author: Brooke, J.

text:
    RANIAK v. POKORNEY.
    1. Equity — Pleading—Multifariousness—Fraud.
    A bill is not multifarious and sets up a case of fraud where it is alleged that plaintiffs, owners of land, delivered an abstract to one of the defendants, an attorney, for examination; that he advised them that the title was defective and that they should file a bill to quiet title; that he filed suit against a person having no title and set out a former chancery proceeding by another person against the defendant in the suit to quiet title and set up that such defendant had ceased to have title because she made no tender; that, as a result of a conspiracy between the attorneys for both parties, a decree was rendered in favor of the defendant in the suit to quiet title; that plaintiffs’ attorney satisfied the decree without authority and fixed title in defendant; that such attorney secured a deed to the premises in the name of his mother-in-law, another defendant, and acted as agent for her in the sale of lots to other defendants; that such attorney in furtherance of the conspiracy refused to allow an appeal from the decree and advised plaintiffs that they had an adequate remedy on their warranty deed; that in pursuance of such conspiracy a suit was brought against ■ the grantor and discontinued after considerable expense to plainitffs, and prayed that title be declared to be in them; that the decree in the suit to quiet title and the subsequent deeds be set aside; that plaintiffs’ former attorney be compelled to deliver an abstract of title, repay money paid for services, and that the attorneys for defendant in the suit to quiet title be required to pay the expenses of plaintiffs in the latter suit, in the proceedings against the grantor and in the instant suit, including an attorney’s fees. Ostrander, J., dissenting.
    2. Same — Pleading—Bill of Review.
    A bill of complaint is not a bill for review where it does not assume the validity of the pleadings in the case sought to be reviewed.
    3. Same — Fraud—Setting Aside Decree.
    A court of equity may relieve against fraud, even to the extent of setting aside its own decrees, when founded thereon.
    4. Same — Pleading—Inconsistent Claims.
    The stating part of a hill of complaint determines its character, and it is immaterial that th,e prayer for relief is inconsistent.
    Appeal from Wayne; Gilday, J., presiding.
    Submitted June 8, 1917.
    (Docket No. 27.)
    Decided December 27, 1917.
    Bill by George Raniak and another against Edward Pokorney and others to quiet title to land, to set aside certain deeds as fraudulent and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Reversed.

      Charles C. Stewart, for plaintiffs.

      Edward Pokorney and Moloney & Mendelsohn, for defendants.
    •Plaintiffs in their bill of complaint set out that they are the owners, in fee simple, of two lots in the city of Detroit valued at $2,500. The first 12 paragraphs of the bill contain a detailed history of the title to said lots upon which they rely. The bill then proceeds by proper averment to charge that plaintiffs, desiring to have their abstract of title examined, sought the professional services of defendant Edward Pokorney; that said Edward Pokorney falsely and fraudulently advised them that their title was defective ; and that it was necessary that a bill to quiet the same should be filed. This he agreed to do for a compensation of $50. It is further averred that said Pokorney filed said bill against one Susanna Mynell, a person who neither then, nor at any time prior thereto, had had any title to the premises in question, and further that in said bill against Susanna Mynell, a former chancery proceeding between Susanna Mynell and one William Fischer, Jr., was set out, and the decree rendered in said Mynell-Fischer case was pleaded and the assertion made therein that said Susanna Mynell had ceased to have any claim upon said lots because she had made no tender, “as provided in the decree.” In said bill it is further averred that defendants John E. Moloney and Morrey N. Mendelsohn appeared as solicitors for the said Susanna Mynell, filing an answer to said bill of complaint, and that they, conspiring with said Pokorney, set up. a false and fictitious claim on behalf of said Susanna Mynell to said lots, based upon the decree in the Mynell-Fischer case which at that time was some 15 years old.
    The bill further charges that defendants Pokorney, Moloney, and Mendelsohn, further conspiring, proceeded to a trial of said cause, and through false and misleading statements made to the trial judge secured the entry of a decree by the terms of which the title to said lots was fixed in the defendant Susanna Mynell upon the payment by her of the sum of $48. It is further charged that though defendant Pokorney was acting as solicitor for plaintiffs herein, he himself paid into court said sum for and on behalf of defendant Susanna Mynell, thus satisfying the decree of the court and fixing the title to said lots in said defendant. The bill then charges that said Pokorney secured a deed from said Susanna Mynell to defendant Josephine Medlin, the mother-in-law of said Pokorney, and that said Pokorney has since acted in the sale of said lots, one to defendants Mloodyanowski, and the other to defendants Krukowski. It is further charged that defendant Pokorney in the furtherance of said conspiracy refused to allow an appeal from said decree, and advised plaintiffs that they had an adequate remedy at law against one James J. Atkinson from whom they had received a warranty deed of the premises, and that in furtherance of said fraudulent purpose he brought an action in their behalf against said Atkinson, which later was discontinued,, plaintiffs having expended over $125 in the prosecution of same. Plaintiffs pray:
    1. That the title to said lots be declared to be in them in fee simple.
    2. That the decree of September 4, 1915, in the case of Raniak v. Mynell, be set aside as having been procured by fraud.
    3. That the record of such prior decree be declared void.
    4. That Susanna Mynell, being a party to the fraudulent proceedings, took nothing by the decree, and conveyed nothing to Josephine Medlin.
    5 and 6. That the deeds from Josephine Medlin- covering said lots conveyed nothing, and passed no title to the grantees named therein.
    7. That the defendants be required to answer.
    8. That the ■ defendants be required to deliver to plaintiffs the abstract of title covering said lots.
    9. That defendant Pokorney be required to repay to plaintiffs $130 fraudulently taken from them for services.
    10. That said defendants Pokorney, Moloney, and Mendelsohn be decreed to pay the expenses of plaintiffs: (a) In the fraudulent proceedings brought by the said Pokorney v. Mynell; (b) in the proceedings against James J. Atkinson; (c) in this proceeding including an attorney fee for $350 for services, of an attorney.
    To this bill of complaint, defendant interposed a motion to dismiss in the nature of a demurrer as follows:
    “1. The said amended bill of complaint is multifarious. (a) The amended bill of complaint, if filed as a bill of review, states two grounds for relief, namely, errors apparent upon the record, and fraud, (b) The amended bill of complaint, if filed as a bill of review, asks for inconsistent relief as against the several defendants, viz., relief in the prayer as to the property described in the amended bill of complaint; personal damages as against the defendants Edward Pokorney, John E. Moloney, and Morrey N. Mendelsohn, for expenses of a suit already tried; and personal relief as against the defendants Edward Pokorney, John E. Moloney, and Morrey N. Mendelsohn, for expenses to be incurred in this suit, the prayers for relief being inconsistent.

      “2. The amended bill of complaint, if filed as an original bill, in the nature of a bill of review, is multifarious for the following reasons: (a) The amended bill of complaint seeks to set aside two decrees of the circuit court for the county of Wayne in chancery, in two separate and distinct suits, upon two separate, distinct, and inconsistent grounds, namely, for fraud, and errors apparent upon the face of the records, (b) The relief prayed for in the said amended bill of complaint is multifarious for the same reasons as given above in paragraph 1 (b).
    “3. The said amended bill of complaint should be dismissed for the reason that it cannot be sustained, either as a bill of review, because leave of the court was not obtained before filing the same, or as an original bill, in the nature of a bill of review, on the ground of laches.
    “4. The said amended bill of complaint, as appears from the reading thereof, contains a large amount of scandalous, impertinent, and libelous statements which, from the reading thereof, are apparently not based upon actual knowledge, but are drawn entirely from imagination. ■
    “5. The said amended bill of complaint is not drawn in accordance with the rules and practice of the court, but is drafted in such a manner that an intelligent answer thereto cannot be made, nor issue joined, as intended, by pleadings in chancery.”
    Upon argument of said motion the court below entered a decree dismissing plaintiffs’ bill of complaint, without prejudice.
   Brooke, J.

(after stating the facts). We are of opinion that the bill is not multifarious under the following decisions: Torrent v. Hamilton, 95 Mich. 159 (54 N. W. 634) ; Richardson v. Richardson, 100 Mich. 364 (59 N. W. 178) ; Robinson v. Motor Car Co., 170 Mich. 163 (135 N. W. 897); Bennett v. Clark, 181 Mich. 690 (148 N. W. 372); Antoszewski v. Plumbing Co., 185 Mich. 215 (151 N. W. 635). It sets out a case of flagrant fraud, and seeks relief from said fraud which has become crystallized in the decree of the court. It is not a bill of'review, and cannot well be, since a bill of review would assume the validity of the pleadings in the case sought to be reviewed, which this bill distinctly denies.

There can be no doubt of the authority of a court of equity to relieve against fraud, even to the extent of setting aside its own decrees when founded thereon. 3 Cooley’s note to Blackstone’s Commentaries (2d Revised Ed.), p. 426; Jennison v. Haire, 29 Mich. 219; Barr v. Motor Co., 172 Mich. 299 (137 N. W. 697) ; 2 Kent’s Commentaries (13th Ed.), p. 483; United States v. Throckmorton, 98 U. S. 61; Johnson v. Waters, 111 U. S. 640 (4 Sup. Ct. 619). The fact that the prayer for relief may be inconsistent is not of consequence. The stating part of the bill itself is what determines its character. Whether plaintiffs are entitled to the whole or any part of the relief prayed for will be determined by the trial court upon a hearing.

The decree dismissing the bill is reversed, with costs, and defendants are allowed 15 days in which to answer.

