text:
    FITZGERALD v. THOMPSON TOWING & WRECKING ASS’N.
    1. Novation — What Constitutes — Evidence.
    A sale of the assets of a corporation was consummated by assigning all of its stock to representatives of the purchasers, andit was agreed between the parties to the sale that all outstanding debts of the corporation at the time of the sale should be paid by the.seller. The president and manager of the corporation was retained as its local manager with limited authority, and, while acting in that capacity, gave, without authority, a note purporting to be signed by the corporation for an indebtedness due plaintiff when the sale was made. Plaintiff had no notice of the liability of the sellers for existing indebtedness* nor of the limitation on the manager’s authority. Held, that there was no novation substituting the prior owners of the stock as plaintiff’s debtors, and that the cop'oration was still liable.
    2. Estoppel — What Constitutes.
    A creditor of a corporation, the assets of which had been sold and the sale consummated by assigning the entire capital stock to the purchasers, held, not estopped to assert his claim against the corporation by failure to include it in a list of claims given in response to a request by the new management for the “ outstandings.”
    Error to St. Clair; Law, J.
    Submitted December 8, 1905.
    (Docket No. 182.)
    Decided March 5, 1906.
    Assumpsit by James H. Fitzgerald and Thomas Fitzgerald against the Thompson Towing & Wrecking Association for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Moore & Wilson, for appellees.
   Moore, J.

This case was tried by the judge without a jury. The judge made findings of fact substantially as follows:

“The plaintiffs are a copartnership under the name of the Dry Dock Iron Works, doing business at the city of Port Huron, and defendant is a corporation organized under the laws of the State of Michigan. During all the time covered by plaintiffs’ bill of particulars the tugs mentioned therein were owned by the Thompson Towing &; Wrecking Association, of which corporation Charles D. Thompson was president and general manager, having authority to contract bills on behalf of the tugs and also on behalf of the corporation.
“Sometime prior to the 1st of August, 1899, the stockholders of the Thompson Towing & Wrecking Association (Charles D. Thompson and Charles L. Boynton owning substantially all the stock) entered into an agreement with Cleveland, Ohio, parties for the sale of all their tug property to said parties. This agreement was consummated on the 9th day of August, 1899, by Thompson and Boynton procuring all of the stock of the Thompson Towing & Wrecking Association and assigning it to Cleveland parties or to the Great Lakes Towing Company. Immediately after such sale all the former officers of the Thompson Towing & Wrecking Association resigned, and Cleveland parties were elected to succeed them.
“ Under the terms of the sale, it was provided that all bills against any of the vessels, or against the defendant corporation, incurred or owing up to August 1, 1899, were to be paid and satisfied by Thompson and Boynton, * * * all accounts payable to the corporation up to such date were to be and remain the property of Boynton and Thompson, on behalf of the old stockholders. For all business done after the 1st of August, 1899, the proceeds were to accrue to the benefit of the new stockholders, and they were to satisfy all indebtedness accruing after that date. The officers of the defendant corporation after said date were Thomas F. Newman, of Cleveland; president and treasurer, W. H. Wardwell, secretary, and William A. Collier, general manager, and no person other than these officers was authorized to contract any indebtedness or make payment of bills of any kind against the corporation. Charles D. Thompson was retained as local manager for the defendant corporation and was authorized to procure the necessary supplies and repairs for tugs under the direction of the Cleveland officers. But no notice of the contract by Thompson and Boynton to pay all debts against the Thompson Towing. & Wrecking Association up to August 1, 1899, was brought to the attention of the plaintiffs. Nor did the plaintiffs ever release the defendant from its liability upon the account here sued upon, and agree to look to said Thompson and Boynton or to either of them for payment thereof. Nor did the plaintiffs ever receive any actual notice of any limitation placed by the owners of the stock of the defendant corporation upon the authority of Charles D. Thompson after August 1, 1899, except that on or about the 9th of November, 1901, plaintiffs became advised that Thompson’s connectionJ with the Thompson Towing & Wrecking Association was dissolved.
“ After the ninth day of August, 1899, the custom in all cases was. to send all bills to Cleveland, where they were audited by the president, secretary, and general man- - ager of the defendant, and, when so audited and approved, they were paid by check of the Thompson Towing & Wrecking Association, signed by the treasurer and countersigned by the secretary at Cleveland.. This was the manner of auditing and paying all bills paid to the plaintiffs for work done by them on any of the defendant’s tugs after August 9, 1899, and for all work (of which there was a considerable amount) done on the different tugs during the years 1900, 1901, 1902, and 1903. The only act performed by Charles D. Thompson, the local manager, after August 9, 1899, in connection with bills against tugs located at Port Huron, was to stamp the bills ‘ Goods received. Prices correct,’ and sign the name as local manager. But no express notice of any limitation upon Charles D. Thompson as local manager of his authority to contract and pay bills was ever given to plaintiffs, and they had no other implied notice of this limitation except such as could have been inferred from this method in which their bills were paid.
“After August 1, 1899, and during the years 1901,1902, and 1903, the plaintiffs performed considerable work for defendant upon its different vessels, and also sold some supplies. In every case the bills for the same were audited in the manner above stated and paid by check of the defendant, signed in the corporate name and attested by the treasurer and president. There was some correspondence about this new work had by the plaintiffs directly with the Cleveland officers, but at no time was there any mention of the accounts upon which this suit is brought, so far as this record shows.
“Plaintiffs became advised of the fact that Thompson’s interest in the corporation had been disposed of about the time the transfer took place, but they had no notice that any limitations had been placed upon his authority to contract bills for repairs to tugs. On August 1, 1899, the bills upon which this suit is brought were due and payable, and they were carried on the books of the plaintiffs charged against the several tugs, as shown by the bill of particulars. In November, 1901, Thompson resigned as local manager, and Mr. Root was appointed as his successor. At the time of Thompson’s resignation, Mr. Root, the new manager, under the direction of Mr. War dwell, the secretary, went to the office of plaintiffs and informed them of the termination of Mr. Thompson’s connection with the company, and told the plaintiffs that he (Root) had been instructed to get a statement of all out-standings, and as a result of such statement be obtained from the plaintiffs the statements hereinbefore referred to, but no statement was rendered of the accounts sued upon, nor was any mention made of them. Mr. Root made no request for any bills against the defendant corporation as distinguished from the individual vessels. There is no testimony showing that the Cleveland officers knew about the old bills on which this suit is brought prior to about the time of bringing the suit. After November, 1901, Thompson has had no connection in any way with the defendant. About August, 1900, plaintiffs received from Charles D. Thompson a note for $1,000 to apply on these old accounts. This note is signed ‘Thompson Towing & Wrecking Association, by C. D. Thompson.’ This note was renewed at different times, and at one time Thompson paid $100 on the same. Thompson in fact had no authority to sign a note for the defendant, but the plaintiffs had no notice but what he possessed such authority until November 9, 1901.
“After Thompson’s resignation as local manager in 1901, plaintiffs had some dealings with the new local managers concerning tugs; but the old claim was not mentioned to any of them up to the time that suit was commenced. At the time the obligation to protect the new owners of the stock of Thompson Towing & Wrecking Association from any indebtedness accruing prior to August 1, 1899, was given, both Mr. Thompson and Mr. Boynton were supposed to be financially responsible. Mr. Thompson became financially irresponsible some time about 1900, and Mr. Boynton became financially irresponsible about the beginning of the year 1904.
“ Immediately following the furnishing of the materials and the performance of the services on which this suit is brought, the plaintiffs furnished to the defendant by and through its local manager, Charles D. Thompson, a detailed statement of all services performed upon said tugs. So far as all subsequent transactions between the plaintiffs and defendant are concerned, the same general course was followed in each and every instance, to wit, the furnishing to the defendant by and through its local agent with a detailed statement of the work performed upon the various tugs monthly; the accounts on the books of plaintiffs were at first charged to the tugs individually and not to the defendant as a corporation, but, subsequently, on the 17th day of September, Í900, all balances remaining due upon the tugs hereinbefore described were carried to an account opened up in the name of the Thompson Towing & Wrecking Association, and the accounts against the tugs closed. Defendant did not know of this transfer until after the commencement of suit.
.“After August 1, 1899, Thompson máde payments on the old accounts. In so far as these old accounts were concerned for work done or materials furnished prior to August, 1899, the plaintiffs never had any dealings with any individuals except Thompson, and plaintiffs knew that Thompson had for collection and coming in a lot of tug bills for services rendered by'these tugs prior to August 1, 1899, and Thompson told plaintiffs he would pay this money in when he collected it. No direct statement, however, was made by Thompson that he was making these payments, or that he claimed to be making them on his own responsibility, and not on behalf of the corporation.”

