgage that Campbell should retain the possession of the horse until the note “hereby secured becomes due,” and if it is not paid at maturity “said James Allison shall then have the right to take and keep possession of said property wherever it may be found, without any process of law, and the same shall become the absolute property” of the mortgagee. If we have apprehended the reason for the ruling, it is not, in our opinion, a sound one. We need proceed no further than to say that it appears that the1 mortgagee, after default, did not exercise, or seek to exercise, any right based upon this provision of the mortgage. On the contrary, without retaking or seeking to retake the animal, he instituted proceedings to foreclose the mortgage, secure a judgment, and sell the horse in satisfaction thereof. Without retaking the horse, he became the purchaser at the execution sale which was made after defendant had bought the horse. We notice, too, that the mortgage gives the mortgagee power, upon breach of the conditions of the mortgage, to retake the property and to sell it to the highest bidder.

But it is contended by the appellee that the ruling of the trial court is right and should be affirmed because (1) Campbell, under the law of Indiana, had never any title which he could convey, the execution and delivery of the chattel mortgage operating as a conveyance of the absolute title to the mortgagee; (2) by the terms of the mortgage Campbell was a bailee of the horse and could convey no title to it; (3) having agreed with plaintiff to deliver him the horse on a day certáin, Campbell was thereafter the agent of plaintiff and held possession for him; (4) the judgment, or decree, of the Indiana court foreclosing the mortgage barred the rights of Campbell in the property and should be held by the courts of this State to be conclusive of Campbell’s and of defendant’s rights. These propositions may be considered together.

It does not appear that any one having knowledge of the law of Indiana testified to the state of the law upon the point relied upon. It does appear that various reports of the opinions of the supreme court of that State were introduced in evidence. It was held in Lee v. Fox, 113 Ind. 98 (14 N. E. 889), that:

“A chattel mortgage is at law a conditional sale, which vests the legal title, and prima facie the right of possession, to the things mortgaged in the mortgagee” — referring to previous decisions of the court.

The same case also affirms the doctrine that the right of the mortgagor to discharge the mortgaged property from the claim of the mortgagee after condition broken is abundantly settled.

“Unless the right to redeem has been waived, the mortgagor may assert his right at any time after forfeiture, and before the mortgage has been foreclosed, by paying or tendering the debt and interest, and redeeming the title. This right is called his equity of redemption, which may be barred or foreclosed in either of two ways, at the election of the mortgagee. It may be foreclosed by a decree in chancery, or by taking possession of the mortgaged property, and selling it at public auction, in pursuance of legal notice to the mortgagor.”

We are not attempting by this reference to the decisions of the supreme court of Indiana to ourselves determine the state of the law in that jurisdiction at the time the chattel mortgage was given. Lee v. Fox was decided in 1887, and, if the point was material, the law may have been changed since the decision was. rendered. Assuming the law to have remained without change, and that in legal effect there was a sale of the horse by Campbell, .the mortgagor, to plaintiff, the mortgagee, there was no change of possession of the thing sold.

In this State, and, it may be inferred, in Indiana, when chattels are sold or mortgaged and are not delivered, something is required to stand in the place of change of possession, or else creditors of, and subsequent purchasers from, the vendor, without notice, dealing with the property, are not affected by the sale or mortgage. In jurisdictions where anything is permitted to take the place of the usual change of possession of chattels claimed to have been sold or mortgaged, a public filing or recording of some instrument is required.

And if it is assumed that in this respect, as to the property in question here, the law of Indiana was satisfied, a citizen of this State dealing with the property and its apparent owner in this State is not required to take notice of the records in Indiana. Montgomery v. Wight, 8 Mich. 143; Boydson v. Goodrich, 49 Mich. 65 (12 N. W. 913); Corbett v. Littlefield, 84 Mich. 30 (47 N. W. 581, 11 L. R. A. 95, 22 Am. St. Rep. 681). We hold that defendant’s rights are unaffected by the. existence and record in Indiana of the plaintiff’s chattel mortgage. We do not perceive that defendant’s-rights are in any manner affected by the decree of the Indiana court and the proceedings thereunder. Campbell’s possession of the horse, after he bought him of plaintiff, was not disturbed.

Plaintiff has made out no right to the property superior to that of defendant, and the judgment must therefore be reversed and a new trial granted.

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


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    MILLER v. CASEY.
    1. Partnership — Real Property — Evidence.
    Complainant’s contention, in a suit for a partnership accounting, that his testator was an equal partner in farm property bought in defendant’s name, on land contract, deceased paying nothing, and binding himself to no definite time of payment, obtaining no written evidence of the claimed half interest, held, not to be established by conflicting evidence.
    2. Same — Pleading.
    Under a bill filed for an accounting, charging the existence of a partnership arrangement in the ownership and operation of a farm, which theory the evidence did not sufficiently sustain, an accounting could not be ordered as to stock buying and selling in which the proofs showed that the parties had engaged together, since the relief granted must conform to the general theory of the pleadings.
    3. Same — Equity Pleading — Remedies.
    It is not enough that the proofs show that complainant is entitled to some relief; for unless that Is the relief warranted by the averments of his bill, complainant has failed to make out his case.
    4. Same — General Prayer.
    The general prayer for relief goes no further than to enlarge the special prayer for relief, as the ease may warrant. The remedy awarded must always be consistent with the case made by the bill, not different from it.
    Appeal from Calhoun; North, J.
    Submitted April 28, 1913.
    (Docket No. 89.)
    Decided July 9, 1913.
    Bill by Allen Miller, executor of the estate of Henry W. Miller, deceased, against Garrett Casey for an accounting. From a decree for defendant, complainant appeals.
    Affirmed.

      J. M. Hatch & Sons, for complainant.

      Winsor & Miller, for defendant.
   Steere, C. J.

In this suit complainant, as executor, filed on July 20, 1911, a bill for an accounting in behalf of the estate of Henry W. Miller, deceased, alleging that the defendant, Garrett Casey, with deceased, purchased and operated a farm in the county of Calhoun, State of Michigan, under a partnership agreement between them that the earnings from said farm should be applied on the purchase price, allowing 5 per cent, per annum as interest on the money advanced by defendant for such purchase; that, at such time as the earnings of the farm had paid the purchase price, Casey should deed an undivided half interest therein to deceased, and they should share equally in the uses and benefits, and increased value of said land. The place in question, consisting of 240 acres of land, is known as the “Duer Farm.” It was purchased in 1902, paid for with money furnished by defendant, and deeded to him; he at that time having ready money in the bank available for that purpose.

Complainant claims that, in pursuance of their agreement of partnership, the farm was bought and stocked by the parties jointly, and that down to the time of testator’s death, in November, 1909, said farm was run, managed, and controlled by the two in cooperation; that a prosperous business was done on the place, netting over $1,500 per year, and out of the earnings of said farm the interest on the purchase price of $6,000 has been received by defendant and $4,800 on the principal. It is further claimed that said farm has, since its purchase, nearly doubled in value, being at the time of the trial worth, at a low estimate, $10,000; that at the time of the death of deceased their partnership business was unsettled, since which time defendant, who has possession of the books of said firm, has neglected and refused to come to an accounting. Based on the alleged contract of partnership and the business conducted thereunder, complainant, as executor of deceased, claims to be entitled to one-half of the increased value of the farm and one-half of the earnings, less the balance yet owing defendant on the purchase price.

Defendant, by his answer, makes total denial of any partnership or any indebtedness to said estate on his part. The suit was heard in open court, and after argument of counsel the conclusion was reached by the coui"t that complainant’s contention had not been sustained by a preponderance of the evidence; that no partnership in the purchase of the farm, nor interest in its proceeds, was satisfactorily shown, and thereupon dismissed complainant’s bill. From such decree complainant has appealed to this court after two motions for a rehearing, which were denied for the reason that the affidavits on which such motions were based were cumulative, in the main, and presented nothing new which would justify the court in granting the motions.