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

Ostrander, J. In my opinion the bill is multifarious.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    POWELL v. PENNOCK.
    1. Gifts — Joint Bank Accounts — Statutes—Validity.
    Under Act No. 248, Pub. Acts 1909 <2 Comp. Laws 1915, § 8038 et seq.), a husband who changes his bank accounts, making the same payable to himself or wife, or either, and to the survivor, creates a title in his wife at his death, provided he is competent to act and is not subjected to undue influence.
    2. Same.
    Act No. 248, Pub. Acts 1909, relating to the creation of bank accounts in the names of the depositor and another jointly and the right of survivorship, is valid.
    3. Fraud — Undue Influence.
    Fraud and undue influence cannot be inferred from mere opportunity.
    4. Same — Undue Influence — Evidence.
    Evidence held, insufficient to show undue influence and fraud on the part of a wife in inducing her husband to make bank deposits payable to either or to the survivor.
    5. Same — Mental Competency — Evidence.
    Evidence held, sufficient to show mental competency of a husband who transferred large bank accounts to an account made payable to either him or his wife or to the survivor.
    Appeal from Barry; Smith, J.
    Submitted June 13, 1917.
    (Docket No. 41.)
    Decided December 27, 1917.
    Bill by Ella L. Powell and others against Clara Pennock for an accounting for claimed assets of the estate of Asa B. Pennock, deceased. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Alonzo D. Cadwalluder, for plaintiffs.

      Alfred J. Mills, for defendant.
   Steere, J.

Plaintiffs appeal from a decree of the circuit court of Barry county in chancery dismissing their bill of complaint against defendant, their stepmother, filed to compel her to account for claimed assets of the estate of their father, Asa B. Pennock, deceased, charged to have been fraudulently obtained, sequestered, and appropriated by her.

The case was before this court in a preliminary stage on appeal by plaintiffs from an order sustaining defendant’s demurrer to the bill. It was then held that under the allegations in the bill the probate court did not have exclusive jurisdiction over the issue tendered and a suit in equity might be instituted by the heirs to recover from the widow of deceased, whose estate had been closed in the probate court, any property rightfully belonging to the estate which had been obtained by the wife through fraud and undue influence. 181 Mich. 588 (148 N. W. 430). The order of the trial court was therefore overruled and the case remandéd with leave to answer. Pleadings were thereafter perfected and the case brought to hearing upon pleadings and proofs taken in open court, resulting in a decree rendered in favor of defendant.

An opinion was filed by the learned circuit judge who heard the case which, with the former opinion of this court, adequately presents for a fair understanding of this controversy the circumstances under which the litigation arose, the relations of the parties and the questions involved, as well as the findings of the court and conclusions of law thereon which plaintiffs review and gainsay as not warranted by the record, and erroneous. It is as follows:

“Bill filed for an accounting and to recover, from the defendant, certain moneys and United States bonds on the ground that they came into the hands and custody of said defendant wrongfully and fraudulently. The complainants in this case are the son and daughter of Asa B. Pennock, deceased. The defendant is the widow of the deceased. The marriage of Asa B. Pennock occurred April 9, 1910. The death of Asa B. Pennock occurred July 23, 1911.
“Asa B. Pennock had but little education. He was a man of excellent habits and of good reputation among his neighbors and friends as to honesty and fair dealing. Whatever he had in material wealth at the time of his death, he had earned by hard labor, industrious habits, and honest methods assisted by his former wife, who was the mother of complainants. He had a rugged aggressive nature. He hated shams, dishonesty, and fraudulent methods,,' and had but little patience with the weakness and incompetency of his fellows. He was*, however, generous with the unfortunate and sympathetic with their needs, if he believed they were doing the best they could. He had a positive nature and in some ways might be termed opinionated. He was in many ways ‘a diamond in the rough.’ He was disappointed, and possibly in a sense angered, at the conduct of his two children, the complainants in this case.
“The daughter first married with Mr. Cadwallader. He (deceased) bitterly opposed the same and his feeling was not greatly lessened against her after she obtained her divorce. His efforts to help her and her husband in getting along in the world were so fruitless that his disappointment increased his bitterness, which abated in some degree after her marriage with her present husband, Charles E. Powell. The son, Addison J., as a youth and during his manhood, was a source of constant anxiety and care on account of his intemperate habits. Asa B. Pennock had but little sympathy for the weakness that develops dissipation and the train of evils that follow. For ten years, from 1888 to 1898, he was the legal guardian of this son, on petition of his son’s wife. While since the guardianship has been terminated the son’s habits had been improved, yet he has not been and is not now a total abstainer in the use of intoxicating liquors.
“Notwithstanding the disappointment of this father, the record shows that he has given to this son and this daughter material help aggregating hundreds of dollars in direct giving and the payment of claims against them, and in many other ways swallowed his disappointment and given them help far beyond what many fathers would have done. He has given to the two sons of Addison Pennock his large home farm of over 300 acres, situated in Barry township and near the village of Delton, and worth, as shown by the proofs, upward of $15,000. He has also not only given to the complainants in this case, but has paid them for any and all services they have rendered in the care .of his first wife and of himself.
“The defendant in this case had, before her marriage with Asa B. Pennock, been twice widowed and had some property at the time of her marriage to him. She was a hard-working woman and had earned her living by practical nursing and care* of the sick. She was a woman of good character and reputation, sympathetic in her nature and possessed of good common sense, and at the time of her marriage was about 50 years old. She had been employed by Asa Pennock to care for his sick wife at the home of Charles and Ella Powell and was caring for her at the time of her death. Soon after her death she was employed by said Asa Pennock to be his housekeeper and acted in that capacity for pay for about 16 months before she and Asa were married.
“A few days after the marriage, Asa Pennock and his wife came to Hastings and he took up certificates of deposit in the Hastings National Bank and opened in the savings department of said bank an account aggregating a little more than $10,500, and had the money placed in the savings department of that bank and a savings bank-book issued to himself and his wife, Clara Pennock, jointly, and arranged, in writing, that the money was payable to either upon a receipt signed by either, and the survivor to be entitled to the entire fund.
“On the 21st day of December, 1910, Asa Pennock and the defendant went to Kalamazoo and to the Kalamazoo National Bank and took up certificates of deposit aggregating $9,000, and had the money placed in the savings department of that bank and a savings-bank book issued to himself and Clara Pennock, his wife, jointly, and payable to either, or the survivor. On the same day, said Asa Pennock and the defendant went to the Kalamazoo City Savings Bank at Kalamazoo, Mich., and took up certificates of deposit aggregating $12,000, and had the money placed in the savings department of that bank, and a savings bank book issued to himself and Clara Pennock, his wife, jointly, payable to either, or the survivor. These various bank books, with the accumulated interest were afterwards, and after the death of Asa Pennock, surrendered to the banks, and new books issued or the money paid to Clara Pennock, the defendant in this case. She received from the same upwards of $32,000. As to the government bonds, the proof fails to show that any came to the hands of the defendant. It is to place these various amounts of money in the estate of Asa B. Pennock for distribution to the heirs, or to recover the share of complainants therein under the statute of distribution that this bill is filed.
“Before disposing of this" case, it may be well to state that, under the law, courts have no right to enter decrees, or judgments, by which any person will be deprived of the right to dispose of his or her property as seems best and just to them. Every person has the right and should be permitted to dispose of property as he or she sees fit to do, subject to the rights of creditors and the claims of dependents and the rights of a widow, which are guaranteed by law. So far as the complainants in this case are concerned Asa B. Pennock was under no legal obligation to give them a dollar of his property. He had a right to do with it as he wished and if he was competent to do what he has done and did it of his own volition, it ought to stand, no matter what others may think he should have done for his children or grandchildren.
“It is my judgment that there are three questions to be considered in disposing of this case: (1) Did the act of changing his bank accounts, making the same payable to himself, or wife, or either, and to the survivor, create a title in the same in Clara Pennock at his death, under the law, provided he was competent and did the same freely and of his own volition? If it did not, that Would end the case and the complainants would be entitled to the relief sought. If it did, then (2) Was Asa Pennock competent to do what he did do when it was done? and (3) Was it of his own free will that he did it, if he was competent, and Was his action procured by fraud or undue
influence on the part of the defendant, or some one in her behalf?
“I am of the opinion that the first question is answered by Act No. 248 of the Public Acts of 1909, and the case of State Bank of Croswell v. Johnson, reported in 151 Mich, at page 538 (115 N. W. 464), and that a title was created in the defendant in the savings bank account books and that she was entitled to the money they called for by right of survivorship, provided Asa Pennock was competent to act and was not unduly influenced to do what he did do. .
“(2) Was Asa Pennock competent to dispose of his property under the law? I do not think it necessary to review the testimony taken at the hearing at length. From the proof taken, I have not the least doubt of his competency. I think, taking into consideration the character of the witnesses, their means of information, their interest or lack of interest in the result of the suit, that the proof of his competency largely preponderates in favor of a finding that he was competent and fully knew and understood what he was doing and the effect of it upon those who would share in his estate had he died without disposing of the property as he did.
“(3) Was any fraud practiced on him, or was he unduly influenced by the defendant, or any one in her behalf; to do what he did do? It is my judgment that there is. not a scintilla of proof that this was done. The most that can be said is that she had the opportunity. There is not the least proof that she took advantage of it. The proof is undoubted that she married Asa Pennock in good faith promising to be his wife and minister .to his needs and care for him as she should do as his wife, and that she did this, without stint or limit and devoted herself constantly to his comfort, is not disputed by any one. She was true to him, and if her offices as a good, true wife in ministering to his care and comfort has brought her close to him, and of his own free will he has supplied her with a competence, it should not in' my judgment be disturbed, and under the law cannot be.”