The judge reached the following conclusions of law:

“‘The method in which plaintiffs received payment of their bills for work done for defendant after August 1, 1899, was,not such implied notice as should in law charge them with knowledge of any limitation placed by defendant on Charles D; Thompson, in reference to his authority to contract and pay bills. Neither are the plaintiffs estopped by the course in which they received payments of bills subsequent to August 1, 1899, nor by the fact that they neglected for a considerable length of time to notify the Cleveland officers of defendant regarding bills due them for work done prior to August 1, 1899, from now recovering such sums as may be due them.
“ Plaintiffs had a right to rely on the presumption that Thompson and Boyton, from whom the stock had been purchased by the Cleveland parties, or Charles D. Thompson, defendant’s local manager, had notified the new stockholders of the existence of the claims for work done prior to August 1, 1899,”—

And rendered a judgment for the plaintiffs.

■ The case is brought here by writ of error. It is insisted by the defendant:

“1. That the dealings between the plaintiffs and Thompson amounted to a novation, in which the plaintiffs agreed to look to Thompson personally for this account, thereby releasing the corporation.
“ 3. That, if a novation be not established, the plaintiffs by their actions are estopped from now making claim against the defendant.”

As to the first of these claims, we think it may properly be said that it is not shown plaintiffs ever agreed to relinquish the defendant corporation and look to Thompson and Boynton for their debt, and no novation is shown.

Are plaintiffs estopped from making claim against defendant? It is insisted that by the manner in-which the business was done, by the changing of the form of the account on the books, by the rendering of the statements when Root asked for the outstandings, and the taking of the notes signed by Thompson, now that Thompson and Boynton are insolvent, plaintiffs are estopped. The question is not without difficulty. It must not be forgotten, however, that, when the debt was created, though the account was charged against the tug upon which the work was done, the debt was that of the defendant corporation. Later Cleveland parties, who are now the real defendants, saw fit to buy the tugs and business, but instead of taking bills of sale, for purposes of their own, thought it best to take over all of the stock of the defendant corporation, and for their protection entered into a secret contract with Thompson and Boynton to save the new owners from any of the then existing indebtedness.. It is true defendants claim that when Thompson ceased to be their local representative, through Mr. Root, they requested a statement of plaintiffs’ claim against the defendant corporation. Mr. Root’s testimony is vague as to what was said. He testified he asked for the outstandings. Plaintiffs give an entirely different version of what occurred and say they. did not understand a request was made for a statement of all of their claim against defendant corporation. But it is said plaintiffs looked to Thompson for their pay. It is a fact, however, that the plaintiffs never took his personal note, but those given by him purported to be the notes of defendant corporation. It would have been easy for the new officers elected, when the transfer of the stock was made by Thompson and Boynton, to have said to the plaintiffs that Thompson and Boynton were to pay the existing debts. It would have also been easy for Root, when he asked for the outstandings, to put his request in such form that there would be no doubt as to what he desired. Neither of these things was done. The debt when originally created was the debt of the defendant corporation, and we think nothing has occurred to change that relation or to prevent plaintiffs from asserting it.

Judgment is affirmed.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moóre, J.

license: Public Domain

text:
    BYERS v. ANDERSON.
    1. Landlord and Tenant — Possession of Tenant — Entry by ’ • Third Person.
    A former tenant of a farm, who claims rights in a crop of grass growing thereon, has no right to enter and forcibly obstruct the cutting of the same by the tenant who is in possession by authority of the owner of the land. Section 11153, 3 Comp. Laws.
    2. Evidence — Damages—Cost of Repairs — Hearsay.
    In an action for injuries to a mowing machine, plaintiff, who has not had the machine repaired, cannot testify to what some one told him it would cost to have it done.
    Error to Wexford; Chittenden, J.
    Submitted January 4, 1906.
    (Docket No. 9.)
    Decided March 5, 1906.
    Trespass vi et armis by Samuel Byers against Lester Anderson. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      John W. Patchin, for appellant.

      Gaffney & Pease, for appellee.
   Moóre, J.

John Anderson, the father of defendant, was the owner of a farm which, prior to the occurrences out of which this lawsuit grew, was leased by him to his son, the defendant in this case. Afterwards the land passed into the possession of the father; the defendant claiming, however, the right to enter thereupon and cut a field of grass which he had seeded when he was in possession of the farm. After Lester Anderson left the place John Anderson rented it to the plaintiff, who, with his family, moved into the residence which was upon the farm, and, with John Anderson, was in the possession of the entire place. A difference of opinion exists as to what their respective rights were therein, but they both agreed at the time that Lester Anderson had no rights there. The plaintiff, with the consent and under the authority of John Anderson, began to cut the field of grass before noon on or about the 30th of June. The defendant came to where he was at work and forbid his cutting the grass. While plaintiff was gone to dinner, the defendant secured five spikes and a cant hook, and. without the knowledge of the plaintiff stuck the spikes in the grass where the machine would be obliged to go if plaintiff mowed the field; and when the plaintiff returned and began his work the cant hook was put in front of the cutter bar of the machine in such a way that the knives struck the cant hook.

It is the claim of defendant that he stood before the machine and that it was driven down upon him and upon the cant hook. It is the claim of the plaintiff that defendant came up back of the cutter bar and thrust the cant hook over the cutter bar in such a way that the knives would strike it. The cutter bar also struck the spikdS that were concealed in the grass, and it is the claim of plaintiff that two of them were cut in two and the result was to greatly injure the machine. It was for that injury this suit is brought. The circuit judge instructed the jury that, if they found the machine was damaged, plaintiff was entitled to recover for whatever damage was done. The case is brought here by writ of error.

Two errors are assigned which are very strongly urged. Defendant sought to show under what arrangement he seeded the field, and what rights he had therein. He was not allowed to put in this testimony, and claims this was error. There is no dispute between the parties but that the father of the defendant and his tenant, the plaintiff in this case, were in the actual possession of the farm, and that plaintiff was doing what he did under the authority «of the owner of the farm. This being so, notwithstanding the defendant claimed the right to cut the grass when his right was disputed by those who were in possession, he had no right to enter upon the field and commit the acts which he admits he committed. See 3 Comp. Laws, § 11153, and the cases cited in the note.

The other assignment of error which is urged is that the court improperly allowed the plaintiff to testify what it would cost' to repair the-' machine. The testimony discloses that plaintiff continued to run the machine during the haying season, and that it had not been repaired at the time of the trial. It is the claim of the plaintiff the machine was seriously injured. It is the claim of defendant that the damages were only nominal, and he introduced testimony tending to substantiate his claim. Plaintiff was allowed to testify that one Connine told him that it would cost $25 to get the machine fixed. Upon the cross-examination he stated that he did not know of his own knowledge what it would cost, and that he only knew from what he had been told. A motion was then made to strike out his testimony in relation to what it would cost to repair the machine, which motion was overruled. We think this was error, as it appeared by the testimony of the witness that he was not competent to speak upon personal knowledge of what the expense would be, and only knew from what he had been told. The testimony was hearsay. .

For this reason, the judgment is reversed, and a new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    DIERKES v. WIDEMAN.
    1. Mortgages — Contracts— Consideration —Legality—Liquor License.
    A mortgage given to a brewing company to secure payment by a saloon keeper for rent, beer, and the money advanced for the license, which was taken out in the name of a third person, is supported by an illegal consideration.
    2. Same — Foreclosure—Pleadings—Issues.
    Where the answer to a bill to foreclose a mortgage asserts a want of consideration, proof that the mortgage was supported by an illegal consideration is within the issues.
    Appeal from Wayne; Donovan, J.
    Submitted January 4, 1906.
    (Docket No. 181.)
    Decided March 5, 1906.
    Bill by Frank Dierkes and Adam Klien against Julia Wideman to foreclose a mortgage. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      James H. Pound, for complainants.

      Malcolm McGregor and William D. Fox, for defendant.
   Ostrander, J.

Complainants are the proprietors of the Mutual Brewing Company. The bill is filed to foreclose a mortgage given by defendant to secure payment of her note given May 19, 1898, to complainants for $500, due one year after date, with interest at 8 per cent, per annum. From a decree dismissing the bill, complainants have appealed.

Stated in few words, the facts are that complainants set the husband of defendant up in the business of a retail liquor dealer, paying the tax, State and Federal; the license being issued to some person other than Wideman. Under the arrangement made complainants leased the place of business, gave the liquor bond, furnished the beer to be sold, and procured to be made some of the furniture to be used. Mr. Wideman was to pay for beer and on account of the license weekly. Wideman owned no property. The amount claimed to be due on the note and mortgage is made up of the following items: Beer, $261.30; rent, $277; license, $153.90; total, $692.20, with credits of cash on license, $153.90; on rent, $70.49; on beer, $100; total, $324.39. The addition of the interest claimed made the amount $421.25. The court below, in an opinion filed August 24, 1901, ordered decree for this amount. Later defendant filed a petition in the cause, calling attention to the opinion of this’ court in the case of Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649. Thereupon the decree appealed from was entered.