No written agreement or memorandum in writing of any kind is produced to establish this alleged joint ownership and interest of deceased in the title to real estate, admittedly purchased and paid for by, and deeded to, defendant. Both parties were mature business men of experience in real estate matters, farming and dealing in live stock. They were old associates and friends. Together with two other men named Stage and W. D. Miller, the latter a cousin of deceased, they had been engaged for several years in buying, selling, and shipping stock. The four were the principal stock buyers in that community, and were sometimes called the “Big Four.” About 1898 or 1899 the four men started doing business together, and continued up to the time of deceased’s last sickness. Of the nature of their relations W. D. Miller testifies:

“About 1898 or 1899 we started in business, the four of us, and continued up to the time of H. W. Miller’s sickness. * * * We all had transactions wherein the Big Four had no interest. Wellie (deceased) and Casey were very intimate and worked together. Stage had a business of his own, and they had a business of their own, sometimes Stage & Casey together, and sometimes Stage and Casey separate. We didn’t ask one another about it either, we just went and done it. * * * Of course, sometimes I would pay for it myself, and sometimes Stage, * * * and sometimes Wellie Miller, and sometimes they would not pay until it amounted to a few hundred dollars, and then charged interest for it. These matters were all settled up in a few days.”

This testimony in its material parts is not disputed, and in a general way indicates a working arrangement between the four in which they harmoniously co-operated as cattle dealers. The cattle they bought and sold were shipped, as a rule, from Marshall, and stock not fit for market, or which they desired to hold for any other reasons, was taken to some of their farms and fed for a time.

The testimony as a whole clearly indicates that Casey and deceased were very friendly and intimate, and more often associated in deals together than the others. They rented a farm for a time, and stock which they bought together was put upon it and kept for a greater or less length of time. The same course was followed with the Duer farm. Crops taken from another piece of land deceased owned were hauled to the Duer farm to feed their stock. They also bought feed elsewhere for that purpose. It is undisputed that during the more active period of their stock buying together deceased visited the farm at times, took stock there, and sold stock from there, bought feed for use there, and gave directions to employees on the farm in relation to the stock there.

When we come to the question of his having an interest in the farm itself the testimony is in emphatic conflict. That he could have had a half interest is conceded by defendant. They were interested together in the stock business when the farm was purchased. They talked it over. Defendant bought and paid for it, and it is his claim that at the time he bought it he offered a half interest to deceased if he would take it and pay for it, but that he did not do so, and made no claim to it during his lifetime; that their stock business was independent of the farm and farm purchase, except that their joint purchases of stock were at times taken to this farm, kept and fed, and sold or shipped from there, just as on other farms, owned individually or rented and used in their stock business.

Deceased had other and independent interests which also demanded his attention and means. He bought a livery stable in Marshall in 1903, the year after the purchase of the Duer farm. Complainant, his brother, testified that he carried on quite an extensive business in that line for a time; that “he wanted me to brace up and quit drinking, and go in and take care of the barn;” but that he subsequently sold it at a loss. Deceased also drank to excess at times, and for about two years before he died was in poor health and not in condition to as well care for, or as actively engage in, business as formerly. Complainant testifies:

“He was sick a good deal of the time, and was at Mt. Clemens two or three times.”

The friendship, interest in each other, and, to a greater or less extent, business relations continued between him and defendant until his death. During his last sickness, when confined to the house, complainant testifies:

“He thought a great deal of Casey; * * * I had a talk with Casey out on my porch the night before the will was drawn. Casey had been there to see my brother. I was talking with Casey, and I said, ‘You come and see him just as often as you can, because he is satisfied — he is more satisfied when you are here than when the others are.’ ”

Defendant did so frequently, apparently taking an anxious and friendly interest in his condition, talking to others solicitously about him, and in response to an inquiry of the attending physician as to his pay said, “You go on, and if he don’t pay you I will,” which defendant afterwards did. As deceased’s condition grew more serious his physician, at the suggestion of complainant and others, spoke to him of the advisability of adjusting his temporal affairs. In talking of them he stated that he wanted no lawyer, and said he and defendant could settle their own affairs. He finally made a will leaving his estate to complainant.

Before the will was drawn complainant asked defendant as to his business relations with deceased and the condition of their joint interests, and they later had several interviews on the subject. Both testify as to the nature of these conversations, and their lengthy testimony is in direct conflict. Complainant testified that defendant admitted their partnership relations and deceased’s interest in the farm, showing an account book marked “Duer Farm,” on which was entered their various accounts. Defendant denies having or showing any such book, and produced a bank book containing certain entries which related to the farm, which he claimed was the one he showed complainant, and was the only book he had; denies admitting that deceased ever had an interest in the farm, and claims he explained at length their business relations, and showed they were practically all settled, and he owed deceased nothing.

Various witnesses testified to statements of deceased that he had an interest in the Duer farm, and others to his statements that he had not, and that he had never put a cent in it. Certain of complainant’s witnesses testified to statements of defendant that he and deceased owned the farm together. Defendant denies making such statements, and claims that what he did say was that deceased was offered, and could have had, a half interest in it if he had so desired and paid for it; but that he never did take it, never paid a cent upon it, and made no claim to it during his lifetime.

Any detailed review of the lengthy, conflicting testimony of the numerous witnesses would serve no useful purpose. Taking it as a whole, we are impressed, as was the trial judge who heard and saw the witnesses, that it distinctly falls short of satisfactorily establishing a partnership in the purchase and business of conducting this farm, or any ownership or interest of deceased in said realty. The absence of any writing • upon the subject, while not controlling, is important.

It is true that a court of equity may hold real estate standing in the name of individual partners to be partnership property, where the acts, words, and conduct of the parties show it to have been treated as such, and that such was their thought and intent; but this must be convincingly established by clear, preponderating evidence. This farm was in no sense a contribution by defendant to make up his portion of the capital of the firm, as in Johnson v. Hogan, 158 Mich. 635 (123 N. W. 891, 37 L. R. A. [N. S.] 889). It was a distinct cash investment in real estate to the amount of $6,000; and the claim is made that, with nothing in writing, without a dollar paid, with no security given, and no definite time of payment agreed upon, and the payments contingent on the farm earning them, the court should find, from this conflicting testimony, that deceased became a partner in the purchase, and the owner of an. undivided half of the land. We do not think the court is warranted in so finding.

Much of the testimony, relied on by complainant to prove a partnership in the farm purchase is reconcilable with, and tends more strongly to establish, a copartnership in the business of buying and selling stock, extending over a term of years, involving many and varied transactions, and that their accounts wcro in a confused condition. Defendant himself testifies that he said to complainant:

“No, if you would settle with me square, you would not have a dollar, you would have to put up instead of drawing out, and I said, T want to settle this thing, it has been a long transaction between us, and there has never been head or tail to it;’ * * * there was a lot of this work done from word to word— ‘you do this and I will do that,’ and nothing to show one way or the other; it was right and wrong with us. He and I knew what we agreed to, but nobody else did. * * * I explained to Miller, of course, that it was a long, tangled-up mess, and there was a good deal of honor between us.”

This, if properly pleaded, would seem to suggest a proper matter for accounting.

It is the contention of complainant’s counsel that, in any event, a partnership in stock dealing is shown, and he is entitled, as a secondary relief, to an accounting as to such relations, under his general prayer for relief, even if the court fails to sustain the allegations of the bill as to the real estate partnership.

The bill is filed on the theory of a partnership in the ownership and operation of this farm, not a partnership in the business of buying and selling stock, and the accounting asked for is “in respect to said copartnership.” It nowhere makes mention of any partnership relations, or business transactions, except in the farm venture. Stock dealing is not referred to or suggested in any way. So far as the pleadings warrant it, the court could as well order an accounting in relation to a partnership in the grocery or dry goods business. The bill concludes with the usual prayer “that your orator may have such further and other relief in the premises as shall be agreeable to equity and good conscience,” but the “premises” distinctly and only allege, and relate wholly to, a partnership in the purchase and conduct of a farm.

In 16 Cyc. p. 485, it is said, citing numerous authorities :

“Furthermore, it is not enough that the proofs show that plaintiff (or complainant) is entitled to some relief; for unless that is the relief warranted by the allegations in the bill, plaintiff has failed to make out his case. And if plaintiff has framed his bill to adapt it to a certain theory on which he bases his right to recover, the proofs must be such as to warrant a decree in conformity to this theory; and it is not enough that the proofs are sufficient to justify a decree in conformity to some other theory.”

A general prayer for relief goes no further than to enlarge, as the case may warrant, the special prayer for relief; but the relief granted must always be consistent with the case made by the bill, not different from it. Hiern v. Mill, 13 Vesey, 114; Daniell’s Chancery Pleading & Practice, 380. This universal rule has always been recognized in this State. In Puterbaugh’s Chancery Pleading & Practice (3d Ed.), p. 27, it is said:

“The court,may, under the prayer for general relief, grant him such relief as he ought to have, consistent with the case made in the bill.”