That the trial judge correctly decided the question of law proposed in his first interrogatory proposition, there can be no doubt. Not only are his conclusions in harmony with State Bank of Croswell v. Johnson, supra, but the constitutionality of Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8038 et seq.), questioned in the briefs of plaintiffs’ counsel, is decided in Re Rehfeld’s Estate, ante, 249 (164 N. W. 372), which is cited with approval in the recent case of People’s State Bank v. Miller’s Estate, post, 783 (165 N. W. 608).

Plaintiffs’ claims of fraud, undue influence, and mental incompetency are primarily questions of fact with the burden of proof resting upon them. As presented by this record fraud and undue influence are contingent upon the issue of the deceased’s mental competency. In the absence of the latter even the claimed inferential evidence of the former disappears. Opportunity alone affords no inference. The record is barren of any direct evidence of acts or words on defendant’s part tending in themselves to show fraud or. undue, influence. The evidence is most conclusive and practically conceded that when in his right mind and full possession of his mental faculties deceased was of a positive, impelling nature, given to forming his own conclusions, acting upon his independent judgment and not to be influenced, unduly or otherwise, to adopt any course of action he had not independently decided upon.- The gist of plaintiffs’ claim is that deceased’s natural powers had abated and his mentality-failed to incompetency, taking advantage of which defendant unduly influenced him to dispose of a portion of his estate as he was not of his own free will inclined to do and on his own initiative would not have done, thereby defrauding them of their rights as his heirs.

The legal principles applicable to the issue of mental incompetency as here raised are well settled in this State and elsewhere. Amongst the-many cases cited the following are more or less in point upon various phases of the testimony: Kempsey v. Mc-Ginniss, 21 Mich. 123; Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882); Rice v. Rice, 50 Mich. 448 (15 N. W. 545); In re Shepard’s Estate, 161 Mich. 441 (126 N. W. 640); Haines v. Hayden, 95 Mich. 332 (54 N. W. 911, 35 Am. St. Rep. 566); Hibbard v. Baker, 141 Mich. 124 (104 N. W. 399) ; Schneider v. Vosburgh, 143 Mich. 476 (106 N. W. 1129) ; In re Hoffmann’s Estate, 151 Mich. 595 (115 N. W. 690); In re Ganun’s Estate, 174 Mich. 286 (140 N. W. 561); Reagan v. Murray, 176 Mich. 231 (142 N. W. 545) ; In re Williams’ Estate, 185 Mich. 97 (151 N. W. 731) ; In re McIntyre’s Estate, 193 Mich. 257 (159 N. W. 517) ; Ginter v. Ginter, 22 L. R. A. [N. S.] 1024, and cases cited (79 Kan. 721, 101 Pac. 634).

Any attempt to outline and review at length all testimony of many witnesses called by the respective parties and the elaborate arguments of counsel contained in the over 1,600 printed pages of record and briefs with which this case is enlarged would involve no unsettled legal questions, serve no useful purpose, and be of no interest to any one except the litigants and their counsel. Large portions of both record and briefs are devoted to biographies (auto and otherwise) of the parties to this litigation, their relatives, friends, and enemies, including some of their attorneys, often tainted in the extreme with aspersive matter which, whether true or false, is of scant relevancy and best ignored.

A search of this long record with the questions of deceased’s mental competency and capacity to independently plan and act for a desired purpose uppermost sustains the thought that, sanely considered from his viewpoint, what he did is not shown to have been unwise or unnatural at his time of life as he was then situated. During his long life since early manhood he had always lived in domestic relations and maintained a home of his own, most of the time .in the country upon his farm. In 1911 he decided to establish a home for the declining years of himself and his then wife in the nearby village of Delton and to that end selected a place in the suburbs with ample grounds where he could, and did, continue to a degree the familiar environments and characteristics of a country home which a long life had made attractive to him, keeping a horse, cow, pig, poultry, etc. So far as shown, and aside from the conduct of his children in certain respects, his home life with his first wife had always been pleasant and congenial. It is undisputed that such home conditions were re-established after his second marriage and continued until he died. His children were as welcome there as before, were on friendly terms with defendant,, conceded that she was kind and congenial, a good housekeeper, and took good care of their father and his home until he died. !

Deceased’s first wife, who was about three years older than he, became mentally unbalanced and practically helpless about two years before her death, and was thereafter a constant care. He tried to keep up his home and care for her there with hired help, employing several different women as housekeepers, but they were unsatisfactory or would not remain, and for a time his wife was cared for at the homes of their children, for which he paid, living himself at his own home. To relieve his daughter of the burden of caring for her mother he secured the services of defendant to care for his wife at the home of his daughter and son-in-law. She proved an efficient and satisfactory nurse and caretaker, remaining in that service and caring for his wife until her death. Of this his son-in-law, Charles Powell, says in part:

“I told him he had got a good woman taking care of him and to take his wife home, because my wife wasn’t capable of taking care of her; wasn’t able to do it any longer, and I said, ‘I wouldn’t have my wife as your wife is for all the money you ever had.’ ‘Well,’ he says, ‘I couldn’t keep a woman in my place five minutes if she was there.’ ”

Powell and his wife were then living on a farm of 110 acres which deceased had given them.

After the death of his first wife deceased preferred to, and did during most of the time, continue to live at his own home. His children had homes of their own and were interested in their own affairs. He tried unsuccessfully to get his granddaughter and her husband to live and keep house with him, and in 1908, when unwell, lived at his son’s home for a time, paying for his board, but this proved unsatisfactory to him and he returned to his own place, living alone for a time, and eventually employed defendant as his housekeeper, subsequently marrying her as stated. He had stood by and helped his two children, who had been a disappointment and source of anxiety to him for many years, until they were well past middle life, settled in homes of their own on valuable farms which he had given them. He had previously given, his daughter, after her first marriáge against his wishes, a valuable farm adjoining the city of Hastings, which was squandered, and upon her second marriage, without his knowledge or consent, to her present husband who was then a farm hand, he ultimately gave them the farm they were living on when he died. He had first started his son in business in Hastings, where his dissipation was such that he proved a .failure, and then .established him on a farm, where he so conducted himself that his own wife petitioned the probate court for a guardianship to control him, which deceased assumed and exercised for 10 years, in the meantime paying off a mortgage on the son’s farm, and before he remarried he deeded his former home farm of 360 acres to his son’s children. During his long and active life he had been thrifty, efficient, and successful in his pursuits; primarily a thorough and capable farmer he was- also a stock dealer and at times engaged as an auctioneer. He had made money and was well off. Without going into details the record gives support to the contention that he had given to plaintiffs and their children from his accumulations nearly twice in value that which he saved for himself in his old age. After what he had done for them, and his experiences with them, it was not unnatural nor passing strange that he decided to remarry and re-establish himself in his old home where he desired to be and, as he told friends he proposed to do, provide that the wife whom he selected and who made a pleasant home for him in his old age, as he said defendant did, would be “well taken care of” and “never regret it.” He took counsel with others as to how to most conveniently provide this and be safe himself, after which he adopted the course stated. If he understandingly entertained such views and intent, it appears to be conceded he did not make an unwise selection, for the testimony is practically undisputed that defendant was a kind and congenial wife to him, took good care of his home and him, when he needed care. After their marriage he told his cousin Ebenezer Pennock, an old resident and leading citizen of the county, that “he was going to Hastings to fix matters so she would never have to work out.” Of his mentality this witness said:

“I never saw Asa B. Pennock when I thought he was not' competent to understand his business and transact it.' He was always competent to transact his business and understood it and had a good mind and memory. The last time I see him he was just as capable to talk about stock or horses or anything else as he ever was, from anything I could see.”

It is strenuously urged in the briefs of plaintiffs’ counsel that this was purely a mercenary marriage on defendant’s part for which she planned and schemed to get the old man’s money, while defendant’s counsel deny this and argue more meritorious motives. While that issue is of scant materiality, it may be conceded and seems probable that neither party was actuated by any romantic or altruistic notions on the subject of matrimony, and both took a practical view of the temporal and material benefits anticipated from this alliance. Both had been married before and were of mature years. He was an old man and she, though much younger, was an elderly woman, past the childbearing age. What motives may have actuated them to enter into this marriage contract is immaterial, provided they mutually so desired, understood what they were doing, and were qualified to contract.

As to deceased’s mental vigor and competency at the time under consideration there is of course conflicting testimony, but a study of this record leads strongly to the impression that his ability to do business, manage his affairs, and make contracts was never seriously questioned until after his death, and this, litigation arose. He retained possession of, and actively managed th& affairs of, the large farm he had deeded to his grandsons, came and went as he pleased, bought and sold, collected and paid, transacted business at the banks and elsewhere until near the time of his death. Old neighbors, bank officials, and experienced business men who have no apparent bias or interest in this litigation testify strongly in substantiation of his retained mentality. Whatever physical infirmities of age he may have been afflicted with, we cannot find it affirmatively shown by a preponderance of evidence that they noticeably impaired his mentality, incapacitated him from the exercise of his normal business judgment, or from rational conduct in the ordinary affairs of life.

We find no occasion upon this record to disturb the conclusions arrived at by the learned circuit judge, who had the witnesses before him and heard their testimony.