Upon the facts this case and the one above referred to cannot be distinguished. It is claimed that because the-answer does not set out the illegality of the transaction, but asserts want of consideration only, the defense actually presented should be disregarded. But the arrangement proven established the fact that the note and mortgage were not given for valid consideration.

The decree is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


text:
    WHEELER v. LASCH.
    1. Appeal — Jurisdiction—Settlement op Case — Time.
    The jurisdiction of this court to hear an appeal upon its merits is supported against the objection that the case was not settled within four months after the entry of the decree, where the record does not show when the decree was entered, but shows that it was granted September 18th, that the case was settled as of January 18th, and the certificate dated February ' 1st states that the case is in the same form submitted for settlement, except that amendments submitted on that date by defendants are inserted.
    2. Fraudulent Conveyances — Setting Aside — Evidence—Sufficiency.
    On a bill to set aside as fraudulent a conveyance to a bank and to the creditor’s wife, evidence examined, and held, to sustain a finding that the sale of the property was for its full value.
    Appeal from Wayne; Rohnert, J.
    Submitted January 4, 1906.
    (Docket No. 7.)
    Decided March 5, 1906.
    Bill in aid of execution by Frank D. Wheelér against Gustav Lasch, Elizabeth Lasch, the Detroit Savings Bank, and John Hardenbergh. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John H. McDonald, for complainant.

      Miller, Smith, Alexander & Paddock, for defendants.
   Ostrander, J.

The bill in this cause was filed in aid of execution issued upon a judgment obtained November 29, 1902, against defendant Gustav Lasch, and levied December 9, 1902, upon certain real estate in'the city of Detroit. The premises consist of a saloon, with living rooms above it, five 30-foot lots, and a strip of land 28.95 feet by 150 feet in dimensions. The indebtedness represented by the judgment has existed since on or about July 1, 1892.

The point is made in the brief for appellees that this court is without jurisdiction to hear this appeal because the case was not settled within four months from date of entry of decree; that, in any event, it stands for hearing here on the pleadings, orders, files, and decree alone. According to the record, the decree appears to have been granted on the 18th of September, 1903. When it was entered the printed record to which the brief refers us does not state. The case was settled as of January 18, 1904; the certificate stating that it is in the same form submitted for settlement, except that amendments submitted by defendants on that date are inserted. The date of the certificate is February 1, 1904. We conclude that the showing supports the jurisdiction of this court to hear the appeal upon the merits.

Defendant Gustav Lasch, on March 22, 1892, being then unmarried, mortgaged the premises in question for $2,000 to the Detroit Savings Bank. The bank had purchased and held a prior mortgage made to the Home Savings Bank. The bank foreclosed the mortgage made to itself, and bid in the property at the mortgage sale, made July 11, 1902, for the sum of $2,577.80. On July 29, 1902, Lasch was indebted to the bank on account of the two mortgages and certain notes in the sum of $5,549.33. On that day the bank released and canceled all but $4,000 of its claim, took from Lasch a quitclaim deed of the property, gave a quitclaim deed to Mrs. Lasch, and she paid the bank $1,000 cash of her own money and gave to the bank a purchase-money mortgage for $3,000. September 26, 1902, Mrs. Lasch sold to John Hardenbergh and his wife by executory contract for $2,500 a portion of the premises, being all of those described in the bill of complaint excepting the Bristol Place property, so called, and the contract vendees were in possession when complainant’s judgment was taken and levy made. It is claimed by complainant that the property conveyed to the bank and to the wife was and is worth about $12,000. Defendants by a supplemental answer set out the fact, and on the hearing proved that on March 28, 1908, Gustav Lasch was on his voluntary petition duly adjudged bankrupt. It is contended that this adjudication, made within four months after the levy of the execution, discharges the levy. It is further contended that the decree is right upon the facts.

The circuit judge found the property to be worth no more than $5,500. With this finding we agree. Independent of the testimony offered as to values of the property, there is undisputed evidence of its value. The release by the bank of a portion of its claim, and the price fixed upon the sale to the Hardenberghs, is such evidence. The Bristol Place property is valued by a witness for complainant at $3,500, and by defendants at $3,000. Defendants offered in open court to sell it for $3,000, and aii adjournment of two weeks was taken to give complainant an opportunity to accept the offer. It is agreed that Mr. and Mrs. Lasch have a home at, and a homestead interest in, this property. There is no reason for doubting the good faith of the sale to the Hardenberghs.

Upon the whole record it does not appear that the transfer to the bank and by the bank to Mrs. Lasch were fraudulent as to creditors of Gustav Lasch, or should be, for any reason asserted, set aside.

The decree is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


text:
    HEAGANY v. NATIONAL UNION.
    1. Death — Presumption From Absence.
    Where the issue is upon the life or death of a person once shown to have been living, the burden of proof lies upon the party who asserts the death; but after the lapse of seven years, without intelligence concerning the person, the presumption of'life ceases, and the burden of proof is devolved, on the other party.
    2. Life Insurance — Action—Disappearance of Assured — Question for Jury.
    Where, in an action against a life-insurance company, it ap- . pears that insured, an unmarried man of 26 years, who had been living in the family of his brother, left the place where he had been employed for several years, and has not been heard from by his mother and other relatives for over seven years, the question of his death is for the jury, though there is evidence from which the jury might find that he intended not to return.
    3. Same — Evidence—Mortality Tables.
    It is not error in such a case to exclude the mortality tables when offered in evidence, the expectancy of life of a man of insured’s age not being material.
    4. Same — Admission of Evidence — Harmless Error.
    The admission of a letter from defendant’s superior officer to the local officer in which he states that if assured does not turn up before seven years the order will be liable was not prejudicial, since a different verdict could not have been reached had the letter been excluded.
    Error to Saginaw; Snow, J.
    Submitted January 5, 1906.
    (Docket No. 28.)
    Decided March 6, 1906.
    Assumpsit by William M. Heagany against the National Union on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Humphrey, Grant & Smith, for appellant.

      James H. Davitt, for appellee.
   Ostrander, J.

The rule stated below seems to be substantially the rule of the text-writers upon the subject of principal controversy in this case:

“ Where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death. But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.” 1 Greenleaf on Evidence (15th Ed.), § 41.

See, also, Stephen’s Digest of the Law of Evidence (Mich. Ed. 1903), p. 484; 1 Woerner on American Law of Administration, § 207; 1 Jones on Evidence, § 57. It may be said that this rule has been recognized by this court. Bailey v. Bailey, 36 Mich. 181; People v. Eaton, 59 Mich. 559.

In the case at bar there was testimony, undisputed, tending to show that the alleged decedent, an unmarried and healthy man, 26 years of age, who lived in the family of his brother at Saginaw, where he had been employed from September, 1893, left Saginaw in May, 1897, and has not since returned or been heard from, either by his relatives at Saginaw, his mother and sister at Geneva, N. Y., or his brother at Chicago, with the exception that a day or so after leaving he sent certain leases from Flushing to plaintiff, with a memorandum to the effect that he would send for his clothes, and requesting plaintiff to pay some small bills for him and he would send the money in a few days; that inquiry for him had been made at places where he had formerly been employed and elsewhere; that he left wearing apparel and money due to him at Saginaw, and had property interests, in expectancy, at least, in New York. There was also testimony from which the jury might perhaps have inferred an intention not to return to Saginaw, but to engage in business or to seek employment at some place not designated. The testimony falls short of the facts considered in some cases (Wentworth v. Wentworth, 71 Me. 72; Loring v. Steineman, 1 Metc. [Mass.] 204; Policemen’s Benev. Ass’n v. Ryce, 213 Ill. 9), in that the person here supposed dead left behind no home or family of his own to which or to whom he might be expected to return. I find no case holding that an expressed intention to return is essential, and there are many cases in which the fact that no intelligence is received by those with whom communication would naturally be made is regarded as important. And the cases above cited are authority for submitting the testimony in this case to the jury.

It is complained that the court erred in giving the jury the following as a part of his charge:

‘ “I will say to you, gentlemen, as a matter of law, that if you find from the preponderance of the evidence in this case that Timothy J. Heagany, the insured, left his residence and bed and has been continuously absent therefrom for a period of over seven years without any intelligence being received by his relatives, the members of his family, of his whereabouts by his neighbors and acquaintance, within said period or at any time thereafter, then such continued absence, together with such lack of intelligence, raises the presumption of death of said Timothy J. Heagany, and you upon such proof have a right to presume him dead at the expiration of seven years ”—

Because of the testimony referred to tending in some degree to indicate an intention not to return to Saginaw, and for the further reason that it made—

“Bare absence from Saginaw and failure of relatives to hear from him for a period of seven years sufficient to raise the presumption of death. ”

In connection with the testimony before the jury and the portion of the charge immediately succeeding that quoted, the rule stated was the proper one.