The secondary relief asked by complainant is not consistent with the case made in the bill, and for that reason beyond the power of the court to grant under the pleadings.

The decree of the trial court dismissing complainant’s bill is therefore affirmed, with costs; but to be construed, of course, as without prejudice to any proceedings he may desire to institute relative to matters not alleged in the bill, though testimony may have been given in relation to some of them.

Decree affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    REAGAN v. MURRAY.
    1. Competency — Deeds—Capacity of Grantor.
    Evidence tending to . prove that decedent executed deeds of all his real property to his son, excluding his daughter from any share in his estate, at a time when he had become enfeebled by illness, that he had failed rapidly after the death of his wife and prior to the making of the deeds, that his memory was impaired but he was capable of transacting business understandingly and was active mentally, and well preserved both mentally and physically at the age of 85, held, insufficient to invalidate the transfers.

    2. Deeds — Burden of Proof — Evidence—Incompetency.
    The complainant, seeking to set aside voluntary deeds of a decedent, has the burden of proving a charge of incompetency by a preponderating evidence, so that evidence which does not prevail over defendant’s testimony, or which' is so evenly balanced as to leave the issue in doubt, will not sustain the claim of incapacity.
    3. Gifts — Testamentary Deeds — Parent and Child.
    Mere inequality or unfairness between a grantor’s children or heirs- will not invalidate deeds of his property executed in contemplation of death, if he acted understandingly.
    4. Deeds.

      Held, that the weight of the evidence sustained the capacity of defendant’s grantor to make a disposition of his estate by deed.
    Appeal from Mackinac; Shepherd, J.
    Submitted April 14, 1913.
    (Docket No. 59.)
    Decided July 9, 1913.

      Bill by Mary Reagan against Thomas B. Murray for the cancellation of certain deeds. From a decree for complainant, defendant appeals.
    Reversed.

      James J. Brown (Halstead & Halstead, of counsel), for complainant.

      Henry Hoffman, for defendant.

       As to the validity of a deed by an incompetent person, see note in 19 L. R. A. 489. And on the question whether a deed of real property executed by an incompetent not judicially declared such may be avoided in action at law, see note in 19 L. R. A. (N. S.) 461.

   Steere, C. J.

The bill of complaint in this suit is filed for the purpose of setting aside, on the ground of fraud and incompetency, two deeds, dated August 17, 1910, executed by Michael Murray shortly before his death, conveying all his real estate to defendant.

Complainant and defendant are. brother and sister, and only heirs at law of said Michael Murray, who died at St. Ignace, Mich., on August 23, 1910, at the age of 85 years. He had resided in St. Ignace for over half a century. At the time of his death he was a widower, his wife having died less than a year previous. He owned about 10 acres of land in the city, upon which were five comparatively small and inexpensive dwelling houses; also about 200 acres of land near by, and was possessed of personal property, estimated at from $400 to $500. His last illness was only of about eight days’ duration.

Complainant, at the time of the hearing in this case, had been married 34 years, having a husband and six living sons, the eldest of whom was 32 years and the youngest 15 years of age. Her husband, a man of respectability and responsibility, formerly a blacksmith by trade, had been for many years a justice of the peace of the city of St. Ignace, and was then also acting as janitor of the First National Bank of said city.

Defendant was a bachelor 50 years of age, by occupation a woodsman, and was employed at the time of his father’s death and for years prior thereto as a foreman in the lumber camps of a cousin. He had at times been dissipated, and caused his father much trouble and anxiety, but in recent years appears to have changed his habits. He is crippled in his hands, and, on account of such condition, partially incapacitated for manual labor. He might find it difficult to procure employment with strangers, but had been able, in the employ of his cousin, to earn regular wages as a scaler and foreman. '

During his long residence in St. Ignace deceased was known as an unusually strong and vigorous man, mentally and physically, and something of a leading character. He had two brothers, David and Patrick, with whom he was associated in various business activities, including owning and dealing in a tract of land. He had charge of and managed this business for the three. He had held different public offices for many years, having been supervisor of his ward, member of the board of aldermen, and for some 15 years prior to his death a member and secretary of the board of poor commissioners of the county. He was a temperate man, religiously inclined, of strict integrity, and of general good health according to his age. Up to the time of his last sickness he attended to the affairs of his office as secretary of the board of poor commissioners, looked after his own business matters, continued the habits of his life in going daily to the post office, a distance of nearly a mile from his home, and regularly to church, which was about the same distance. He walked to church on August 14, 1910, the day preceding the one on which he was taken with his last illness. The consensus of opinion on the part of all the witnesses, including those of complainant, is that he was a man remarkably well preserved for his age, and, though becoming more feeble and less vigorous as age came upon him, his mind was active and he was capable of transacting his business affairs understandingly, was in possession of his faculties, and retained his characteristics of mind up to the time of his last sickness, except that , complainant and her husband claim and testify that after the death of his wife he failed rapidly and his memory was perceptibly impaired.

Such testimony, even though undisputed, is not evidence that he was mentally unsound. Lynch v. Doran, 95 Mich. 395 (54 N. W. 882); Davis v. Phillips, 85 Mich. 198 (48 N. W. 513). Complainant’s husband testified that up to the 1st day of August, 1910, he was mentally capable to transact business and convey his real estate understandingly if he so desired. Counsel for complainant say, in their brief:

“On the issue of mental competency we are asked to believe that up to the time of his death Michael Murray was a man of more than ordinary ability. We are ready to admit — have never denied — that normally, and when he was in active business life, he was a man of fair, average ability, and more or less familiar with the class of business that would likely interest him, including the transfers of real estate; but we do insist that such was not his condition after he was taken sick, or even before that time, but he was failing, mentally and physically, all of the time.”

That the burden of years was bearing on him is undoubtedly true, but the testimony is so overwhelming, that up to the time of his last sickness he was fully competent to transact business and make conveyances of real estate understandingly, that we shall spend no further time on that question. That he was a man of independent thought and not easily influenced is strongly established, and the only serious issue in the case is whether or not, after his sickness and at the time he executed the instruments in question, he had so changed and become so enfeebled, both physically and mentally, that the execution of the deeds in question was not his own intelligent act in disposing of his property according to his actual wishes.

Deceased and his wife had, prior to her death, lived alone in their own home for many years except as defendant went and came, making his home with them when not away at his employment in the woods.

Up to the time of deceased’s death the relations of all the various members of the family were apparently pleasant and harmonious. Complainant had lived for many years at her own home with her husband and children, in the neighborhood of half a mile distant from that of her parents, with whom she and her family frequently visited back and forth, exchanging the mutual help, hospitality, and attentive manifestation of affection, good will, and interest, appropriate and common to such close relations. Deceased had given complainant the lot on which their home was built by her husband shortly after her marriage, and was kind and helpful to the family in many ways, prompted by his interest in their welfare rather than their necessities, for the husband was independent and cared for his family and business affairs. Deceased’s wife had been in feeble health for some time before her death, and complainant had been much at her father’s house on that account, looking after and helping care for her mother. After the mother’s death, the father being left alone and desirous of remaining at the home, where he had lived for many years, complainant with her husband and family moved to her father’s home to look after and care for him, as she and her husband claim at the solicitation of defendant and the father; to which defendant does not fully assent, claiming it was their own suggestion, and that the father, though kindly disposed to them, was at times annoyed by, and objected to, the number and noise of the children.

Defendant became less of an anxiety and more of a comfort to Ms parents as he grew older. He had been quite regularly in the employ of his cousin for about 12 years before his father’s death. When not away at work he lived with his parents, and frequently went home from his work in the woods to spend the Sabbath with them. He helped them in a financial way at times, employing domestic help for his mother after she grew feeble, and procured necessaries or conveniences for the household. During a period of about six years he paid for the care of an afflicted sister, who subsequently died in the State hospital, the cost amounting at times to $26 per month. He had come from the camps and visited his father the day before he was stricken with his last illness. It is clearly shown that deceased was on good terms with, and had paternal affection for, both of his surviving children.