The decree dismissing plaintiffs’ bill is therefore affirmed, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ.,- concurred.


text:
    POTTER v. DUNDEE HYDRAULIC POWER CO.
    1. Waters and Watercourses — Dams—Overflowing Lands — Prescription.
    On a bill by an upper riparian owner to enjoin a mill owner from maintaining a new dam at a level higher than the one replaced, held, that the ultimate test of defendant’s prescriptive right was the extent to which the old dam raised and held the level of the water it impounded.
    2. Same — Dams—Evidence.
    Evidence held, to show that by the maintenance of a tighter and more perfect dam, even if no higher, defendant had increased its poundage capacity over the old dam to a certain extent and also to show that the height of the new dam at the spillway exceeded that of the old one.
    3. Damages — Excessive Verdicts.
    A judgment for $840 damages for overflowing plaintiff’s farm of 40 acres for 4 years, held, excessive to the extent of $200.
    4. Appeal and Error — Damages—Matters Not Decided on Trial.
    Where, in an action against a mill owner to recover damages for flooding plaintiff’s farm land caused by the building of a new dam higher than the old one, the trial court holds open the question of damages after March 1st of a particular year contingent on the dain being reduced by the middle of May, with the right to plaintiff to make a showing as to damages, and does not pass on them, the question of damages after March 1st will not be considered on appeal.

    Appeal from Monroe; Chester, J., presiding.
    Submitted June 19, 1917.
    (Docket No. 90.)
    Decided December 27, 1917.
    Bill by Charles C. Potter and another against the Dundee Hydraulic Power Company to restrain the maintenance of a dam at an excessive height, and for damages caused by flooding. From a decree for plaintiffs, defendant appeals.
    Modified, and affirmed.

      Willis Baldwin, for plaintiffs.

      Thornton Dixon, for defendant.

       On liability for damming back water of stream, generally, see note in 59 E. R. A. 817, specifically as to right to increase height of dam, see page 874 of aboye note.

   Steere, J.

Plaintiffs, who are husband and wife, have owned and occupied for more than 20 years an 80-acre farm located upon the north side of the river Raisin about one-half mile up stream and westerly from defendant’s, dam across said river at the village of Dundee, Monroe county. Approximately one-half of this farm is upland and the remainder flats, or bottom land, along the north bank of the river which plaintiff claims was especially fertile and productive farming land, subject to overflow only in the time of spring freshets, and which he tilled successfully until defendant erected a new and higher dam of concrete in the summer of 1911, raising the level of its millpond and flooding his lowland. This bill was filed in February, 1912, to restrain defendant from maintaining this dam at a higher level than the one it replaced, and to perpetually enjoin defendant from flooding plaintiff’s land to any greater extent than had been done by preceding dams erected upon the same site.

It was shown that as early as 1827 a tract of 120 acres of land upon which the dam in question is located was conveyed by the then owner to defendant’s predecessors in title, requiring the grantees “to construct a good, substantial, and firm dam across the river Raisin at the best point on the said river on said premises, where they can get the neatest head and fall, and also to construct, excavate, and build a good and sufficient race,” etc.

Tradition, supplemented by the testimony of living witnesses, shows that a dam of some kind and height has been maintained since that time at the point where the grantees then decided they could '“get the neatest head and fall.” No flowage privileges were ever acquired by defendant or its grantors from upstream owners, and beyond the limits of the land first acquired what rights defendant has are by prescription.

During the intervening years age, freshets, and ice floes from time to time made imperative frequent re-, pairs and occasional reconstruction of the dam maintained at this site. According to the memory of the oldest inhabitant, running back some 70 years, the first dam was known as a brush dam, later repaired and reconstructed with logs and known as “a log dam,” as early as 1846, which was washed out in whole or in part and rebuilt or repaired occasionally, but retaining that character and name until some time between 1897 and 1900, after being wrecked by a flood, it was restored or rebuilt by its then owner, Mr. Davis, in a more substantial manner, and thereafter known as a “timber” or “rafter.dam.” This work was done by or under the supervision of a witness named Edwards, who was running the mill, and in charge of the property for Davis. He testified that he was there in Davis’ employ 20 or 21 years, “had everything to do with it while there,” and built the “new” or rafter dam about 2 years before he went to Detroit, where he had lived 14 or 15 years. He described the old dam as a “wooden crib dam, made of wood, logs, plank, and dirt.” He testified that he measured and intended to build the new dam the same height as the one it replaced. It experienced similar vicissitudes as had its predecessors, requiring frequent repairs, or reconstruction, but was maintained and in use until defendant acquired the property, and the cement dam was constructed according to the plans and under supervision of an engineer who testified to surveys, measurements, photographs, etc., of the old and new dams tending to show that the height had not been increased, and the elevation at the spillway formerly enjoyed by Davis and his predecessors was not exceeded.

After this bill was filed the north end of the new cement dam, built during the summer, washed out, and in October, 1912, plaintiffs obtained a temporary injunction restraining construction of the portion carried away at the height proposed, but upon defendant filing a bond to meet any damages which plaintiffs might recover the dam was permitted to be restored to its former height.

The case was heard in the fall of 1914, and findings were made by the trial court in which the evidence is reviewed and the conclusion reached that the present dam is in fact and effect much higher than former dams, that plaintiffs had suffered damages therefrom amounting to $840 up to the time of the finding, which was adjudicated against defendant, and a mandatory injunction granted requiring the present dam to—

“be cut down 2 feet from the top of the wing, measuring from the top of the wing at the south end of the timber on the north stone wall, and that this dam be so cut down from the north end to within 50 feet of the flume. This remaining 50 feet may be continued as it is. The headgates in the flume shall not be maintained at any greater "height than that portion of the dam shall be after cutting it back 2 feet.”

The principles of law applicable to this controversy are well settled and not in dispute. It is conceded by plaintiffs that defendant has a prescriptive right to maintain adjacent to their land as high a level of backwater as resulted from the old dam, or dams, and to overflow their flats to the same extent. If the new dam does no more, they cannot complain of the burden. It is conceded by defendant that it cannot place an additional servitude upon the upstream shore lands by raising the level of the backwater either through constructing a higher dam or an absolutely tight dam if the former one maintained during the period of limitation was so imperfect or leaky as to regularly allow water to go through it instead of over its crest, thus failing to fully impound the water and maintain a level of which it would be capable if more perfectly constructed and kept tight against leakage. The settled law in this case is abundantly discussed and defined in White v. Forbes, Walk. Ch. 112; Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243); Miller v. Bank of Belleville, 148 Mich. 339 (111 N. W. 1062); Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423 (137 N. W. 305, Am. & Eng. Ann. Cas. 1914B, 984); Brockway v. Power & Light Co., 175 Mich. 339 (141 N. W. 693).

It is apparently undisputed that this dam, as were its predecessors, is about 400 feet long, extending nearly north and south across the Raisin river and its adjacent flats to the higher land, or “banks,” on either side. The mill and flume are at its south end, on the south side of the river, connected with the pond by a raceway extending from the flume northwesterly into the impounded water above the dam. The only suggestion of the power developed by any of the dams is found in the testimony of a witness named Pulver, who had lived his life of 67 years in the vicinity of the dam, and was called as a witness by defendant. He testified:

That more horse' power was used in the “old times than now”; that “the paper mill used 60, the turning mill 15, and the sawmill 25, making about 100 horse power. The sawmill at times ran from 25 to 30 horse power. It did not have a good wheel. * * * There was power enough to run all these six months in the year, perhaps not so much sometimes; some years it was quite a bit less. * * * In dry weather all these mills could not run continuously.”

i While testifying to having “blown out a wheel pit under the mill for Davis,” and a familiar knowledge of hydrodynamics at that point, by looking at it rather than from any computations, he stated that he never took any measurements, but “everybody knows that the old dam was 30 inches to 3 feet lower than the presént dam,” which he admitted was merely a guess. Other portions of his testimony as well as that of other witnesses are decidedly out of harmony with this guess, and again there is testimony in the record tending to confirm it; while the guesses, or estimates, of other witnesses place the present dam about the same height as the old.

Defendant claims a prescriptive right to maintain a normal head, or elevation, of about 7 feet 3 inches above the surface of the tail-water at the spillway, and that the present dam is built to that capacity following data and measurements indicating the height of the dam it replaced, while plaintiffs claim greatly increased upper water level resulting from both increased height of dam and better construction.