The question stated in defendant’s sixth request to charge was no more material than other questions in the case, was argumentative, and, so far as it was refused, should have been refused.

The assignments of error based upon the admission and exclusion of evidence are considered. It was not error to exclude the tables of mortality. The precise expectancy of life of a man of 26 years was not material.

A letter introduced on the part of plaintiff and received over objection was written by a superior officer of defendantto an officer at Saginaw January 24, 1899. It states the effect of payment and of nonpayment of assessments, and contains the following:

“In such a case nothing short of a showing that the . man is really dead could compel action to be taken by us in reference to the payment of the claim, on his life. If he does not turn up before seven years, I assume that the order could be held liable for his claim after that time.”

Evidence was introduced to show that assessments had been paid to defendant for about six months after the disappearance; that inquiry was then made of a local officer of the society, with a statement of the disappearance of the insured and the circumstances thereof; and a report of the matter made to the superior officer, whose reply letter is the one in question. The reply letter was shown to, or delivered to, plaintiff, who continued to pay the assessments. If it be conceded that the assumption of the officer who wrote this letter could in no way affect the company, it is not evident that defendant was prejudiced by the evidence. Upon the facts the case is not a doubtful one, and, excluding the letter, it is not to be expected that a different verdict would be returned.

The judgment is affirmed.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    LENTZ v. LENTZ.
    Cancellation on Instruments — Evidence—Sufficiency.
    On a bill by a husband against his wife to set aside a deed of their homestead executed by him to her, on the ground that it was procured by fraud, evidence examined, and held, insufficient to support a decree for complainant.
    Appeal from Wayne; Brooke, J.
    Submitted January 9, 1906.
    (Docket No. 32.)
    Decided March 5, 1906.
    Bill by William Lentz against Wilhelmine Lentz to set aside a deed alleged to have been obtained by fraud. From a decree from complainant, defendant appeals.
    Reversed, and bill dismissed.
    , Complainant and defendant are husband and wife. They were married March 24, 1891. He was a widower with two children. She had been married twice. Her first husband, by whom she had one child, is dead. She was divorced from her second husband, by whom she had three children. On September 7, 1891, they purchased the land in question (40 acres); the deed being made to them as joint tenants. The purchase price was $1,500. Three hundred dollars was paid in cash. They assumed a mortgage of $800, then upon the land, and gave their joint note for $400 to the grantor. Subsequently they gave a new mortgage and note for $800, with the proceeds of which they paid the first mortgage. On March 5, 1897, she filed a bill for divorce against complainant, charging him with extreme cruelty, consisting of the use of vile and opprobrious names and openly charging her with criminal intimacy with men. On April 14th following he executed a deed of all his interest in said land to the defendant; she assuming and agreeing to pay the above-mentioned mortgage. The divorce suit was then -discontinued, and they resumed marital relations. At that time none of the principal upon said mortgage had heen paid, and the note for $400 had been reduced to $325. The deed was recorded August 6, 1897. On April 20, 1904, complainant filed this bill to set aside said deed on the ground of fraud and “want of legal delivery.” The -case was heard upon pleadings and proofs taken in open court, and a decree granted to the complainant, unless the defendant should pay him $700 within 20 days, and if so paid complainant was then to “deliver to her a bill of sale ■of all his interest in the personal property on the farm, and stipulate that all suits between the parties, or growing out of the dispute between them as to such personal property, be discontinued.”

      Ari JE. Woodruff (W. F. & Frank W. Atkinson, of counsel), for complainant.

      Jay Fuller, for defendant.
   Grant, J.

(after stating the facts). The pleadings make no issue upon the title to the personal property, and that is not involved in this suit. Complainant asserts in his bill that he and his wife went to the office of an attorney to draw the deed; that he signed the deed in blank, the attorney agreeing to fill it in in accordance with the parol agreement, which was then stated to him. This agreement he sets fprth as follows:

“To execute a conveyance of said homestead to said defendant upon condition that said conveyance should not take effect and become operative until the death of your orator, and that said defendant should, as a part consideration for a conveyance of said homestead to her, pay to each of his children of- your orator the sum of five hundred dollars, payable after the death of your orator.”

In his bill he states that he, with his former wife and children, resided upon and occupied this land as a homestead; that immediately upon his marriage with the defendant she began and continued to importune him to convey the land to her; that about ten days before filing his bill the defendant, aided by her two sons, forced and compelled him to vacate and quit said homestead. He conceded in his testimony that none of these statements are true. In his testimony, instead of the agreement to pay each of his children $500 apiece, he testified that it was $500 in all, or $250 apiece. He also testified that if she died first he was to have $300, if they wanted him to get off the place, and that her children would have to pay this in addition to the $500.

Making all due allowance for his ignorance, the discrepancies between the allegations of his bill and his testimony are too glaring to entitle his testimony to much weight. Defendant was a hard-working woman, and complainant admits that she worked upon the farm besides doing her household work. Each paid one-half of the $300. The mortgage and note have been paid, and each claims to have made the payment. We think it is established by a fair preponderance of the evidence that she paid substantially the entire amount out of her own money. It is unnecessary to go into the details as to where she obtained it. The attorney who drew the deed and the defendant both testified that the deed was read over to the complainant. There is no reason apparent upon the record why the attorney should insert in the deed provisions other than those agreed upon. Whatever may be said against the attorney, there must have been some motive for his conspiring with the defendant to defraud the complainant, and none is even suggested. Complainant is 69 years old; the defendant, 58. He left his home of his own free will. She alleges in her answer that she has never refused him a home on said land, and that she wants “him to come home, live with and help her.” The most sensible thing for these old people to do is to settle their difficulties and live upon this homestead in peace the rest of their days.

Decree reversed, and the bill dismissed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    LACOMB v. GODKIN.
    1. Costs — Security—Justice’s Court — Waiver.
    The right to require security for costs of a plaintiff in justice’s court is waived, by pleading and going to trial on the merits.
    2. Same — Special Appeal — Procedure.
    Where defendant in justice’s court takes a special appeal on the ground that the court erred in overruling his motion for security for costs, he having pleaded the general issue and gone to trial on the merits after the overruling of his motion, the proper practice to raise the question is to move for security in the circuit court.
    Error to Bay; Shepard, J.
    Submitted January 10, 1906.
    (Docket No. 47.)
    Decided March 5, 1906.
    Assumpsit in justice’s court by David Lacomb against John Godkin for work and labor. Plaintiff recovered judgment, and defendant appealed to the circuit court.. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    This action of assumpsit for work and labor originated in justice’s court, where plaintiff recovered a judgment for $54.75. On the return day of the summons, and after plaintiff had declared orally, the defendant moved for security for costs. The motion was denied, and thereupon the defendant pleaded the general issue, with notice of set-off and recoupment, and proceeded to trial. Defendant then took a special appeal; the ground of the special appeal being that the court erred in overruling the motion for security for costs because the plaintiff was a nonresident of the county. Upon the trial in the circuit court defendant moved to dismiss the suit for lack of jurisdiction in the justice to try the case. The court denied the motion, and the case went to trial before a jury.

      Lee E. Joslyn, for appellant.

      James Donnelly, for appellee.
   Grant, J.

(after stating the facts). It does not appear from the return of the justice that any evidence was produced before him that the plaintiff was a nonresident. Counsel for both parties, however, have argued the case assuming that to be the fact, and that it was inown to the justice. It was decided in the early case of Parks v. Goodwin, 1 Doug. (Mich.) 56, that the failure of a nonresident to give security for costs before issue of summons was not jurisdictional, and the proper practice was held to be to move to set the process aside for failure to give security. Whether the motion to give security for costs is the equivalent of a motion to set the process aside we need not determine. By pleading to the merits and going to trial the defendant waived security in the justice’s court. This court has repeatedly held that where a defendant denies a proper service of summons, and moves to quash for that reason, he waives the question by pleading to the merits and proceeding to trial. Dailey v. Kennedy, 64 Mich. 208; Sherwood v. Ionia Circuit Judge, 107 Mich. 136; Gunn Hardware Co. v. Denison, 83 Mich. 40; Waldron v. Palmer, 104 Mich. 556.