On Monday, August 15, 1910, Michael Murray became seriously ill with an attack described by complainant as “summer complaint” and “general weakness.” A physician was summoned who, after examination, expressed the opinion that the patient would not recover. He was a Catholic, so a priest was then called to minister to his spiritual needs and defendant was. notified, coming at once by special conveyance and remaining until after the death and funeral. On August 17th the deeds in controversy were executed by deceased in the presence of his brother, Patrick Murray, and a relative named Charles Murray, who had prepared the deeds, was a notary public and took the acknowledgment. On August 18th the parish priest administered the last sacrament to deceased, and on August 23d he died.

The value of the real estate described in the deeds in question was not great. Patrick Murray, the brother, who also owned similar property, estimated that in the city as worth $2,000, and stated he had unsuccessfully offered similar land in the country at $5 per acre. Reagan, complainant’s husband, estimated the 200 acres outside of town at $20 per acre, and the city property at about $3,000.

There is no direct evidence of fraud or undue influence in procuring the conveyances. The testimony of all witnesses and participants is to the contrary, and to the effect that what was done was at the request and on the initiative of deceased, without prompting or interference from any one. The testimony is also clear that, when normal, deceased was a man of independent and positive views, not easily deceived or influenced. The claim of fraud can only be urged by inference, based on and arising from the claim of mental incompetency, which is the actual issue before us.

The object of this bill being to set aside these deeds on the ground of incompetency on the part of the grantor, primarily the burden of proving the charge by a preponderance of evidence rests upon complainant, and if the testimony does not prevail in her favor, or is so evenly balanced as to leave the question in doubt, her suit must fail. Brown v. Brown, 39 Mich. 792; Gibbons v. Dunn, 46 Mich. 146 (9 N. W. 140); Corby v. Moran, 119 Mich. 272 (77 N. W. 930); Hayman v. Wakeham, 133 Mich. 363 (94 N. W. 1062); Behrns v. Qualman, 147 Mich. 635 (111 N. W. 198).

It is urged in behalf of complainant that when it is shown the deeds were made by a very.old man, sick and feeble, on his deathbed, and without consideration, the transaction is to be regarded with suspicion, and the burden shifts to defendant to establish its fairness and show that the grantor understood the effect and character of the instruments he signed— citing 13 Cyc. p. 737; Duncombe v. Richards, 46 Mich. 166 (9 N. W. 149); Crawford v. Hoeft, 58 Mich. 1 (23 N. W. 27, 24 N. W. 645, 25 N. W. 567, 26 N. W. 870); Gates v. Cornett, 72 Mich. 420 (40 N. W. 740); Brennan v. Zehner, 97 Mich. 98 (56 N. W. 231).

The only testimony directly tending to show that deceased was not competent to understand what he was doing and did not advisedly execute the conveyances is that of complainant and her husband. They testify that from the beginning of his illness he realized but little of what was passing; was at times delirious and at others in an apparent stupor; that he could not raise his head or sit up in bed unaided; that he did not recognize defendant when he returned until complainant roused him and told who it was; and that at no time during his sickness- was he mentally in a condition to transact business or understandingly execute a conveyance of his real estate. The husband testifies:

“I know that Michael Murray was never able to make a deed or any other document of any description from the time he laid down until he was buried. I know he was not.”

Complainant and her husband were not consulted nor advised of the making of these conveyances, although she was in the house at the time. Neither was defendant present. She testifies that Charles Murray came to the house about 10 o’clock in the forenoon of August 17th, asked as to the condition of her father, said he had been sent for by him to make out some reports, and was told by her to go in and see him; that Patrick Murray was also there, and the two went in together; that the doors were open, and she was around the house, but paid no attention to what was going on; that, having occasion to go into the sick room, she saw Patrick signing a paper which looked like a deed; that nothing was said to her about the matter, except “Charles Murray .stated, as he was going away, that he could not make out the reports, as he knew nothing about them.

Defendant testified that on previous occasions his father had told him he intended to deed this property to him, and had asked him to come down from his work on a week day to be present and help him attend to it; that on the morning of the 15th of August, before defendant left for his work, his father spoke of it and wanted him to come down Friday or Saturday of that week to attend to it; that on his return when summoned his father knew and greeted him, was rational, and his mind clear; that defendant was with him much of the time and sat up with him nights; that until towards the last he was able to rise up in bed, noticed and took interest in what was being done; talked with defendant at times of the family, of defendant’s mother and her death, ‘ and of business matters; again called up the matter of deeding the property to defendant, and directed him to have Charles Murray, who was a notary, make out the deeds and bring them to him for execution, and that defendant did as his father directed; that after the deeds were prepared he gave them to his uncle Patrick, requesting that he go with the notary and act as a witness.

Patrick Murray, brother of Michael, testified that he was between 83 and 84 years of age, that he and his brother always lived close to each other and worked together; that after defendant handed him the deeds he took them to his brother, who read one after the other and then said, “These are all right;” that he asked witness to get his glasses from the dining room, rose up in bed to read and sign the deeds, and after he acknowledged their execution in response to the inquiry of the notary they signed as witnesses; that his brother was all right mentally, as far as witness could see, competent to understand and execute the deeds, and that he did some business relative to the poor board on a later date.

Charles Murray, the notary, testified that he prepared the deeds at defendant’s request, who said his father desired him to do so and to go down and take the acknowledgment; also to attend to some matter pertaining to the poor commissioners; that he went as requested; that complainant came to the door, and Patrick Murray was in the room; that he told deceased he had been requested to come and take an acknowledgment, whereupon deceased pointed to the papers saying, “Yes, the deeds are there;” that witness picked them up, stated to him that they conveyed his lands to his son Thomas, and .asked if he wished to sign them, to which he responded decidedly, “I do;” and told witness where to get a pen and ink, raised himself up in bed, took a book witness passed him to write on, and signed the deeds, after which they were witnessed and acknowledged. That to all appearance his mental condition was good and he was competent to do what he did; that when he handed them back to witness after signing, he said, “These deeds are all right.”

The doctor and parish priest who attended deceased testified that he appeared all right mentally, and they discovered nothing to attract special attention in that particular. John Murray, a nephew living near by, went in and out more than once daily to see his uncle during his sickness, and when there conversed with him on various topics, which he discussed intelligently. He testified, “I would consider he was compentent to do any kind of business up to three days before he died.” Two days before he died a next door neighbor by the name of Quinn, who had known him for many years, called and inquired about him. He testified that deceased, hearing his voice in the adjoining room, called out to complainant and asked who was there. On being informed, he requested that Quinn come in as he wanted to see him; that he then raised himself up in bed, refusing witness’ assistance, saying, “No, I can help myself yet, thank God;” that they visited for about 10 minutes, and deceased talked rationally, manifesting no mental weakness. Another nephew named P. W. Murray, who visited him the day before and the day after the deeds were executed and talked with him on various subjects, saw him sitting up in bed, and testified that he was perfectly competent to execute deeds or transact any; business. A niece, who lived within 100 feet and was in to see him several times a day during his sickness, testified that she saw no difference in his mental condition from what it had been for some time before his illness.

Counsel for complainant cite Noban v. Shoup, 171 Mich. 191 (137 N. W. 75), as an analogous case, and refer to the following language as particularly appropriate :

“The record discloses no reason why the father should have deeded to the defendant all the estate he had in the world (with the exception of a very small amount of personal property), to the practical exclusion of his only other child, the complainant.”

There are matters disclosed in this record which might have been thought sufficient reason by deceased. Defendant was and always had been a member of his father’s household and had no other family ties. He was crippled, and the father had expressed doubts if others than a relative would give him employment; he had helped his father at times, and for six years bore the burden of the care of an afflicted sister. Complainant had a home of her own, with a husband and six sons, who could and did provide for her.

That the execution of these deeds was but the carrying out of a previous purpose is indicated. Defendant so testified; and P. J. Murray,' a nephew, shown to be a- prominent and responsible business man, testified that he not only visited and talked' with his uncle during his sickness and found' his mental condition clear and good, but that on former occasions his uncle had expressed his purpose to give this property to defendant; that on August 8, 1910, he had stated to witness that he wanted defendant-to come down on a secular day of the week, saying:

“He has been coming down here. Saturday night and back Monday morning and I can’t do anything; I wanted to' deed this property to him for these last two years, and he would keep putting it off from time to time.”

If this' testimony is true,' and there is nothing in the record to' impeach it, the execution of the deeds was but the carrying out of a previously expressed and long delayed purpose which he had entertained for at least two years.