The height, appearance, and capacity of the brush or log dam are memories only, while numerous photographs, plans, sketches, etc., accompany the evidence relating to the present dam and the rafter dam immediately preceding it. The abundant testimony is extremely conflicting as to the height at which both the log and rafter dams held the water back, and it is far from harmonious as to the effect of the present dam. While the evidence is at variance as to the comparative heights and results of the log and rafter dams, the more definite and serious issue and burden of plaintiffs’ complaint is. directed to the claimed increased level of the impounded water and flooding of upstream bottom lands following the erection of the concrete dam. The rafter, or Davis, dam is conceded to have been built in 1897 or 1898. Davis testified that the old dam was dilapidated when he bought the property, that he repaired it so that he had “a nice head of water, about 7 feet 3 inches,” although he did not think .he ever measured it, and that he continued that amount of water as much as he could until he built the new, or rafter, dam, with which he also calculated to hold back about 7 feet 3 inches of water. He tells of a landowner with whom he had difficulty because he insisted the dam was a detriment to his property, and Davis told him “he had better- go slow,” but the next year he put in an improved wheel, and had more pressure than he needed, so he cut back the center of his dam 2% feet on a slant, making a spillway which the testimony indicates and the trial court found lowered the perpendicular of the rafter dam about 10 inches. That year a stone wall about 30 feet in length was built at the north end, as a part of the dam, with a 6x6-inch timber upon the top of it. A year later a stone wall was built at the south end. These walls yet remained at the time of the trial, and were adopted by the court as fixed points with which comparisons could be made in analyzing the conflicting testimony. Witnesses of defendant testified that the spillways in the concrete dam and in the rafter dam were about the same height, and the water was held at about the same level, while others called by plaintiff testified that it was both higher, some even nearly 3 feet, and proportionally retained the water at a much higher level, and for a longer time, owing to tighter construction. The evidence is convincing that the rafter dam was built somewhat piecemeal, higher in some places than in others and lower at the south end than the north. It may fairly be concluded that as constructed it held the impounded water at a higher level than its predecessor until cut down in the center as shown. Edwards, who constructed it for Davis, was called as a witness by defendant, and testified that he measured the water 20 or 25 feet north of the mill and kept the lowest point of the dam 7 feet 8 inches above bed rock; that, compared with the old dam, it was higher in some places and lower in others; that it would leak badly in the winter, and they would block it up until warm weather came and then fix it; that during the year he was there he knew of no complaints or objections to the height of the water; that he cut down a part of the center to protect the rest of it; that, except for the wings, which he thought would have to be cut off probably to satisfy the people, he was perfectly confident the present dam is no higher than the rafter dam. And, in extenuation of his appearing as a witness, he points out a material distinction in the capacity of the two dams the full significance of which he apparently did not appreciate himself, as follows-:

“I feel as though it has put me in a bad place in bringing me down here, because those people are all old friends of mine and old acquaintances, and I believe they are honest in their opinion, but when they look at that dam as it was previous to the new dam there was 18 inches to 2 feet of water below the dam that made the dam look lower, and when they get a tight dam it makes it look as though it was higher, but if they had spent as many months in there as I have they would know more about the difference.”

To the same effect a witness named Rood, in defendant’s employ, who had lived in Dundee all his life and had at one time repaired the rafter dam, which he described at length, stated that as near as he could figure it the dam was about 7 feet 8 inches from the bed rock, and the tail-water was about 2 feet deep.

Harry Gray, defendant’s superintendent, testified that measurements of the water at the present dam were made daily and sent to the Detroit office, and from the reports he figured the average tail-water as 6 inches.

After listening to the volume of conflicting, and in many respects confusing, testimony which was taken in open court, the circuit judge made personal inspection of the dam in company with counsel for the respective sides, and went up the north bank of the river to the west side of plaintiff’s land. At the dam various measurements were made in his presence which are recited in the record.

Adopting the rafter dam as maintained up to the construction of the present dam as the criterion of defendant’s prescriptive right of flowage, the court found with ample and convincing testimony that the average previously maintained level of impounded water had been raised materially by the present dam to a height which flooded, soaked with seepage, and destroyed the drainage of plaintiff’s lands at times and in a way and to an extent never experienced from the old dams, preventing their tillage and impairing their productivity.

It is stated in the court’s findings that defendant claims the present dam is no higher at the spillway than the old dam, but “concedes, that the wings on each side of the spillway are higher, and should be cut down to the height of the spillway.” While this concession does not otherwise appear in the record, the strenuous contention of defendant’s counsel is that the evidence as a whole conclusively shows, with no contradictory testimony except random estimates and guess work, that the old dam was of the height of the present spillway, and to cut down 2 feet from the top of the wing as ordered would reduce the entire dam several inches (varying from 9 inches to 7% inches) below the surface of the present spillway.

The ultimate test of defendant’s prescriptive right is the extent to which the old dam raised and held the level of the water it impounded. The height of .the dam, while indicative, is by no means conclusive. There is abundant testimony that the old timber dam was of- doubtful construction, not tight, and frequently out of repair, having a tail-water of from 18 inches to' 2 feet, as testified to by defendant’s own witnesses. The new dam is shown to be of concrete construction, substantial and tight, with an average tail-water of 6 inches. If the height of the old dam was the same as the present one, its impounding capacity was clearly not the same. In that aspect of the case there is abundant testimony to justify the conclusion that by maintaining a tighter and more perfect dam, even though no higher, defendant has increased its poundage capacity over the old dam to the extent directed reduced. There is also abundance of testimony to warrant the trial court in the conclusion that the height of the present dam at the spillway exceeds that of the old one. It would serve no beneficial purpose to further review this in detail, but the testimony found in the ample record considered in its various aspects, and as a whole, satisfies us that the extent to which the trial court determined defendant has exceeded its prescriptive right of flowage should not be disturbed.

It is further contended that the damages awarded for flooding plaintiffs’ lands up to March 1, 1916, the decree for which was filed March 25, 1916, is excessive, and that the testimony upon that subject furnishes no basis to warrant a computation of the amount found by the court due at that date.

The trial court gave judgment in favor of plaintiffs, with right of execution, against defendant in the sum of $840 as damages for- excessive flooding of plaintiffs’ land to March 1, 1916, and provided that:

“In case the same is not cut down by May 15th, the defendants herein shall have the right to make a further showing as to further damages sustained by them by reason of not cutting down the said dam so that their premises could be cropped during this present year.”

It is not questioned that most of plaintiffs’ flats had been cleared and cultivated from time to time for many years before the present dam was built. This land was river bottom annually flooded in the spring, subject to the hazard of inundation in time of freshets, fertile as a result, and is shown to have raised good crops when everything went well. Potter claims it has produced as high as 40 bushels of wheat to the acre, and one year, when it was rented, over 100 bushels of corn per acre. He gives no dates, nor what proportion of his flats yielded such crops, nor how often, and no definite data as to his annual income from this land during the many years he owned it. Of its use he stated:

“I pastured some of it, mowed some of it, wheated some of it, corned some of it, barleyed some of it, and some I turned the cattle on.”

He testified:

That “40 or 50 acres” of his farm consists of “low flats”; that he has 45 acres of flats; that he did not mean to tell the court there were 45 acres he had not worked since the new dam was built (then two years before), but “during the past two years there are right around from 30 to 40 acres of my land that I haven’t worked. I have mowed some of it. All my flats except five acres are in bad condition every day.”

Of his damages he said:

“I couldn’t judge as to the damage during the last two years because of the water and my not being able to crop the land; it is worth all you can get for it.”

Further interrogated, he testified:

“Such land is worth for renting purposes from $5 to $7 per acre, just as you can strike a party and the bargain you can make.”

Two other witnesses who own bottom land which they claim was also damaged by flooding give some data as to rental value of such land. S. B. Curtis, who owns bottom land across the river from Potter, stated that before the new dam was built they cropped the land as they wished for many years; that his was used chiefly for hay and pasture; that he had seen June freshets come, and had his. land flooded just before hay harvest, and under modern methods of drainage those freshets come more often than formerly ; that he thought the- new dam made the water from a foot and a half to two feet higher than the old at the spillway, so that the bottom land is soaked with water when not flooded; and the pasture not so good as it would be with the water off; and that with the water off Potter’s land could be rented at from $5 to $10 per acre. H. C. Reynolds, who had known Potter’s flats for 60 years, testified, “As to the back end of it, they used to work it all.” He had seen it in corn, wheat, and meadow, “not all, but portions, of it,” saying of its rental value, ”1 think they are renting land there from $4 to $.6 per acre for a year, or for the season.” He estimated the difference in height of water between the old and new dam as about three feet.

Aside from comparisons and assertions in general terms, we find no tangible data affording any basis for determining damages except the testimony of these three witnesses as to rental value. To take an average of their lowest estimates would not be out of harmony with the trial court’s discount of their testimony, touching the difference between the height of water as maintained by the new dam and the old, which we think the record fully warranted. While it is fairly shown that the productive value of plaintiffs’ land was damaged by and during increased flooding after the new dam was completed and in operation, no claim is made of permanent injury if the former level is restored. Of the four years for which damages were claimed and awarded there was little, if any, backwater during the first, when the dam was under construction. Taking this into consideration, together with the fact that the productiveness of the land while impaired was not totally destroyed, and plaintiff yet had a beneficial use of it for pasture and hay during these years, we are constrained to conclude that the damages awarded should be limited to $640 on a basis of $4 per acre per year during the four years in question for 40 acres detrimentally affected, for which we think there is evidential support in the record.

The matter of damages subsequent to March 1,1916, which we are asked to determine, was reserved and held open by the trial court contingent on the dam being reduced by the ides of the ensuing May, with the right given plaintiff to make showing as to further damages. That question has not been passed upon by the lower court, and is not before us on this record.

Modified as to damages as above indicated the decree of the trial court is- affirmed, with costs to plaintiffs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


text:
    NEAL v. NOVELTY LEATHER WORKS.
    1. Evidence — Admissibility—Testimony on Former Trial.
    Evidence held, not to show that, plaintiff’s illness was so> severe and of such permanent character that he could not testify so as to render admissible his evidence in another case as to the validity of the claimed contract involved in each case.
    2. Same — Competency—Corporations—Officers—Admissions.
    Statements and admissions of the president and general manager, and the treasurer of a corporation, who constitute a majority of the directors and are both officially and actively engaged in the business, relative to the existence of a contract with plaintiff, are competent evidence, in a suit against the corporation by an agent for an accounting as to commissions on goods sold.
    3. Corporations — Officers — Authority to Make Agency Contract.
    Evidence held, to show that the president and general manager of defendant corporation had authority to make an agency contract.
    Appeal from Wayne; Codd, J.
    Submitted June 22, 1917.
    (Docket No. 137.)
    Decided December 27, 1917.