Besides, as the justice had jurisdiction under Parks v. Goodwin, the appeal gave the appellate court jurisdiction, and the proper practice would have been to move for security for costs in the circuit court.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    TOWER v. TOWNSHIP OF SOMERSET.
    .1. Drains — Highways — Natural Watercourses — Neighborhood Drain.
    A zigzag channel along a highway, formed by the elements in consequence of a sluice under the highway becoming obstructed, does not, merely by the highway officers neglecting to restore the sluice, become a neighborhood drain which abutting owners have a right to insist shall carry the water that formerly came upon their land through the sluice.
    "2. Waters and Watercourses — Highways—Surface Waters —Flowage.
    Abutting owners cannot compel highway officers to restrain surface water from flowing naturally across the highway onto their land.
    .3. Same — Estoppel.
    Highway officers are not estopped from restoring a sluice, by means of which surface water is conducted under the highway onto complainant’s land, by the facts that, at the time the sluice became obstructed, the land on both sides of the highway belonged to the same person, and, at the time complainant acquired his title, the water was accustomed to find an outlet without crossing the highway. .
    4. Chancery Appeals — Record—Prolixity.
    The habit of printing the entire stenographer’s minutes, even in chancery cases, without the elimination of immaterial testimony, repetitions, and arguments of counsel, is not to be commended.
    .5. Costs — Chancery Appeal — Prolix Record.
    Costs in chancery appeals being within the discretion of the court, only the expense of printing a fair proportion of an unnecessarily prolix record will be allowed on reversal.
    Appeal from Hillsdale; Chester, J.
    Submitted January 12, 1906.
    (Docket No. 62.)
    Decided March 5, 1906.
    Bill by Sherman L. Tower and Lewis E. Tower against the township of Somerset and Alfred Sutñn, highway commissioner, to restrain the construction of a sluiceway. From a decree for complainants, defendants appeal.
    Reversed, and bill dismissed.
    The bill of complaint was filed June 24, 1903, to restrain the defendant township and highway commissioner from constructing a sluiceway across the public highway from the north side of the highway to the south side, so that surface water would run upon the complainants’ land. The situation can better be understood from the accompanying plat.
    In June, 1889, one Jabin Strong owned the land immediately south of the highway, 212 acres, except the schoolhouse site of about one acre. He also owned 147 acres north of the highway, known as the Miner farm, separated only from the other by the highway. Complainant Sherman Tower owned 40 acres east of the north and south highway, as shown in the plat. In 1889, Jabin Strong deeded both farms to Robert and Homer Strong. In 1896, one Koon, by foreclosure proceedings, obtained title to both farms. In 1897, Koon sold the farm south of the turnpike to the complainants, and in 1898, he sold the farm north thereof to Robert Strong. On June 23, 1903, complainants obtained title to the schoolhouse lot. The land on both sides of the turnpike slopes to the south. Bundy’s hill is very steep, and in case of heavy rains the water comes down in large quantities to the highway. From the point where the water from Bundy’s hill strikes the turnpike to the 40-rod point, there is a fall of 34 feet. In its natural state the most of the water from Bundy’s hill and adjoining lands to the west flowed across the highway and onto the lands of the complainants, the most of it finding its way into the east pond. A part flowed north and found its way into Miner pond. The court finds:
    “ The surface waters from the side hill on the east part of the Miner farm formed washouts or small gullies which carries the water to and across the Chicago turnpike, about eight rods east of the point where the north and south road intercepts the turnpike; then the water flowed west to the corner, thence south in the north and south road on the east side of the drive about 15 or 20 rods, then it crossed the north and south road to the southeast corner of the schoolhouse lot; then on the Strong farm in a wash or gully into the east pond hole. The township

      authorities maintained a sluice across the Chicago turnpike, about eight rods east of the corners, and also across, the north and south road during all those years, and until June, 1892.”
    In June, 1892, there was a very heavy rain, called a-cloud-burst. The water poured down from Bundy’s hill, washed sand and dirt into the sluiceway, filling it up, and then turned west, running along the north side of the turnpike, cutting a zigzag ditch for itself down to what on the plat is known as 40-rod point, marked “ B.” From there some-of it at least, and at times perhaps all of it, flowed north into the Miner pond. From that time the township authorities did not repair or replace the sluice across the-turnpike, but contented themselves with repairing the roadbed so as to protect it against the waters flowing down this zigzag channel.
    Subsequently, and in about 1896, the water washed sand, etc., into the channel from the 40-rod point leading to Miner pond, washed out the highway, and ran onto complainants’ land, there washing out well-defined gullies as it had previously done on the land north of the highway. The highway authorities then let a contract to fix this, place so that the water would not run across the turnpike. This was not successful, and the water again washed out the turnpike at that point. The land on the northerly side of the turnpike is a foot higher than that on the southerly side. The flowing of the water across the turnpike at 40-rod point kept it in bad condition. All the surface water has not flowed down. this ditch or channel which the water itself made, but part of it has run over the highway onto the complainants’ lands. It would nearly all run there but for the highway. Jn 1903 the township authorities decided to build a sluice at point “0,” across the highway so that the water would flow onto the old schoohouse site and from there into the east pond. It was to restrain such action on the part of the township authorities that this bill is filed. The court found as a fact that the running of the water through this proposed sluice-way onto the defendants’ land would result in only nominal damages to them. Some of the witnesses were of opinion that the water would be a benefit to them. The court not only entered a decree restraining the construction of the sluiceway, but perpetually enjoining the township authorities —
    “From permitting said waters or any part or parcel thereof to flow across or over said Chicago turnpike upon the lands of said complainants, and from permitting said ditch or channel on the northerly side of the traveled part of said highway to become filled up or out of repair, or in such condition as not to carry and conduct the water along said course, and to prevent the same from crossing said Chicago turnpike, finding lodgment upon the lands of said complainants or any part or parcel thereof.”

      F. A. Lyon, for complainants.

      Frankhauser & Cornell, for defendants.
   Grant, J.

{after stating the facts). Complainants insist that this channel which the water had worn had become a neighborhood drain within Freeman v. Weeks, 45 Mich. 335, 48 Mich. 255. This case and that have no elements in common. In that case the ditch was dug by common consent. The defendant who obstructed it assisted himself in digging it.' The parties actively acquiesced in it. In the case at bar the elements had obstructed the original sluice through which the water ran and had worn out another zigzag channel along the highway. No active steps were taken to clean out the old sluiceway, and the public authorities contented themselves with repairing the highway when the water encroached upon it in this new channel. In heavy rains some of the water continued to flow over the highway. There is no evidence that the defendants or the owners had said or done anything which recognized the new channel as conclusive upon their rights. The abutting owners simply kept silence, and the township authorities endeavored to protect the highway from the encroachments of the water wherever it threatened the safety of travelers. Failing after repeated efforts to accomplish the desired results, the defendants concluded to reconstruct the old sluice. Yet it is now sought to, and the decree does, compel the township authorities to dam the surface water which runs down against the highway, so as to effectually prevent any running across the highway to the complainants’ land — not only that which could flow in the new channel, but also the excess which naturally flows across the highway, and to prevent such flowage for a distance of 40 rods. Even if the complainants could maintain an injunction at all, it could only be maintained against the quantity which flowed in the channel and not against the natural overflow.

Complainants insist that the natural watercourse, so diverted when all the lands belonged to one party, was continued until the title to the lands was. divided and the diversion recognized as permanent, and that they are therefore relieved from the servitude of the water. This is not a case between the owners of dominant and servient estates. The owners of the dominant estate are not parties to the bill. It is between the abutting owner owning the lower estate and the highway authorities charged with the duty of keeping the highway in reasonable repair for public travel. Complainants have obtained no right by prescription. Mathewson v. Hoffman, 77 Mich. 420, 433 (6 L. R. A. 349); Jones v. Van Bochove, 103 Mich. 101; Gould on Waters, § 279. But they insist that the highway authorities are estopped to now turn the water in the natural direction and where it had flowed prior to 1892. The channel made in 1892 at the 40-rod point, by which a portion of the water was turned into Miner pond, was closed in 1896 by the same elements.that closed the upper sluiceway in 1892. The gullies on the north side of the highway at this point do not come within 12 feet of the highway, while the gullies upon the south side come close to the highway line. All these gullies on both sides have been washed out without the action of man, but by the swift rush of the water in seeking outlets. Clearly the highway authorities have no right to there construct a dam and turn all the water upon the abutting owner upon the north. Neither have they the right to enter upon land and dig a channel for the water. If the owner •of both estates had dug a channel diverting the water, ■and afterwards had sold the servient estate with the water so diverted, undoubtedly he would he estopped to again turn the water onto the servient estate. Perhaps 'he would have been estopped if the elements had worn a channel on his dominant estate, and he had afterwards sold the servient estate. But does that rule apply to municipal authorities under the facts of this case ? A party can only be estopped where the other party is misled to his Injury. The complainants were fully cognizant of the situation. They knew when they purchased the servient estate of the natural flow of water over their lands; that some of it did still flow over; that the channel was not made by man, but by the elements, that it was the duty of the •township authorities to do everything which would not injure abutting owners to render the highway safe for travel. They have not been damaged. Why should the defendant be estopped and compelled to maintain dams to prevent the flow of water into its natural course upon complainants’ lands when they can receive no damage (Hotz v. Hoyt, 135 Ill. 388; McCormick v. Kinsey, 10 Pa. Super. Ct. Rep. 607; 2 Farnham on Waters and Water Rights, p. 963), and where the township authorities have acquired no right by prescription to dam the water back upon the upper proprietor ? 3 Farnham on Waters and Water Rights, p. 2635; Tootle v. Clifton, 22 Ohio St. 247. We think this is not a case for the application of the doctrine of estoppel, and that the defendants were in the performance of a legal duty and right in the construction of this sluice.