If deceased acted understandingly he had a right to dispose of his property as he saw fit, even though it-might be inequitable. In Beadle v. Anderson, 158 Mich. 483 (123 N. W. 8), this court said:

“The fact that a division is not equal between children regarded apparently with equal affection is no sufficient reason to disturb a disposition of property so made, as has been many times declared.”

The parties and their witnesses in this case appear from the record to be all respectable and intelligent persons, mostly related, and it is to their credit that the testimony shows much less acrimony, bitterness, and unkindly recrimination than is usually manifested' in this class of cases.' There is a conflict in their testimony which cannot be reconciled. No disinterested witness testifies to Michael Murray’s incompetency. With the exception of defendant, those testifying to his soundness of mind are disinterested, so far as shown, had ample opportunity to observe and reason to know, give convincing detail of time and circumstance, and, beyond the bare statement of adverse facts and opinion, manifest no bias or unkindly feeling towards complainant.

Assuming that all the witnesses are equally credible, and applying the rule of preponderance of evidence, we are constrained to conclude that the greater weight of evidence is adverse to complainant’s contention, and the decree of the lower court is reversed, and bill dismissed, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ concurred.


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    SCHOOL DISTRICT NO. 2 OF SYLVAN TOWNSHIP, WASHTENAW COUNTY v. MUSBACH.
    1. Equity — Jurisdiction—Real Property — Value.
    Equity will not dismiss a bill to quiet title for want of jurisdiction, if the evidence does not disclose that the value of the property in dispute is less than $100; the fact that the parties to the litigation entered into a tentative settlement or compromise of the- questions in dispute fixing a less value than $100, subsequently failing to act upon the agreement, will not control the matter of jurisdiction even if the evidence of compromise is competent.
    2. Quieting Title — Possession.
    A bill to quiet title cannot be maintained against a party in possession. Act No. 256, Pub. Acts 1909 (4 How. Stat. [2d Ed.] §11965).

      3. Same — Fraudulent Taking Possession.
    No such fraudulent or forcible assumption of possession appeared as to deprive defendant of his right to make claim thereto in a case in which he had openly advised complainant of his claim to ownership, and threatened to fence in the land, and later without using any force enclosed the land with other property held by him, having the record title of the parcel in dispute.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 18, 1913.
    (Docket No. 93.)
    Decided July 9, 1913.
    Bill by School District No. 2, Sylvan Township, Washtenaw County, against Henry Musbach and another to quiet title to real property. From a decree for complainant, defendant appeals.
    Reversed.

      Stivers & Kalmbach, for complainant.

      A. F. & F. M. Freeman, for defendants.
   Steere, C. J.

Complainant filed its bill in this case for the purpose of removing the cloud from the title of a small triangular piece of land, consisting of about one-eighth of an acre, alleged to be a portion of its schoolhouse grounds. Complainant’s schoolhouse is located between four and five miles we¡=st of the village of Chelsea, in Washtenaw county, on a site in the extreme northwest corner of section 17, town 2 north, range 3 west, facing west on a highway running north and south on the section line. It is conceded complainant owns about one-quarter of an acre of land in the corner of said section, upon which are located the schoolhouse, woodshed, some shade trees, and other appurtenances of a typical country school. The triangle in controversy joins this on the north, being in section 8, and described as—

“Commencing at post on section line between sections 8 and 17 where the wire fence, running along the east side of schoolhouse, intersects said section line, and running thence west 85 feet; thence north 122 feet; thence southeasterly to the place of beginning, being a triangular piece of land located in southwest corner of the west half of the southwest quarter of section 8.”

Said district No. 2 was organized in an early day, and has maintained a schoolhouse upon its present site for 50 years or more. Defendants reside on section 8, 50 or 60 rods north of the schoolhouse site, owning 60 acres of land in the southwest quarter of said section.

One Christopher Herzer, defendants’ predecessor in the regular chain of title was, from an early date until he died in 1878, the owner of the land in section 8, north of the schoolhouse, of which the disputed triangle was the extreme southwest corner. This triangle, together with the lands adjoining, was for many years wild timber land, mostly unfenced, lying open to the public highway; there being no fence between sections 8 and 17. The triangle was a somewhat hilly piece of land, sloping to the north, and from the time the school was established there the children used it, and as much of the adjacent woods to the north as they desired, for a playground in connection with the school grounds — coasting upon the hilly part in the winter, sometimes breaking down the small trees and bushes. With a view to using his wood lot as a pasture, Herzer, in 1874, erected a fence along the north and south highway between sections 7 and 8 to within 122 feet of the section corner at the northwest of the schoolhouse, and from there, leaving this triangular piece open to the school grounds and highway, so that the school children could use it as a playground, he ran his fence diagonally southeast to a point on the north line of section 17, where complainant’s east line intersects said line. The testimony seems quite clear that he left this small, triangular piece of ground adjoining the balance of the schoolhouse site unfenced and open that it might be used as a playground by the children, for the time being at least, hoping that they would confine their activities to that side of the fence and refrain from, trespassing upon his land at the rear.

It is the claim of complainant that Herzer at that time donated this triangle to the school district as a playground, that it was in possession of the district, so used and occupied, for over 15 years, and until defendants took possession in 1910 and fenced it in with their adjacent farm, at a time when the school district had become the rightful owner by donation and prescription; that defendants’ possession was therefore tortiously taken, and has since been unlawfully held. On the part of defendants, donation to and adverse possession by complainant is denied; a clear chain of title to the land is shown to be in them by mesne conveyances of public record up to the time of commencing this suit; it is contended that the value of the property is less than $100, hence below the jurisdiction of a court of chancery, and a bill to quiet title must fail because it is alleged in complainant’s bill, and shown by the evidence, that at the time of beginning suit defendants were in possession of the land in dispute.

There is some conflict in the testimony as to the exact size of this triangular piece of land, the only importance of which, if any, is its bearing on the value of the tract. The record shows that at one stage of this litigation the parties wisely entered into a stipulation of settlement by which the school district was to secure the triangle in dispute, with approximately as much more land, for $125 and $20 costs, but unwisely failed to consummate the deal, and the suit went on. This is urged by the defense as sufficient evidence of value, not directly of the land in controversy, but of the same class of land adjacent, to warrant the court in dismissing the suit because the amount involved is shown to be less than $100. That its value is small is evident, but certain of complainant’s witnesses place the same at over $100. We are not satisfied that values shown by the terms of a tentative settlement should be considered, or, even if entitled to be recognized as evidence, should control.

It is shown by the testimony of various witnesses called by complainant that Herzer said, at about the time he fenced in the adjacent land and left this piece uninclosed, “that he was going to give this triangular piece of land to the school district,” and later said that he had done so; that he at one time told a teacher that he had given the land for a' playground, and the children had ample room to play there, with trees to swing on, and he desired the district to see to it that teachers kept them out of his woods. We find no evidence that they did so, or that there was any formal acceptance or recognition of the gift by the school authorities. The children played there as before; the triangle lay open to the road, the schoolhouse yard remained as before, and no other or different acts of ownership or possession on the part of complainant are shown; no care or attention was given it by the school authorities.

Defendant Henry Musbach acquired title to the property from his father, in connection with the adjacent land in 1905. He and his father cut timber from it from time to time as they saw fit, without protest from any source. He rebuilt the old diagonal rail fence, inclosing the land back of it, when a better fence was needed, and the children continued to play there undisturbed. In 1910 he built a new wire fence along the boundary lines of his land, and “squared up” his farm, as he testifies, by following the section lines, and including the triangle to which he had the record title, and which he claimed to own.

In the meantime, seven or eight years before he inclosed the triangle with his other land, the school district officers, for the purpose of beautifying and improving the schoolhouse grounds, planted trees around the premises, set at uniform distances inside the boundary lines, and on the north side of the schoolhouse set a row of trees on the south side of the section line forming the south boundary of the triangle. Two officers of the school board directed and assisted in planting these trees. They planted none upon the triangle.

In 1911, a year after Musbach had inclosed the triangle with the adjacent land, it was decided and voted at a school meeting to build a new fence around the schoolhouse site. The ^ school director thereupon employed an old resident of the district, who himself had formerly been a school officer for many years, to build this fence. He built a new fence on three sides, leaving the front along the highway open, and in doing so took up the fence defendant Musbach had built on the section line on the north, replacing it with a new fence, uniform with the rest of the fence around the schoolhouse. Certain residents of the district raised' the question of defendants’ right to this triangle shortly after he inclosed it, and at a school meeting held July 11, 1910, the record shows:

“Motion to take a vote whether Musbach move his fence or not. Motion carried.”