      Bill by William C. Neal against the Novelty Leather Works and another for an accounting. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Arthur E. Fixel, for plaintiff.

      Thomas W. Payne, for defendants.
   Steere, J.

The Novelty Leather Works is a Michigan corporation located in the city of Jackson, engaged in the manufacture and sale of leather goods and novelties of various kinds, including certain automobile appliances. During the time of the events involved in this litigation, it had four stockholders and three directors, of whom defendant Collins was president, and general manager, and John Bennett treasurer.

Defendant Collins had secured a patent, or patent rights, for an invention called the “Collins Always Ready,” or “Quick Action,” curtain, designed to facilitate the manner of holding automobile curtains on the inside and convenience in using them, the rights and equitable ownership of which belonged to the Novelty Leather Works.

Plaintiff was a so-called “manufacturer’s agent,” engaged in the sale of automobile material and accessories with his office in the' city of Detroit. In the summer of 1912, as defendants were about to put this device upon the market, plaintiff became interested and participated, in an agency capacity, in its promotion, on whose initiative and to what extent is a matter in dispute. Plaintiff claims that on Collins’ solicitation he entered into an agreement with defendants in the fall of 1912 to act as their general agent in promoting and assisting in the sale of this device and licenses to use it, in consideration for which he was to receive 10 per cent, of defendants’ receipts from the sales of the appliance and royalties from licenses to automobile manufacturers for its use; that in fulfillment of the agreement on his part he did, as stated in his bill of complaint for an accounting—

“assist the said defendants in the sale of said device and licenses, and did provide stenographic service, service with correspondents, distribution of printed matter, and the use of his office for said defendant, the Novelty Leather Works, and that a large number of circular letters soliciting trade by mail were sent out by your orator, in performance of his part of said contract. That your orator likewise solicited business, personally calling on automobile manufacturers, and that, as a result of the efforts of your orator working in conjunction with said defendant, the Novelty Leather Works, a large amount of business was secured for the said automobile curtain device.”

Defendants deny any contract of general agency; and, in explanation of plaintiff’s admitted relations with them, claim that, when in Jackson showing defendants the merchandise he was handling, plaintiff, was impressed with the merits of their curtain device and said he could place it with the General Motors Company, of which his brother was president; that on this proposal it was agreed that if he could-accomplish it defendants would pay him 10 per cent, commission on the deal; that the only transaction then talked about was a license to the General Motors for use of the patent, of which Collins testified:

“He was to consummate the sale, go to the officials and complete the arrangement for the demonstration, and I was to put the — I was to demonstrate the curtain and make it and put it on, and he was to close the deal.
“Q. What were you to pay him for that?
“A. Ten per cent.”

Collins also testified that up to this time they were furnishing the device on tops they were making without extra charge and had “no idea of the selling as a license proposition” until plaintiff brought it up, and Collins then told him “if he could do that” they would pay him 10 per cent, for such sales as he actually consummated, “would furnish literature and give him an opportunity to make the sales.” Asked of the termination of their relations in the latter part of 1913, “Why did you dismiss Mr. Neal or sever your connection with him?” Collins replied:

“There were two reasons, one was that, when the Cadillac Motor Car Company started to evade our patent by certain methods, I discovered the evasion when they had 1,500 cars out, and some time later Mr. Neal apparently was giving my aifairs very little attention.”

Plaintiff’s claim and alleged grounds for equitable relief are, briefly stated: That he advertised the curtain by personal interviews and correspondence and assisted in the solicitation of patronage from many automobile companies doing business in Michigan and elsewhere, until, largely as the result of his activities while its general agent, defendants realized a profitable business in this patented device with numerous automobile manufacturers; when defendants refused to recognize his contract of employment as general agent or his services in that behalf, declined to pay the money due him under said contract, refused to furnish him any statement, and denied his right to information from or inspection of their books to ascertain upon what sales and royalties they owed him commissions, charging that they have been withheld from him and the desired information concealed for the purpose of defeating his claim and defrauding him out of his just compensation amounting to a sum largely in excess of $500, for which reasons he prays an accounting, an adjudication and adjustment of his rights, and a decree for such sum as may be found his due.

At the hearing oral and documentary evidence was introduced, including a large amount of correspondence with different automobile concerns and between the parties to this suit, indicating, amongst other things, individual efforts on plaintiff’s part as well as active co-operation between him and defendants to promote the business; Collins frequently writing him on the subject with instructions to follow up prospective customers, “get busy,” “get circulars off- at once,” etc. After testimony had been introduced by both parties leading up to and upon the question of plaintiff’s right to an accounting, the trial court held, “without any prejudgment of the case at the present time, that an accounting should be had of all the business that was done by the defendant company in these curtains up to October, 1913,” and made an order of reference to a circuit court commissioner of Jackson county for that purpose. Upon return of the report and testimony taken by such commissioner, the court found that a contract existed between the parties as plaintiff claimed, that upon undisputed sales during the period in question plaintiff’s commissions of 10 per cent, amounted to $223.80, and decreed judgment in his favor for that sum, with costs.

Defendants in appealing from this decree urge that the following four vital questions were erroneously disposed of by the trial court adverse to their rights:

“(1) Whether or not the plaintiff has failed to prove, by a preponderance of evidence, a contract of agency between plaintiff and defendants, or either' of them ?
“(2) That if any contract of agency did exist between plaintiff and defendants or either of them, was it a special agency, and not a general agency?
“(3) Did defendant Collins have authority to bind the Novelty Leather Works by a contract of agency?
“(4) After all improper, incompetent, irrelevant, and immaterial evidence is excluded, has the plaintiff proven his case by a preponderance of the evidence?”

Plaintiff was not called as a witness nor present at the hearing, owing, as was claimed, to a serious illness and nervous disorders; his physician who testified to his condition and the history of his case at length saying, in part:

“As a matter of fact; I don’t think he will ever be able to testify without serious injury to himself * * * I don’t think he will (be able to testify again), because any little excitement upsets him; he is liable to a relapse and a loss of memory at any time, from every exertion.”

Upon this showing plaintiff’s counsel offered, and defendants’ counsel objected to, plaintiff’s testimony taken upon the trial of a case in justice’s court, on December 16, 1913, between himself and the Novelty Leather Works, wherein he testified in detail as to the validity of the claimed contract involved here. The court intimated misgivings as to the admissibility of this testimony and received it tentatively, inviting authority from plaintiff’s counsel, and saying, “I do not conceive how I could consider such testimony in my final determination in this case.” In the final determination the court announced the opinion that this testimony was incompetent and that neither it nor certain other hearsay testimony which had been offered would be taken into consideration in deciding the case; but, eliminating all such testimony, the court was satisfied from the correspondence and other competent evidence that the contract claimed for plaintiff had been proven, and he was entitled to the decree rendered.

Authorities are cited and argument offered in the briefs of counsel upon each side as to the admissibility of Neal’s former testimony; plaintiff’s counsel contending that it is admissible but, if not, the decree is sustained by other competent evidence, while defendants’ counsel urge that it was rightly rejected, and without it the decree is not sustained by competent proof. We do not think the testimony satisfactorily showed plaintiffs illness was so severe and of such permanent character as to warrant the admission of his former testimony, and for that, if no other reason, it was properly excluded. Siefert v. Siefert, 123 Mich. 664 (82 N. W. 511).

As to Collins’ authority to bind the Novelty Leather Works, we think it conclusively shown that, not only was his action in the particular under inquiry ratified by a majority of the directors of the corporation, but as its president and general manager such action was within the scope of his authority. Ceeder v. Lumber Co., 86 Mich. 541 (49 N. W. 575, 24 Am. St. Rep. 134). He and Bennett, the treasurer, constituted a majority of the directors and both were actively connected with the affairs of the company in official capacities; their statements and admissions in that capacity and connection would be competent evidence.

In the course of the company’s business, Bennett, one of its directors, wrote plaintiff on October 17, 1913, using a letter head of the Novelty Leather Works, showing him to be its secretary and treasurer, in part as follows:

“We have your letter of the 16th, which is carefully noted. * * * My understanding of the matter is as follows : That the arrangement between you and Mr. Collins was that you were to assist him in presenting and demonstrating the curtain, and in securing its adoption by the various automobile manufacturers, and that for your services, and the use of your office and so forth, you .were to receive ten per cent, of the net amount received for the licenses. * * * Otherwise I see no reason why it should not be continued, but in any case, I see no reason why we should pay you commission on royalties received and also payment for office rent, use of your car, etc.”

William Paul, a former employee of defendants, testified that in a conversation with Collins in June, 1912, in regard to the curtain device,

■“he (Collins) told me he had been out on the road and was not quite satisfied and was going to get Mr. Neal' as general agent on a 10 per cent, basis he said.”

Allen Neal, plaintiffs son, testified that after ColJins and his father had severed relations he talked with the former about their matters, and in that conversation

“he told me that he used to go around with him a good deal, and I asked him what kind of an arrangement he had with father, and he told me father was to get 10 per cent, on all business; he was a general agent and he was to get 10 per cent, on the receipts.”

We think the foregoing testimony as to statements and admissions of the president and general manager of the company were competent, that from such testimony in connection with the written evidence in the case the trial court was fully justified in the conclusions reached, which we discover no occasion to disturb.