“ Highway commissioners have the right to have the surface water, falling or coming naturally upon the highway, drain through the natural and usual channel upon and over the lower lands,” and may construct drains or ditches for that purpose. 2 Farnham on Waters and Water Rights, p. 969.

One of the counsel apologizes for this prolix record. .We think it is unnecessarily long. In settling the case-much of the testimony and many of the remarks of counsel could have been eliminated, and much time and labor saved in the examination of the record. The habit of printing the entire stenographer’s minutes, even in chancery cases, is not to be commended. It is true that the-case is to be heard in this court de novo, but the elimination of immaterial testimony, repetitions, and arguments-of counsel, and a condensation of the record, aid the court-materially in reaching the essential facts. The costs being in the discretion of the court, it is ordered that the appellants recover only half of the cost for printing the-record.

Decree reversed, and the bill dismissed.

McAlvay, Blair, Montgomery, and Ostrander., JJ., concurred.


text:
    LEE v. LIVINGSTON.
    1. Ejectment — Location of Land — Evidence.
    Where the declaration in ejectment describes the land correctly, and a patent from the government, also describing it, is-introduced in evidence by plaintiff, and not disputed or questioned, a claim that it is not shown that the land is in the county in which the venue is laid is untenable.
    2. Same — Title of Plaintiff.
    Where plaintiffs in ejectment introduce in evidence, and claim title under, a patent which is not questioned or disputed, a. claim that plaintiffs are not shown to have had an interest in the lands at the time of beginning suit is without merit.
    3. Appeal and Error — Questions Review able — Questions not-Raised Below.
    A question not raised in the trial court will not be considered on error.
    4. Ejectment —Judgment for Plaintiff — Defendant’s Interest.
    Defendant in ejectment is not injured by an error in rendering judgment for joint plaintiffs wherein their several interests, are not correctly stated.
    5. Tenancy in Common — Rights of Tenant — Lease.
    One tenant in common cannot make a valid lease of the entire premises.
    6. Adverse Possession — Tenancy in Common — Lease—Tax Title.
    Where a defendant in ejectment claims title by virtue of possession under a tax deed and that a lease under which he entered was abandoned by agreement with the tenant in common under whom he entered, it is the character of his entry and not the person with whom the lease was made that controls.
    7. Same — Tax Title — Entry.
    Entry under a tax title, or something equivalent thereto, is necessary to set in motion the limitation in favor of a tax title purchaser found in section 73 of the general tax law, as amended by Act No. 262, Pub. Acts 1899.
    8. Same — Tenancy in Common — Character of Entry.
    Entry under a contract with a tenant in common of lands is not hostile to their title whether the contract, being made with only one of them, is. binding upon them or not.
    9. Same — Change op Character op Possession.
    Where the owner of a dower interest in lands, unassigned, ■assumed to demise the entire premises to defendant, and he entered under the contract, his possession could not after-wards become hostile to the title of the owners of the fee by agreement of acquiescence of the owner of the dower interest.
    10. Taxation — Tax Title — Setting Aside — Improvements. Where, in ejectment against one claiming under a tax title,
    plaintiff recovers without an adjudication as to the validity of the tax title, no question as to defendant’s improvements made upon the land arises.
    Error to Mackinac; Shepherd, J.
    Submitted January 12, 1906.
    (Docket No. 65.)
    Decided March 5, 1906.
    Ejectment by Margaret Lee and others against Anthony Livingston and Mary Livingston. There was judgment for plaintiffs on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Louis H. Fead, for appellants.

      Henry Hoffman, for appellees.
   Ostrander, J.

The action is ejectment. Plaintiffs, who are respectively widow. and heirs of Joseph Anderson, deceased, had verdict by direction of the court and judgment. Plaintiffs’ title is by patent from the United States, issued August 6, 1889, upon a homestead entry. Defendants, who are husband and wife, claim the title through a tax deed for the taxes of the year 1894, issued May 24, 1898, upon a'purchase made September 13, 1897, by defendant Anthony Livingston. October 21. 1896, plaintiff Margaret Lee, her husband, John Lee, joining in the lease, by a writing, leased the land to Anthony Livingston for three years; the consideration being payment of the taxes each year and the seeding down of the place. The writing was not signed by either of the defendants. Several of the plaintiffs are infants. Some improvements were made by defendants, for the value of which a claim was filed. Defendants gave notice, also, with their plea, that they would prove five years of actual and undisputed possession under said tax deed. The learned trial judge was of opinion that having entered upon the land under the said lease, the defendants were not permitted to set up a title in themselves without first yielding possession; that there was no evidence of such surrender and therefore defendants were to be treated as being in possession under plaintiff’s titl,e. This ruling disposed, also, of the claim for improvements. The main question is raised by this ruling. Minor questions raised are (1) that it was not shown that the land is in Mackinac county; (2) that plaintiffs were not shown to have an interest in the lands at the time of beginning suit; (3) that the proof shows that Joseph Anderson had eight children, one of whom died, but whether before or after her father does not appear; that, consequently, the recovery permitted of an undivided one-seventh of the land in fee by each of the plaintiffs other than the widow is ,not supported by the evidence.

There is no merit in any of these objections. The patent describes the lands in question and the undisputed proof is that they were occupied by Joseph Anderson and later rented to Livingston. The description in the patent and in the declaration is of land in Mackinac county. Plaintiffs put in evidence the patent and claimed title under it. It is not disputed or questioned by evidence. The third point was not raised in the court below. In any event, defendants are not injured.

As to the main question. Defendant testified that he moved upon the land in April, 1897; that nothing was said about back taxes, but he was to pay taxes for 1896, 1897, 1898, and 1899; that he supposed he had signed the lease until he gave it to his attorney in this case. The present Mrs. Livingston did sign the paper as Mary McAlpine, but as a witness merely. That he knew plaintiffs, had known Mrs. Lee for upwards of 20 years; that, in the fall of 1896, he —

“Rented the place occupied by the Andersons at the time of Joseph Anderson’s death. We agreed that I was to rent the place, I was to pay the taxes on the place for eaph year for the use of it; and there was nothing said, about the 1896 tax, but the 1896 tax, I said I would pay. I said this when I made out the lease. * * * At the time this lease was made out, we had some talk relative to who should make out the lease. * * * I told her £Mrs. Lee] to go to a justice of the peace and have it made out, or somebody that understood it. She said, no, we could make it out between ourselves, it would do just as well.”

Defendants offered the tax deed in evidence, and gave no other or further proof of title, and they assert that having occupied under it for five years or more it is a good title. What ruling should be made if defendants had gone further and established the validity of the title asserted, or had given the notice required by section 140 of the general tax law (Act No. 229, Pub. Acts 1897) — Adkin v. Pillen, 136 Mich. 682 — need not be determined. They further assert, and the testimony warranted the jury in finding, that Mrs. Lee and other of the plaintiffs, but not all of them, knew and assented to the abandonment of the agreement under which defendant entered and knew of and acquiesced in his claim of right under the tax deed. From these facts it is argued that having made the contract of leasing with Mrs. Lee only, defendant did not occupy the relation of tenant with the other plaintiffs and was under no obligations to inform them of the character of his holding or his claim of ownership. One tenant in common cannot make a valid lease of the entire premises (Moreland v. Strong, 115 Mich. 211), and none of the plaintiffs except the widow were bound by the lease which was made. Nevertheless, upon the question here, it is the character of defendants’ entry, and not the person with whom the lease was made, which must control. And although the defendant owed no duty to pay the tax of 1894, which had become a lien upon the premises before his entry, an entry under the tax title, or something equivalent to an entry, was necessary to set in motion the statute of limitations (section 73 of the general tax law, as amended by Act No. 363, Pub. Acts 1899), to the benefit of defendants. Gilman v. Riopelle, 18 Mich. 145; Reilly v. Blaser, 61 Mich. 399; Sands v. Davis, 40 Mich. 14. The owner of a dower interest, unas.signed, assumed to demise the entire premises to defendant. He entered under the contract. Whether the agreement was or was not binding upon the owners of the fee, the entry made was not hostile to their title. Nor after entry could it become hostile as to them by the agreement or the acquiescence of the owner of the dower interest. It is not claimed that all of the fee owners had notice, express or implied, of any change of relations during the period of the demise. It is not claimed that five years elapsed between the expiration of the lease and the beginning of suit, and no question is raised of the right of defendants to assert the tax title after the expiration of the tenancy. As the tax title has not been set aside, there is, properly, no question here of improvements made on the land.

. The court reached a proper conclusion, and the judgment is affirmed.