Following this, the fence Musbach* had built was replaced, as before stated, on the south side of the triangle, leaving defendants in possession of the same. It was later claimed by some that this was without authority and by mistake, and at a school meeting held in July, 1911, a resolution was passed reciting that “Henry Musbach has taken possession of a portion of the school lot belonging to the district,” and authorizing the school oíácers of the district to “take such legal steps as may be necessary to recover possession of said premises.”

On February 12, 1912, this bill was filed to quiet title, stating, amongst other things, that complainant “is in the legal possession of the absolute title in and to said premises,” .and quoting, apparently as authority for commencing suit, the resolution above referred to, which states in unequivocal language that Musbach “has taken possession” of the premises and authorizes legal proceedings to “recover possession.”

That a bill to quiet title cannot be maintained by one out of possession against one in possession is not open to question. 1 Comp. Laws, § 448 (amended Act No. 256, Pub. Acts 1909, 4 How. Stat. [2d Ed.] § 11965), and authorities there cited; Moody v. Macomber, 158 Mich. 209 (122 N. W. 517). This question was early raised in the case by defendants’ answer, denying possession by complainant, alleging possession in themselves before and at the time of commencing suit, and claiming the right of demurrer on the ground “that it does not appear by the bill, as filed, that the same is a proper bill of complaint to be filed in such cases.” On the hearing of the case, after complainant’s solicitor had made his opening statement, defendants’ solicitor objected to any testimony being admitted because, amongst other things, “there is no equity in the bill; * * * the bill of complaint, under the statement of counsel as already made, does not state a cause of action,” and “if the statement of counsel be true the complainant has an adequate remedy at law.” It is clearly apparent from both the pleadings and proofs in this case that at the time suit was commenced defendants were in the actual, open, physical possession of this triangle, under a claim cf ownership, and that complainant was out of possession.

“Under such conditions, a bill filed merely to quiet title cannot be maintained.” Beidler v. City Bank of Battle Creek, 172 Mich. 381 (137 N. W. 717).

It is' contended in behalf of complainant that the possession of defendants is not sufficient to be considered and prevail under the foregoing rule, because it violated complainant’s prior possession, was acquired by sharp practice, and taken unlawfully by force and fraud (citing 32 Cyc. p. 1342; Bigelow v. Sanford, 98 Mich. 657 [57 N. W. 1037]). The only proof of any possession by complainant is that the school children used the land as a playground when it lay open, unfenced, and as a commons. Musbach claimed ownership, and had threatened to the members of the school board that he would fence it in some time before he actually did so. Holding the legal title, and under a claim of ownership, he inclosed this tract, previously uninclosed by any one, with his other land, openly, without force against any one in possession, and by peaceful measures. It was not done surreptitiously, by force or trick or fraudulent representations practiced on those who otherwise might have maintained a previous possession. Under the facts in this case the authorities cited by complainant are not in point.

For the reason stated the decree of the lower court must be reversed, and complainant’s bill dismissed, with costs to. defendants.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    PAUL v. CLEMENTS.
    1. Evidence — Trial—Cross-Examination.
    On rejecting the direct- examination of certain expert witnesses as to the sanity of deceased' testatrix, the courf should have excluded their cross-examination, for which no foundation remained in the case.
    2. Same — Trial—Redirect Examination.
    It is within the discretion of the trial judge to limit the redirect examination of an expert to matters developed on direct examination: the sustaining of contestant’s objection to an explanation on the part of a medical witness, upon redirect examination, how he reached his conclusion as to the insanity of testatrix was not,reversible error, in proceedings for the probate of a will.
    3. Same — Wills—Competency.
    Excepting witnesses to a will, persons are not allowed to offer mere opinions as to the insanity or mental incompetency of a testator, but conclusions derived from actual observation and conversation with a decedent are admissible in connection with facts testified to by the witnesses which have a tendency to support their conclusions. •
    4. Same — Opinions.
    And if all the facts stated by a witness considered as a whole te.nd to show unsoundness of mind, the opinion of the witness may be admitted.
    5. Wills — Witnesses—Evidence.
    Where a neighbor of testatrix who had known her for more than 20 years gave testimony tending to show that decedent frequently used vulgar and profane language, talked in a rambling manner, being nervous and flighty and of failing'memory, that she had complained of peculiar sensations in her head and feared she might be going crazy, that she told fortunes, with cards, declared she had made many wills and claimed to hold conversations with her deceased husband and others not living, the court should have permitted the witness to give her opinion, concerning the sanity of the testatrix.
    Error to Muskegon; Sullivan, J.
    Submitted April 21, 1913.
    (Docket No. 98.)
    Decided July 9, 1913.
    Minnie Ham Paul presented for probate the will of Helen E. Sossoman, and on appeal to the circuit court a judgment was entered admitting the instrument to probate. Contestant Emma Clements brings error.
    Reversed.

      John G. Anderson and Slick & Slick, for appellant.

      Cross, Vanderwerp, Foote & Ross and W. G. Crabill, for appellee.

       On the question of nonexpert opinions as to sanity and mental capacity, see note in 38 L. R. A. 721. And for opinion evidence by nonexpert as to the contractual or testamentary capacity of another, see note in 37 L. R. A. (N. S.) 591.

   Steere, C. J.

Emma Clements, the contestant and: appellant herein, is a sister of Helen E. Sossoman, deceased, whose will was admitted to probate in the probate court of Muskegon county on April 9, 1912.

At the time of her death, testatrix was a resident of Whitehall, in said county. The will in controversy was executed by her on June 5, 1906, at the city of Mishawaka, Ind., where she was then residing and had made her home for many years, having previously moved there from Whitehall, to which place she returned, and there resumed her residence not long before her death. At the time she executed this will she was 57 years of age, a widow, and had no children. She had been twice married, and at the time of her death had an estate worth between $5,000 and $6,000, a portion of which she had inherited from her last husband and a portion she had saved by economy and frugality. By the terms of her will she left her property, consisting of personal estate valued at $4,720’ and a house and lot in Whitehall valued at $1,200, to her niece, Minnie Ham Paul, the proponent herein, excepting $300 to her sister, Emma Clements, the contestant herein, and $100 to a niece named Eva Smith. Appellant contested the probation of said will, and appealed from the order of the probate court to the circuit court of Muskegon county, alleging the following reasons why said will should not be probated :

“First. Said instrument in writing allowed and admitted to probate is not the last will and testament of said Helen E. Sossoman, deceased.
“Second. That said instrument in writing was not executed according to the formalities required by law for the execution of wills.
“Third. That at the time of the execution of said instrument so admitted to probate as aforesaid the said Helen E. Sossoman was mentally incompetent to make a will.
“Fourth. That the execution of said instrument so admitted to probate as aforesaid by said Helen E. Sossoman was procured by undue influence upon the said Helen E. Sossoman.”

The case was tried in the circuit court for Muskegon county before a jury, and a verdict rendered sustaining the will. On the trial in the circuit court appellant based her contention entirely upon the claim that testatrix was insane and mentally incompetent to intelligently execute a will at the time the one in question was made. On said trial proponent in the first instance, to prove the will, introduced the testimony of one subscribing witness, Harvey W. Jones, an attorney of Mishawaka, Ind., who had been testatrix’s attorney at Mishawaka and drew the instrument at h.er request. He gave the requisite testimony to establish the validity of the will in the absence of anything to the contrary, after which proponent rested, and contestant proceeded with a large amount of testimony, raising the question of the sanity and competency of testatrix. The record in this case contains the testimony, in part at least, of five of contestant’s witnesses who testified in the case, two by deposition, and three sworn and examined in open court. Thirty-three assignments of error are based upon the admission or rejection of testimony in connection with their examination. The charge of the trial court does not appear in the record, and therefore no question is raised in relation to the same. The record discloses that besides the five witnesses whose testimony is the subject of inquiry here, contestant produced and examined ten others, residents of Mishawaka, Ind. In rebuttal proponent introduced the depositions of 16 witnesses who were residents of Mishawaka and five witnesses from the same place who were examined in open court, together with six witnesses who were residents of Whitehall, Mich. We therefore get from the record a comparatively small amount of the testimony taken, and little understanding of the merits of the controversy as developed by the evidence of the many witnesses who testified on the necessarily lengthy trial before the jury.