The decree is affirmed, with costs to plaintiff.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


author: Steers, J.

text:
    STOTTS v. STOTTS.
    1. Husband and Wife — Assignment of Contract — Fraud—Ante-nuptial Assignments.
    A prospective husband does not commit a fraud upon his intended wife by the assignment, one day before his marriage, of his interest in a land contract to one of his daughters, so as to render the assignment void as to her, because depriving her of rights of homestead and dower, especially where the assignment was intended to relieve the assignor of what had become, because of his financial condition, an onerous obligation.

    2. Evidence — Leases—Consideration—Nominal Consideration. ■
    The real consideration of a lease, the consideration of which is stated as being one dollar, may be shown, if material.

    3. Homesteads — Character—Intent.
    A homestead right is an artificial estate in land for the protection of the family in possession of it as a home, and its character as such depends upon both possession and the actual intention of the parties, and, while the owners may live elsewhere temporarily, and, intending to return, retain their homestead rights, it is largely a matter of continuing intent, and is a fact to be proved like any other fact.
    4. Same' — Abandonment—Consent of Wife — Presumptions.
    If a homesteader removes with his family the consent of ,his wife will be presumed.
    ■5. Same — Abandonment—Evidence.
    Evidence held, to show an abandonment by a husband and wife of homestead rights in property occupied as a homestead.

    6. Husband and Wife — Homesteads—Assignments.
    A wife is not deprived of her homestead rights by the assignment of a life lease in a homestead, in which she does not join.
    7. Same — Homesteads—Estoppel—Laches.
    A husband and wife are estopped by their conduct and by laches from asserting homestead rights in a life lease of land bought under contract, where they abandon the property for 12 years and only make claim to it when the contract has been paid up by one daughter to whom the. father had assigned the contract and by another daughter and her husband, and the father had been more than compensated by what his older daughters did in raising and educating one of his children.

      Appeal from Wayne; Van Zile, J.
    Submitted June 8, 1917.
    (Docket No. 26.)
    Decided December 27, 1917.
    Bill by George E. Stotts and another against Elizabeth Stotts and another to quiet title to land and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      William, C. Gottman and Charles C. Stewart, for plaintiffs.

      Anderson, Wilcox & Lacy, for defendants.

       On parol evidence as to consideration of a deed, see notes in 20 L. R. A. 101; 25 L. R. A. (N. S.) 1194.

       On conveyance of property in contemplation of marriage, but before negotiations for marriage have begun, as a fraud on the subsequent husband or wife, see note ip 9 L. R. A. (N. S.) 955.

       As to effect of abandonment of homestead by parent on rights of children, see note in 56 L. R. A. 80.

   Steers, J.

Defendants Elizabeth Stotts and Alberta Stotts Auringer are daughters of plaintiff George E. Stotts. He and plaintiff Sarah Stotts, his second wife and their stepmother, filed this bill to recover the title to and possession of a house and lot in the city of Detroit known as 1287 Wabash avenue, appraised by real estate men at approximately $2,300 or $2,400. In-, 1913 and 1914, it was valued for taxation at $1,220 as shown by the assessment records for those years. The legal description of the premises is:

“Lot No. six hundred and twenty-two (622) situated on the west side of Wabash avenue according to a plat of Godfroy farm p. c. 726 lying north of Grand River avenue, recorded in the office of the register of deeds in Wayne county,” etc.

Stotts first bought the vacant lot in 1890 for $575 under a land contract from the then owner, A. L. Hall, a real estate dealer who was represented in the transaction by John Wynne acting as his agent.. He then made a payment of $250, having recently sold a lot in Canada for about that amount. The following year he made arrangements through Wynne to borrow from Hall $1,060 for the purpose of building a house on the lot. A new land contract dated May 14, 1891, including that amount, was then substituted for the former one, the total consideration being $1,385, payable at the rate of $20 per month with interest on deferred payments. Stotts thereafter occupied this property with his first wife and their family until she died, on January 17, 1901. When they moved upon the premises, in 1891, they had four children whose names and ages were as follows: Elizabeth, 12 years; Alberta, 10 years; Edward, 3 years; Vera, 1 year. In 1895 a niece of his wife named Jane Gault, one year younger than Vera, was added to the family. The largest wages Stotts is shown to have earned was $70 per month, and with family expenses, sickness, etc., he fell behind in his payments upon this land contract until there remained a balance yet unpaid of $953.20 when the whole amount had become due, in 1897. Between that time and April, 1903, when he married his second wife, the amount was reduced to $768.12, an average reduction of $2.25 per month. When Stotts’ first wife became ill some time before her death, his eldest daughter, Elizabeth, who had been working out for a year or so and contributed to the family support, gave up her employment, remaining at home to care for her mother and the children and doing the household work. After her mother’s death, she continued at home as housekeeper for her father and cared for the family.

Owing to Stotts’ continued delinquency in payments on his contract, Mr. Wynne, representing the Hall estate, became so dissatisfied that in 1903 he threatened foreclosure unless larger payments would be made. Stotts was then contemplating marriage with his present wife, Sarah, and proposed to assign the defaulted land contract to his daughter Elizabeth. He testified that his reason was the older daughters made it unpleasant for him when he told them he was going to get married and they agreed if he would do this “everything would be lovely.” He also denied that Mr. Wynne had ever told him he was in default or pressed him for payment. Wynne testified that, after he had insisted on Stotts making larger payments and written him relative to the matter, Stotts came to his office with a proposal to assign the contract to his eldest daughter, Elizabeth, “because he thought it would be more desirable,” and Wynne told him if that was done he would show more leniency, saying:

“I insisted upon some arrangement whereby he should make larger payments on the contract. It had got to a point where we had to do something. I was satisfied to have him assign it to his oldest daughter; she had been working, and the other daughter was going to help, and it struck me that the two young ladies that were paying for their home would use every effort.”

An assignment of Stotts’ contract to his daughter Elizabeth was thereupon drafted by Wynne and signed by the contracting parties, on April 21, 1903. Upon the same date, Elizabeth gave back to her father a life lease of the property. The expressed consideration in each of these instruments was one dollar.

Stotts’ first wife, who died after a lengthy illness, had then been dead about two years, and Elizabeth had from the beginning of her mother’s disability devoted herself to caring for the home and family. Owing to the extra expenses in connection with his first wife’s sickness and death added to the burden of his family maintenance, Stotts had become financially embarrassed and badly in debt; but with the help of Elizabeth he kept the family together and the younger children in school. The second daughter, Alberta, was attending the public training school for teachers when her mother died and began teaching the following fall. She lived at home and helped as she could there, contributing from her earnings to the family maintenance. During the two years following the first Mrs. Stotts’ death, Stotts was manifestly interested in and doing what he could for his children, and with the help .of the two older daughters the family remained united, living together in pleasant and harmonious relations.

Stotts worked for the Detroit Omnibus Company and became acquainted with his present wife, who was for a time a waitress at the lunch counter in the Union Depot. When he announced his purpose to marry her, she was working in a restaurant opposite, the Michigan Central Depot. The two older daughters frankly admit that when they learned who it was he intended shóuld take the place of their deceased mother they were opposed to the marriage and tried to dissuade him because they felt, from what they had learned of her, she was not the proper person to place over the younger children nor good enough to be their father’s wife; that he was badly in debt, not in a financial condition to marry, and the proposed marriage could only result in disappointment and trouble; but when he persisted in the project they acquiesced, and after the parties were married, at Windsor, across the river, on April 22, 1903, they visited her in friendly recognition of the new relationship and urged her, as he desired, to come with their father to the family home to live with them. This the newly married couple soon did, and Stotts states the daughters were very nice to him and his wife for a few days, until a demand was made upon them to pay board, when trouble started. His daughters ascribe the trouble which developed to other causes, claiming that the stepmother was not pleased with the ready-made family of her husband, was unkind to the younger children, dissatisfied with the place and surroundings, unaccustomed to and disliked the burden of caring for a household, preferred the downtown district, where she said it was more lively, was often away large portions of the day, neglected the home and failed to provide or prepare food for the children, was inclined to be severe with the younger members of the family and quarrelsome with the older ones, and by her complaints to and influence over their father disaffected him towards them. It is undisputed that uncongenial conditions soon developed in the family, and Stotts sided with his wife in the disagreements which arose. After remaining there about three months, Stotts and his wife left. He gives as reasons that his children made it uncomfortable, “quarreling night and day with me,” and “we left and went downtown, and wanted to keep roomers and make what money we could.”

The evidence indicates quite clearly that, in deference to his wife’s desires, Stotts planned and prepared to release himself so far as possible from his former family relations and responsibilities, to permanently abandon his former home and its burdens, and go with her where she preferred to live. He had been carrying $3,000 life insurance for years, which, after his. first wife’s death, he had made payable to his older daughters; the policy being in Elizabeth’s possession. He asked her for the policy and said he wanted to make his second wife his sole beneficiary. Elizabeth protested that the younger children should participate to some extent, to which he indicated assent, and she gave him the policy with an understanding that he would make his wife a beneficiary to the extent of $2,000 and Elizabeth $1,000, “to hold for the younger children.” He testified that later he made it all payable to his wife. It was agreed the older girls would keep Vera and he would assign his life lease of the property where they lived to Elizabeth. He claimed to have lost the original, and Alberta went to the office of Judge Jeffries, who had prepared it, to obtain a duplicate claimed to have been left with him, but which he was unable to find; he, however, gave her a blank form and dictated to her the written portion, which she then wrote in pencil. On her return home she wrote the words over in ink, when Stotts signed and dated it as of April 21, 1903; Elizabeth also signing it, and Alberta signing as a witness. In its essentials this copy corresponds with the original, which he claims to have found years later amongst some old papers in his trunk and produced at the hearing. He thereupon executed the following assignment indorsed upon the instrument:

“In consideration of $1.00 (one dollar) I hereby assign and transfer all my right unto and interest in within lease to Elizabeth Stotts.
“Dated July 21, 1903.
“G. E. Stotts.”