McAlvay, Grant, Blair, and Montgomery, JJ., «concurred.


author: Moore, J.

text:
    POPPLETON v. POPPLETON.
    Gifts — Evidence—Sufficiency.
    On a bill for an accounting for the principal and income of certain real-estate mortgages, claimed by plaintiff as a gift from her mother, evidence considered, and held, sufficient to establish the gift. •
    Appeal from Oakland; Smith, J.
    Submitted February 2, 1906.
    (Docket No. 98.)
    Decided March 5, 1906.
    Bill by Ella Poppleton against Edgar C. Poppleton for an accounting. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Van Zile & Brownson, for complainant.

      Patterson & Patterson, for defendant.
   Moore, J.

The complainant seeks an accounting from the defendant for the principal and income from certain real-estate mortgages. The ownership of these mortgages prior to September 6, 1893, was in Sarah Poppleton, the mother of complainant. The complainant claims that on September 6, 1893, her mother transferred to her by written assignments, as a gift, six real-estate mortgages, representing $5,000 in value; that complainant delivered them to the defendant as her agent, with instructions to collect the interest therefrom and to redeliver the same to her when called for; and that he refuses to do so.

The defendant claims Sarah Poppleton did not intend to transfer absolutely the principal of a fund to complainant, but only the income therefrom during her natural life; that instead of an absolute gift to complainant on September 6, 1893, of the mortgages representing such a fund, Sarah Poppleton created by parol a trust by which the complainant was to receive the annual income from $5,000, to be selected from securities belonging to Sarah Poppleton, for life, and upon complainant’s death the principal of the fund was to be divided between Edgar C. Poppleton and Herbert A. Poppleton, two brothers of complainant.

The prayer, of the bill of complaint is for an accounting, and that defendant be decreed to deliver to complainant the mortgages, notes, assignments of mortgages, securities for money, and other papers which represent the real transaction. The circuit judge rendered a decree in favor of defendant. The case is brought here by appeal.

The question involved is one of fact. The oral testimony is very contradictory. The complainant testifies positively to the agreement, and that assignments were made to carry it into effect. Her testimony is corroborated by Mary Poppleton, the divorced wife of defendant. Their testimony is contradicted by defendant, by his mother, who was 90 years old when she was sworn and whose testimony indicates her memory is defective, and by the testimony of the brother, Herbert, who will profit if the contention of defendant is sustained, and who wrote a letter in June, 1900, which is inconsistent with his present version of the transaction. Did the case depend upon the oral testimony, we- might well hesitate to disturb the conclusion reached by the trial judge. There are, however, a number of writings to which we attach great significance. There appears in the case a paper in the handwriting of the defendant reading as follows:

Milo Ware........ $500 — 8

George Predmore. - 1,526 — 8

Wm. T. Armstrong 300 — 8

Schuyler, E. S.____ 1,000 — 7

Bell, J. A......... 1,200 — 7 semi

O. T. Jenks. ....... 475 — 7 “

$5,001

Wheeler .. §500 — 8

Niles______ 850 — 74

Tanner ... 250 — 8

Hagerty .. 600 — 74

Brown____ 800 — 74

Adair..... 250 — 8

Atwell____ 340 — 8

Freiberger 800 — 74

Greenleaf . 400 — 8

Bogert____ 225 — 8

§5,015

The complainant says this paper was delivered to her by her brother at the time of the transaction, with a statement from him that the first six mortgages belonged to her and- the others to him. She also testified all were assigned so as to accomplish those objects. There also appears in the record an assignment by the mother to the complainant of the Milo Ware mortgage, the acknowledgment of which was taken before the defendant as notary public, dated as of September 6, 1893. ' The witnesses to this assignment are the defendant and Mary B. Poppleton, now divorced from him. Later the defendant caused this mortgage to be foreclosed in the name of the complainant, It was bid off in her name, and a sheriff’s deed made to her. For a series of years thereafter defendant paid the taxes upon the farm, and each year charged the amount thereof to the complainant. June 30, 1894, defendant prepared a paper, the first line of which reads, ‘ ‘ List of securities belonging to Ella Poppleton,” in which it is stated, “ 1st lot rc’d here,” and then follows a list of ten mortgages and two items of bank credits, aggregating nearly $8,000; then follows a second list, aggregating upwards of $16,000; then securities amounting to about $15,000. This is followed by the following:

Added by mother Sept. ’93:

Feb. 1, ’92. Jenks Mtg., 7 :S semi-an_____________ $475 00

May 24, ’92. Bell Mtg., 7 semi-an______________ 1,200 00

26, ’90. Ware Mtg., 8ii___________ 525 00

Aug. 14, ’88. Armstrong Mtg., 8#________________ 300 00

27, ’91. Schuyler, R. S.,7$________i....... 1,000 00

Oct. 26, ’93. Predmore, 7-J-’, new Mtg._______1,526 00

Later another list was prepared by him of substantially the same character. In the latter part of the year 1894 the correspondence shows complainant made some criticisms of defendant’s management and began to withdraw her funds. His letters indicate he felt hurt by this action. It is quite significant that in a paper dated July 1, 1895, prepared by defendant, headed “ List of Securities Belonging to Ella Poppleton,”.he calls the six mortgages in controversy “mother’s list:” In a paper of later date, purporting to be an account between complainant and defendant, under the last date he uses the words, “ The list with mother is,” and then follows the list of the six mortgages. The papers in the case which were prepared by defendant before any differences arose between the parties are consistent with the version of the transaction given by complainant, and, unexplained, are utterly inconsistent with defendant’s version. His explanation of how these papers came into existence in the form in which they now are does not satisfy us. We think the complainant fully established her case.

The decree of the court below is reversed, and one may be entered here in accord with this opinion. Complainant will recover costs of both courts.

McAlvay, Blair, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    PETERSON v. REICHEL.
    1. Logs and Logging — Contracts—Breach—Scale—Question for Jury.
    In assumpsit on a logging contract, whereby defendant agreed to pay a certain price per thousand feet for the logs cut, the amount to be determined by a scale to be made by some person to be agreed upon, evidence examined, and held, that whether plaintiff agreed in the selection of the person who made the scale on which defendant relied was a question for the jury.
    2. Same — Fraud and Mistake.

      Held, that there was evidence from which fraud or mistake in the scale might be inferred.
    3. Same — Scale—Competenoy.
    A scale made by plaintiff was admissible in evidence, he having testified that he had been in the lumber business for over 20 years, had observed the scaling of logs, could make a, fairly accurate scale in fairly sound logs, and that the logs in question were very sound.
    Error to Marquette; Stone, J.
    Submitted January 24, 1906.
    (Docket No. 223.)
    Decided March 5, 1906.
    Assumpsit by Peter C. Peterson against George Reichel, Adam Reichel, and Henry Reichel, copartners as Reichel Brothers, for breach of a logging contract. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Button & Heffernan, for appellants.

      Young & Bell, for appellee.
   Hooker, J.

The defendants are the appellants. Being the owners of timber lands, they entered into a written contract with the plaintiff, whereby the latter undertook to cut and make logs of the pine trees standing upon the lands at a fixed price per thousand feet; the amount of logs to be determined by a scale to be made by some person to be agreed upon. A scale was made by one Doyle, an experienced man, who was sent to do it by the defendants. His scale was not satisfactory to the plaintiff, who then scaled it himself, and brought this action to recover the price of the difference in amount between the scales, and a small item for a share of Doyle’s compensation, deducted by the defendants when they paid plaintiff the •amount shown by Doyle’s scale to have been his due. The errors discussed in appellants’ brief are:

(1) That the court should have instructed the jury that Doyle was a scaler, upon whom the parties agreed, •and that it was error to permit the jury to find otherwise.

(2) That it was error to allow the jury to consider the question of a fraudulent or mistaken scale by Doyle, the case not having been tried upon such a theory, and no evidence indicating fraud or mistake.

(3) That the testimony of the plaintiff as to the scale made by him was erroneously admitted, for the reason that his testimony showed that he was an inexperienced and incompetent scaler of logs, and that it was error to permit the jury to consider his testimony.