The questions raised involve technical rules of evidence as to the rejection and admission of testimony. Many of them are not of such a nature that, with the record presented, we are able to say the rulings of the court were erroneous; or, if technically tending in that direction, that the possibly technical errors were sufficiently prejudicial to call for a reversal in a case of this kind.

Appellant’s assignments of error have been conveniently and correctly grouped by counsel as follows:

“(1) Error of the trial court in sustaining the objection of the attorneys for'the proponent to the questions propounded to certain witnesses for the contestant, calling for their opinion as to the competency of the deceased to make the will in question.'
“(2) Error of the trial court in sustaining the objection of the attorneys for the proponent to the questions and answers of certain witnesses for the contestant on cross-examination; the testimony of the witnesses having been taken by depositions at South Bend, Ind.
“ (3) Error of the trial court in sustaining the objection of the attorneys for the proponent to certain redirect examination of the expert witness, Dr. Mueller.”

The second of these requires but little consideration. If objections to the testimony on direct examination were properly sustained, such testimony was not, and should' not be, in the case for the witnesses to be cross-examined upon, and the questions and answers in the depositions, constituting such cross-examination, were properly excluded. Baker v. Temple, 160 Mich. 318 (125 N. W. 63).

Contestant produced Dr. Wm. D. Mueller as an expert witness, and propounded to him a very lengthy hypothetical question containing a statement of many facts relative to testatrix, including her family history and relations, and incidents of what she had done and said at certain times under certain circumstances, asking his opinion as to her sanity, assuming the facts recited in said question to be true. Witness, having been allowed to answer, against objection, was cross-examined at length upon the subject by counsel for proponent, and re-examined by counsel for contestant, who, amongst other questions, asked the following:

“Now, Doctor, in order to enlighten the jury, I would like to have you explain to them how you arrive, in your practice, at a conclusion as to whether a person is sane or insane, whether it is some detached and single incident or instance, or whether from collected, a collection of incidents or instances.”

Objection to this was sustained and ■ error is assigned on such ruling. The question called for no facts, no opinion, and no answer as an expert to any hypothetical question. As introductory matter, or even in explanation and amplification of his opinion, an answer within certain limits could properly be allowed in the discretion of the court, but the allowance of such questions on re-examination is discretionary, and we cannot say on this record that there was an abuse of discretion.

The most serious question presented is the refusal of the court to allow certain nonexpert witnesses, who were well acquainted with testatrix, and who testified to various peculiar facts and circumstances in regard to her, to express any opinion as to her mental competency. This question has frequently been before the courts of last resort, and in time past has been the subject of much discussion and some diversity of opinion. The decisions of different jurisdictions are not all yet in harmony. While an exception to the general rule, the opinion of nonexperts, where proper foundation of personal knowledge is laid, is allowed in this and most of our sister States. When the issue of devisavit vel non is raised it opens, like the issue of fraud, a wide field of inquiry, relaxing in many particulars the more stringent rules of evidence, opening the door for sidelight testimony which in other kinds of litigation would be regarded as too remote. The serious subject of consideration in relation to such evidence in such cases is its weight rather than its competency. Recognizing the difficulty of the ordinary witness communicating to a court and jury a correct understanding of all the many facts and circumstances, great and small, which, to the actual observer, properly lead to conclusions as to the sanity of a person, the witness who has had ample means to observe and form conclusions as to the mental condition of a person, and who testifies to pertinent facts on which his conclusions are based, may supplement the same by stating what such conclusions are, for whatever aid it may be to the jury, who, from all the testimony, are to ultimately form their own conclusions and decide the issue.

In Buswell on Insanity, §§ 240-243, it is said:

“Except in the case of the attesting witnesses to a will, the mere opinions of persons not experts are inadmissible as evidence upon the question of a party’s insanity. But it is held generally in the American courts, when a person’s mental condition or capacity is in question, that the opinions of nonprofessional witnesses in regard to such capacity, derived from personal observation of, and conversation with, such person, are admissible in evidence when taken in connection with the facts upon which such opinions are founded. * * * To lay a foundation.for the admission in evidence of such opinions, the specific facts upon which the opinions are based must first be stated by the witness, or his testimony must show that such intimate and close relations have existed between the party alleged to be insane and himself as fairly to lead to the conclusion that his opinions will be justified by his opportunities for observing the party. But the mere ‘impressions’ of one who has had only a passing acquaintance with the party are inadmissible as evidence. * * * Thus it seems th'at opinions, though admissible with the limitations stated, are only to be considered as of weight so far as they illustrate the character and effect upon the mind of the witness of the facts on which they are based.”

The rule is fully recognized in this State in numerous decisions. Beaubien v. Cicotte, 12 Mich. 459; Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494); O'Connor v. Madison, 98 Mich. 183 (57 N. W. 105); In re Hogmire's Appeal, 108 Mich. 410 (66 N. W. 327); Lamb v. Lippincott, 115 Mich. 611 (73 N. W. 887); Page v. Beach, 134 Mich. 51 (95 N. W. 981); Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000); In re McMaster's Estate, 163 Mich. 210 (128 N. W. 259). That the rule must be guarded against abuse has also been distinctly stated more than once. In Page v. Beach, supra, it is said:

“The practice of proving by a witness two or three instances of tears, forgetfulness, anger, or some other emotion or idiosyncrasy, of doubtful significance, as a ground, and then taking the opinion of the witness (frequently biased) that the person is insane or incompetent or without sufficient understanding or intelligence to do the act in question, is contrary to the rule, as we have often said.”

Unquestionably the witnesses must narrate sufficient abnormal or eccentric conduct on the part of the person under inquiry to qualify them to express an opinion, and it is for the court to determine whether or not they have done so.

In the case at bar the court did not allow three of the witnesses whose testimony is given in the record to express an opinion as to deceased’s mental-condition, on the theory that they had not stated any fact from which insanity could be inferred. It is contended that this ruling is according to the test stated in Lamb v. Lippincott, supra, wherein it is said:

“Before one is competent to say that another is insane, he must state some fact that is inconsistent with sanity; and this is not done until the witness is able to testify to something that the man has said or done which fairly tends to show insanity.”

This language is not to be construed as meaning that a witness does not qualify unless some one distinct fact, considered alone, fairly tends to show insanity, but that all the facts stated by the witness, considered collectively and as a whole, must tend in that direction. In Beaubien v. Cicotte, supra, it is said:

“In many cases the facts which can be described will be very significant to a jury, while there are many facts susceptible of a different interpretation, from which a jury could obtain no light whatever without the aid of the witness’ judgment. The strongest indications of mental weakness or aberration often exist in expressions and appearances incapable of reproduction, even by an accomplished mimic; and yet decisive to any. intelligent eyewitness.” .

The three witnesses referred to are all shown to have lived near, and been well acquainted with, deceased for years, to have had such relations with and knowledge of her as to give full opportunity to judge and form conclusions; they all related specific facts which, taken together, denoted eccentricity more or less pronounced, appealing to them as indication of mental unsoundness. Whether their conclusions were well founded was a fair question for the jury, but they were not strangers with limited means of observation and but a passing knowledge, as in the case of Page v. Beach, supra, where the witness was allowed to express an opinion after having seen deceased but once, and for a short time. While the testimony of two of the witnesses in question is of such a nature that there might be room for debate as to whether or not the facts they related clearly tended to show insanity and consequently the rejection of their opinions reversible error, we are constrained to conclude, under the authorities referred to, that the witness Mary Scheibelhute clearly qualified to express an opinion and contestant was entitled to her answer. She had known testatrix from 20 to 22 years, seeing her frequently and living for some years a next door neighbor, visiting back and forth, was well acquainted and familiar with her, and testified, among other things, to her talking in a rambling manner, jumping from one subject to another; that she was nervous and flighty; that she told of having fallen upon her head some years before, and in telling of it said she had “nearly broken her d — n neck;” that she would not care if she had as her head felt mean, and she believed she was going crazy; that she was in the habit of telling fortunes with cards and talking extravagantly about her property and her wills, stating in that connection she thought she was losing her mind; that she had made so many wills she could not tell the number — had made one in favor of William Ham, and one in favor of Jim Clements, and one in favor of Minnie Ham, and then said, “Good G — d, I don’t know how many more wills I will make;” that she told of having seen and talked with persons who were dead; that, on one occasion, she told witness she had talked with Bill Guyer, her former husband, who had then been dead 10 or 12 years, and stated that he had admonished her “to take care of the children,” though they had never had any children; that she was apparently offended at her dead husband’s remarks about children, and stated that if she had him then available she would “kick him all over hell,” and when witness expressed doubts of the actuality of the interview related replied she did not care whether witness believed it or not, that she “knew what she knew;” that during the years witness knew her her memory failed materially, and she became more rambling in her talk, did not tell a story twice alike, and as she grew older it seemed harder for her to understand anything said to her.