The plaintiff testified:

“ I never agreed with Mr. Reichel upon any scaler to scale these logs. Mr. George Reichel brought a man to scale them December 12th, on which day I came down in the woods aboui; 5 o’clock in the afternoon and found George Reichel and two men scaling over on the skid-ways. Mr. Reichel said that he came there that day to scale and brought his men along, and he went on over on to the next skidway and pulled out a letter from somebody, some lumber inspector, I guess, or some man in Menominee, to recommend this scaler that he had there —to recommend this scaler that he had there, to recommend him as a competent man — and I read it, and says to him: ‘ That is all right as far as it goes. If the scale is all right, the scaler is all right; and, if it is not, he ain’t.’ And I turned around and went to my men skidding and he went over to the scalers again, and they kept on scaling. This man who was doing the scaling was a Mr. Doyle. I never met him before to my knowledge, or iieard of him before. The logs were decked up on skid-ways, and the scaling was commenced on the E. £ of N. E. £ of section 32. On the completion of the scale on this description, I got a report from Mr. Reichel about December 20th. When I got this report I knew that I was not getting the scale that I felt I was entitled to. It did not state the number of logs on the scale bill, but the scale stated the number of feet, and my foreman had counted the logs, and I knew by the experience I had had that it wouldn’t take over six logs to the thousand — it wouldn’t take near that, either. So the next morning I took a. man with me, and we went out, and I scaled them over again. After I had done that I met Mr. Reichel out here on the other side of Deer Lake and I told him how it was. I met him on the 3d of January. I told him that I could not take the scale — it was out of reason altogether. Mr. Reichel replied that his scale was all right — it overrun the-estimate of the timber. He was sure it was right. I asked Mr. Reichel at that time to agree with me upon some scaler who was satisfactory to both, but he said there was not anybody to be got — they were all busy. That is all the satisfaction I got out of it. I don’t recollect when I. next saw Mr. Reichel about the scaler, but I was at him most every time I saw him. I wrote a letter to ReicheL Bros, as follows:
“ ‘ Ne&aunee, Mich., Jan. 30, 1903..
“ ‘Mess. Reichel Bros.,
“ ‘Marquette, Mi'oh.
“ ‘ Gentlemen: I have notified you several times verbally heretofore, and I now notify you formally in writing, that the scale of logs made by John Doyle, as reported to me by you, on our contract of ‘ October 10, 1902, for taking out logs by me for you on sections 32, 34, and 36, town 49 north, range 28 west, is not satisfactory to, and will not be accepted by, me as correct.' Under our contract the scaler of these logs must be mutually agreed on, and you have caused him to make the scale without consulting me. I want a-fair scale and offer to meet you at any time and place you may name to agree on a scaler satisfactory to both of us, who shall scale all the logs taken out under this contract before the logs in the river become mixed with those taken out by other parties. Unless this is done, and if you persist in scaling with a man of your own selection, then I shall have these logs all scaled by a competent and fair man and shall expect you to pay me for all I take out. I have already had the logs taken out correctly scaled for my own protection.
“ ‘Yours respectfully,
“ ‘P. C. Peterson.’
“ I had several conversations with George Reichel after I sent this letter in regard to a scaler to scale the logs. He made the reply that he could not get any scalers. After that time I met him once down in Mr. Clark’s office. I offered to scale the logs at the hoist. The logs were in the river somewhere at that time above the hoist, and they all had to come out over the hoist to get to Marquette. I should think it was practicable to scale all the logs as they came over the hoist. They scaled them all on the cars there. They scaled them right along that way. Mr. Reichel replied to this it would take too long and be too much expense. That is the reason he gave.”

The defendant’s testimony was not in accord with this, and tended to show that plaintiff acquiesced in the selection of Doyle. We are of the opinion that it was not erroneous to leave this question to the jury.

The court charged the jury that:

“If you believe from the evidence that the defendants procured John Doyle, an experienced woods scaler, to scale the logs in question in the woods, or on the bank of the stream, as provided for in the contract, and that they notified the plaintiff that they had procured such scaler, and asked him to be at the place of scaling at a day appointed for the scaling, and that said Peterson acquiesced in such arrangement and was at the banking ground on the day that John Doyle began scaling* and watched his method of scaling and expressed his satisfaction therewith, he cannot repudiate such scale. That is true, gentlemen, he cannot repudiate such scale, if such were the fact, provided there was no fraud or mistake in the scale of Mr. Doyle. Now, gentlemen, look the case over, and if you are able to say that there was a scaler agreed upon, that Mr. Doyle was agreed upon as a scaler, and that his scale has been free from fraud or mistake, then the plaintiff cannot recover here upon this logging contract at all.”

And again he said:

“ Now, as I say, you want to get at the truth of the matter as to this scale. So, in the first place, say whether or not a scaler was agreed upon. If agreed upon, and his scale is honest — no fraud or mistake in it — then there can be no recovery. If not agreed upon, but it is correct, then there can be no recovery upon the logs. * * *
“Now, gentlemen, if you should find that the defendant is right in this matter, and that the scaler was agreed upon, — that Mr. Doyle was agreed upon, and that his scale was free from fraud or mistake, — then there could be no recovery upon the logging contract, and the defendants would have a right to make the charge which they have, of $37.50, one-half of the scale bill; that is, in case you find that the scaler was agreed upon. * * *
‘ ‘ That is upon the theory that this scaler was not agreed upon, but that his scale is correct. For, in that event, he would be the scaler for Mr. Reichel; and, if it happens to be a correct scale, he would have no right to charge up one-half of his wages to Mr. Peterson, the plaintiff, for that was only in case a scaler was mutually agreed upon. So, I think, gentlemen, you understand it was this scaler agreed upon ? Is the plaintiff correct when he says that this is the quantity gotten out, and that he has never received pay for this entire quantity of logs gotten out on section 32 ? ”

In the case of Ortman v. Green, 26 Mich. 215, our predecessors said:

‘ ‘ It does not seem to be supposed that there was any intentional fraud or misconduct in any one. But there was evidence, which the plaintiff in error had a right to argue tended to prove either incompetency or mistake— or, if he chose so to urge, fraud — in the scaler. He was not allowed to rely on it, except to show fraud. And this, we think, was error.
“ There was already in the case undisputed evidence of two serious mistakes; one in the count of the logs, and one in the footings of amounts. There could be no differ^ ence of opinion as to the materiality of the further deficit, if it existed to the extent claimed. And, while it was a question for the jury, it was one quite pertinent and proper, whether such a difference between two scales could be accounted for without fault or mistake. How many of the footings were right, and how many wrong, does not appear; but such mistakes in figures rendered it quite possible that further scrutiny might disclose others, on the face of the bills. But the method of scaling renders further mistakes quite possible to a careless reckoner.
“The scaling involves two processes; one of measurement and computation by figures, and one of judgment, depending on knowledge and experience. The length and diameter of each log furnish data for determining its contents as not exceeding a certain amount. An examination of defects and irregularities enables the scaler to make such allowances as are likely to be necessary, to arrive at ;a near estimate of the lumber that will actually be realized from it. And the only need for an experienced scaler is to get a safe approximation to the allowance necessary for the defects. A mistake in the purely mathematical portion of this work, whether by misreading or wrong computation or mismeasurement, would affect the result quite as seriously as a mistake of judgment. And, if it should turn out that the variance was too great to be reasonably referred to a mere error of judgment in a competent -scaler, it could not fail to proceed from such a cause as would render it improper to hold any one bound by it.”

It is said that the case was not tried upon the theory of fraud or mistake, but the charge indicates that it was, and "there was testimony from which they may have been inferred, under the rule laid down in Ortman v. Green.

The claim is made that the plaintiff’s testimony showed that he was not a competent scaler. He testified:

“In the month of December, 1902, I made my own personal scale of these logs on the E. £ of. the N. E. ^ of section 32. The scale was kept in writing, and I have it here. I have been in the lumber business, since 1884, -every, or nearly every, winter since then. During that time my experience in handling, scaling, and ascertaining the scale and watching the scaling of logs is that I have been jobbing all the time taking out logs by the thousand. I have not made my own scales. I generally had scalers, but lots of times I have scaled, and I was interested in scaling all the time. I think I am able to make a fairly accurate scale in anything like sound logs. Fairly sound logs I could scale all right. These logs were very sound ■ones. The logs would run between four and five to the thousand, I think. They were large pine logs. That is my judgment.”

On cross-examination he said:

‘ ‘ When I was asked by Mr. Bell, ‘ State whether or not you are capable of making a fairly accurate scale,’ I answered, ‘ I think I was. Anything like sound logs, fairly sound logs, I could scale all right.’ I mean that if the logs were sound I could determine the contents of' those logs, and I meant, as I now say, to measure the log inside the bark at the smaller end was the proper way, and that the cubical contents shown by the rule would be the measure of that log; but where there is rot, or shake, or punk in a log, that is something that requires a man of skill in the line of scaling to know just what should be allowed for it. That is the reason I spoke of being capable of scaling sound logs, but not logs that were shaky and punky, and so on. I did make deductions for shake, and punk, and rot, and anything of that kind. I did like the rest, guessed at it. I did the best I knew how. I never acted as scaler for anybody before I went into the lumber-business, and knew nothing about scaling, and did not-see any scaling done before that. I have been in the lumber business more than 20 years, and what I have learned about it I have observed. Lumbering has been my paramount business.”

We are of the opinion that evidence .of his scale was. admissible, and that the court did not err in permitting the jury to consider it with testimony of other scales.

We find no error in the record, and the judgnient is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.