We think that the witness testified to sufficient facts to justify the alleged inference of incompetency and qualified as a nonexpert opinion witness.

The judgment must be reversed, and a new trial granted, with costs in fávor of contestant.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and BIRD, JJ., concurred.


author: Bird, J.

text:
    SAILSKY v. DETROIT UNITED RAILWAY.
    1. Negligence — Contributory Negligence — Evidence — Street Railways — Death.
    Whether the driver of a vehicle was guilty of contributory negligence, in crossing a wye track of defendant street railway company in front of a car, relying on an alleged custom of the cars to stop at that crossing, was a question of fact.
    2. Same — Street Railways — Operation of Cars.
    The question of the negligence of -defendant’s motorman in colliding with the wagon on which decedent was riding, held, properly submitted to the jury under disputed evidence.
    Error to Wayne; Hosmer, J.
    Submitted April 14, 1913.
    (Docket No. 58.)
    Decided July 9, 1913.
    Case by Frances Sailsky as administratrix of the estate of Anthony Sailsky, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (Frederic T. Harward, of counsel), for appellant.

      John E. Maloney, for appellee.
   Bird, J.

Plaintiff’s intestate belonged to a gang of men constructing cement work in the city of Detroit. Having completed a job on Trumbull avenue, the men loaded their construction outfit, consisting of tool box, screen, planks, wheelbarrows, bags of cement, etc., onto a wagon and climbed on top of it and started for the next job on Baltimore avenue. To reach that point they drove north on the east side of Greenwood avenue, and when near the “Y” track which connects the Greenwood avenue line with the Holden avenue line one of the men announced that a car was coming. Cunningham, the driver, who was not as familiar with that locality as his fellows, turned to see where the car was in order to determine whether he could cross the “Y” track in advance of the car, when he was told by his companions to “Go ahead, you can make it, the car stops here.” The horses were then on the “Y” track and he drove on, but before the wagon cleared the car ran in on the “Y” and one of the stanchions on the open car engaged the handles on the tool box and threw plaintiff’s intestate and the tool box upon which he was sitting to the pavement, injuring him so badly that he died the following day. The negligence complained of was the careless and reckless management of the car. At the close of the proofs the defendant moved for a directed verdict on the grounds that the plaintiff had failed to establish the negligence of the defendant, and because the proofs showed that the driver of the wagon was guilty of contributory negligence. The court declined to control the verdict, but submitted both questions to the jury, who found a verdict for plaintiff. The defendant’s assignment of errors are based upon these, two propositions:

Was the driver of the wagon negligent? While the driver of the wagon was a comparative stranger to the custom of the cars in that vicinity, his companions, Seldon and Lemke, were familiar with it, and they testified that all cars stopped at this point and then went across the “Y” track and east on Holden. It was also shown by them that the defendant had for some time maintained at this point a car barn, a waiting room for passengers, a large air tank from which the car tanks were refilled, and an office where the conductors filed their reports. In this they were corroborated by the tradesmen who do business in that vicinity. It was also shown by several witnesses that it was the custom for all cars to stop there, take air, and receive and discharge passengers, and one witness testified that the motormen and conductors were changed there. The cars usually stopped on the straight track, but sometimes ran partially in on the “Y.” The testimony as to just where they stopped was more or less in conflict. If the jury believed the testimony that -it was the custom of the cars to stop at this point so as not to impede traffic across the “Y” track, and this custom was known or communicated to the driver, and he relied upon it in attempting to drive over the track in advance of the car, his negligence was one of fact and not of law.

Was the defendant negligent? The question was in dispute as to whether the car ran into the wagon or the wagon into the car. The plaintiff’s testimony showed that the “Y” track was reached by the wagon first, and that it would have passed in safety had not the car ran in a short distance on the “Y” track. This testimony was contradicted by the motorman, who testified that the car reached the “Y” track before the wagon did. The question was clearly one of fact to be considered and determined by the jury, and if they. believed plaintiff’s version of the affair, they were justified in finding that the car was negligently operated.

We are of the opinion that the trial court disposed . of the questions involved in accordance with the rules of law applicable thereto, and the judgment will be affirmed.

Steere, C. J., and' Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


author: Moore, J.

text:
    KNAPP v. HUBBARD.
    1. Sales — Contracts—Evidence—Relevancy.
    On. the trial of an action for wheat sold and delivered, evidence offered by defendant to show where the wheat was stored, how much was shipped out in a single consignment to a milling company, the weight and volume of the car as shipped and as received, the amount of wheat bought from others which was stored in the same bin and shipped in the same car, was admissible to prove that the quantity purchased of plaintiffs was less than they claimed.
    2. Interest — Sales—Payment.
    Interest is recoverable on a sale of goods not shown to have been bought on credit.
    Error to Oceana; Sullivan, J.
    Submitted April 28, 1913.
    (Docket No. 109.)
    Decided July 9, 1913.
    Assumpsit by Fred Knapp and another against Edgar R. Hubbard for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Rufus F. Skeels (Wm. H. Simpson, of counsel), for appellant.

      F. E. Wetmore, for appellees.
   Moore, J.

This is an action in assumpsit brought by plaintiffs to recover the price of eight loads of wheat which they claim they sold and delivered to defendant at the village of Hart, Mich. The price of the wheat agreed upon was $1.00 per bushel. The most important question in dispute in this case is as to the number of loads of wheat the plaintiffs sold and delivered to defendant. The plaintiffs claim that they sold and delivered eight loads, and the defendant claims that they only sold and delivered seven loads; that Exhibits E and F are for the same load, and on account of the weighing of that load twice, once on the big scales and once on the little scales, there were two weighbills made out for the same load and plaintiffs got them and now claim a load for each, making eight loads instead of seven. The dispute is over these two weighbills. There is also , a question as to tender and interest; the defendant claiming that a tender was made about June 10, 1912, and kept good by payment in court. And defendant also claims that, it being an open account unliquidated and disputed, there could be no interest allowed. The jury rendered a verdict for the sum of $474.18 over and above the costs of plaintiffs. After the rendition of the verdict plaintiffs’ counsel withdrew the sum of $402.68 that had been paid into court, and then the court ordered judgment to be entered in favor of plaintiffs for $71.50, together with costs. The case is brought here by writ of error.

There are many assignments of error, but the most important one relates to the attempt of the defendant to show that all of plaintiffs’ wheat, except the last load, was put into a bin along with other wheat, and from there all the wheat in the bin was put into a railroad car, sealed up, and shipped to the People’s Milling Company at Muskegon, Mich.; the weight and contents of the other, wheat besides that of plaintiffs that was in the car and the names of the persons from whom it was purchased and dates of purchases, and the weight and amount purchased from each person, and the total weight and amount of wheat shipped in the car; that the car was unsealed by the witness, John Dick, at the People’s Milling Company at Muskegon, Mich., and the car was unloaded by him, all the wheat weighed by him, and the weight tallied with the wheat as entered in the book of the wheat that was in the bin purchased of the various persons named in the book, including all the wheat purchased from plaintiffs, except this last load; that, if there had been the load claimed by plaintiffs as represented by their Exhibit E, there would have been a shortage of 3,570 pounds at Muskegon from what was shipped at Hart.

The question involved was a question of fact. How much wheat was delivered? The testimony was very conflicting. The proof offered, though not conclusive, perhaps had. value and should have been allowed to be given to the jury for what it was worth.

There is nothing in the record to indicate that the wheat was sold on credit, but on the contrary it may be assumed it was a sale for cash, and, if not paid for, interest should be allowed. The other assignments of error are unimportant.

Judgment is reversed, and a new trial ordered.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.