On July 23, 1903, Stotts and his wife left the place and established their home elsewhere, taking with them his boy Edward and the adopted girl Jane. They also took substantially all the furniture and household effects. Some unpleasantness developed over this; Elizabeth especially protesting against their taking the piano, which her father had given her, and insisting that if they did she should be paid for her services as housekeeper during the time she had remained at home since her mother’s death working without wages. The matter was compromised by the piano being left in consideration of a receipt in full for her wages.

Although prior to his second marriage Stotts had manifested an affectionate interest in the welfare of his children and, as they testify, was kind to them, he thereafter underwent a radical change in that particular. Having relieved himself of and, severed all relations with his daughters, within three months thereafter he turned Edward, his only child remaining with him, out of his house and sent him adrift. Edward returned to his sisters, who received and cared for him as a member of their family, bought him clothing, paid for his nursing, surgical services, and hospital bills during a serious illness, and assisted him until old enough and well enough to support himself. Jane, the adopted girl, remained with Stotts and his wife until 18 years of age, when she left to work out and care for herself. At the time of hearing this case, she was a married woman, apparently pleasantly situated, with a home and family. She appeared as a witness for defendant. Amongst other things, she told of Edward being put out soon after they moved downtown, and said:

“Mrs. Stotts used to strike me once in a while. She had a rather quick disposition, and when she is angry she acts quite angry, and has a pretty good sized temper.^ ¡

Mrs. Stotts’ acrimonious testimony on cross-examination lends color to this view.

For twelve years after plaintiffs had left these premises under the circumstances related and relieved themselves of his children. by his first wife, they never visited the family or place, manifested no interest in either, made no claims and recognized “none either as to the place or family, and all advances made by the children to be on friendly terms with their father were rejected or ignored. When at different times notified of the serious illness of his two younger children, as the daughters testify, he did not visit them, manifested no interest, and refused to help the older girls in defraying Edward’s expenses at the hospital, where he underwent a necessary surgical operation. Of this, Stotts testified in one portion of his examination that the older girls had agreed to support those children, and he wanted them to keep' their agreement; that after he left he had “no communication with them at all” and did not know of the serious illness of either of the children. He also admitted that he himself put Edward out of his house and knew that “Elizabeth and Alberta helped him in the hospital and took care of him,” stating that he was under no obligations to provide for his youngest child Vera, “because they agreed to support her if I would leave her with them.” They did in fact support, clothe, care for, and send her to school for over seven years, until she graduated from the high school'and had secured a position, after which she lived with her sisters and paid board until married. Telling of their early experiences after their father left them, she concluded her direct testimony by saying:

“Our struggle was very difficult, and we had a hard time to get along. I am now married, have a happy, pleasant home, and a little baby.”

After Alberta had taught successfully foi; a time, helping Elizabeth in the support of Vera and payments on the place, she married, and for some years she and her husband lived with Elizabeth and Vera, under an arrangement by which they helped make repairs on the house and payments on the property; Elizabeth having some time before assigned to Alberta a half interest in the land contract. In 1908 they all moved from the place, and it was rented thereafter, bringing $18.50 per month rental most of the time. During over 12 years following plaintiffs’ hegira under the circumstances shown, his daughters not only relieved Stotts of the care and support of the two younger children, but paid the taxes, insurance, and repairs on the property, and made payments to Mr. Wynne upon the contract as best they could, until it was finally fully paid and the deed ready to deliver to them, when plaintiffs began this suit and restrained delivery by. temporary injunction. Wynne testified that he then had the deed made out, and was about to deliver it, when the injunction was served upon him, and knowing the girls and the family for years, he went to see Stotts about it; but Stotts then asserted his signature to the assignment of the contract to Elizabeth was a forgery, which Wynne knew was false, as he had seen him sign it, and so he refused to talk further with him. This Stotts denied, and admitted executing the assignment of the land contract, but swore that his claimed signature to the indorsed assignment of the life lease to Elizabeth was a forgery. Not only was the testimony otherwise convincing to the genuineness of the indorsement, but when confronted with this signature in connection with several others which he had testified were his, all so arranged that he could not tell to what documents they belonged, he unequivocally identified this signature as genuine and pointed out one of the others as the forgery. His excuse for slumbering upon his claimed rights for over 12 years, and until the land cohtract had been paid in full, was that he only discovered his lost life lease amongst some old papers in his trunk shortly before he instituted proceedings.

The three propositions upon which he bases his right of recovery are stated in his counsel’s brief as follows:

“First. The assignment by George E. Stotts to Elizabeth E. Stotts, one day before the marriage, was a legal fraud as to Sarah, thereby depriving her both of a homestead and of dower, and was void as to Sarah Stotts.
“Second. The life lease, being in writing, could not be contradicted by parol.
“Third. Such life lease, if valid, could not be assigned or surrendered while the premises were occupied as a homestead without the wife, Sarah Stotts, joining in the assignment or surrender.”

We discover little force in the first proposition. At the time the contract was assigned to Elizabeth, defendants sustained no family or fiduciary relations with Sarah. She was not Stotts’ wife nor a member of his family. Whatever fraudulent representations he may have made'to her as to this property, as an inducement to marry him, it is very evident defendants were not aiding or abetting him, nor in any sense a party to them. In fact, ás matters then stood he was unloading upon his daughter a liability which was pressing him, rather than an asset, spurred to do so by Wynne’s demand that something be done and a threat to foreclose, coupled with the inducement that leniency might be shown the older daughters, in whom he had more faith than in Stotts."

The proposition that the life lease in writing could not be contradicted by parol is directed to the admission of parol evidence as to the consideration for it. The expressed consideration in the assignment of the contract to Elizabeth, the life lease from her to Stotts, and his surrender of the life lease to her was but merely the nominal sum of one dollar. Defendants were permitted to show against objection that the mutual obligations and considerations for the assignment of the land contract and contemporaneous life lease were that, in anticipation of the family living together in the home, which he was otherwise about to lose, Elizabeth would accept and assume the burden of the contract with Wynne, paying $20 per month thereon and interest, while Stotts on his part would pay her $10 per month to be applied on the land contract, and make necessary repairs on the property. During the three months he remained there with his wife he paid but $10. The consideration for the surrender of his life lease was not only a release from the $10 per month he was to pay, the repairs upon the premises he was to make, and all other burdens, in connection with the contract, but from the care, education, support, and maintenance of Vera, as Stotts himself testified. While denying the reassignment of the life lease, he testifies that, at the time he and his wife moved away:

“The arrangement was, if I left Vera, that they would take care of her and support her and she would be no bother to me.”

While the consideration expressed in a written instrument is prima, facie to be taken as the actual consideration, the rule is well settled by abundant authority that parol evidence is admissible to show that the true consideration was greater than or different from that expressed. That there was a consideration in addition to the nominal one stated may always be shown when material. An examination of the following citations, and others to which they lead, will make clear the rule and reason for it: Mowrey v. Vandling, 9 Mich. 39; Colman v. Post, 10 Mich. 422 (82 Am. Dec. 49); Kimball v. Myers, 21 Mich. 276 (4 Am. Rep. 487) ; Trevidick v. Mumford, 31 Mich. 467; Garton v. National Bank, 34 Mich. 279; Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161); Wood Mowing & Reaping Mach. Co. v. Gaertner, 55 Mich. 453 (21 N. W. 885) ; Flynn v. Flynn, 68 Mich. 20 (35 N. W. 817); Macomb v. Wilkinson, 83 Mich. 486 (47 N. W. 336); Cook v. Curtis, 68 Mich. 611 (36 N. W. 692) ; Cutler v. Steele, 93 Mich. 204 (53 N. W. 521); Church v. Case, 110 Mich. 621 (68 N. W. 424) ; Brown v. Smedley, 136 Mich. 65 (98 N. W. 856); Ruch v. Ruch, 159 Mich. 231 (124 N. W. 52) ; Scovel v. City of Detroit, 159 Mich. 95 (123 N. W. 569) ; Blanchard v. Ridgeway, 179 Mich. 491 (146 N. W. 139) ; Smith v. Maxey, 186 Mich. 151 (152 N. W. 1011) ; Jones on Evidence (2d Ed.), § 469; Velten v. Carmack (20 L. R. A. 101), 23 Or. 282 (31 Pac. 658).

The trial court was not in error in permitting evidence of the true consideration for the instruments involved in this controversy and of the performance or nonperformance of their obligations by the parties to them.

It is undoubtedly true, as contended by plaintiff, that by an assignment of his life lease in which his wife did not join Stotts could not deprive her of whatever homestead fights she held under if. At the time she married him, he, as the holder of the life lease, was but a tenant of Elizabeth, under an agreement to make repairs upon the property and pay $10 per month to help her make good his former delinquencies on the land contract and save the property. His- wife’s homestead rights rested on his tenure, and at the time they abandoned the property he had defaulted in his obligations to-assist in paying up the contract. A “homestead right” is an artificial estate in land for the protection of the family in possession of it as a home. Its character as Such depends upon both possession and actual intention of the parties. Though they may live elsewhere temporarily and, intending to return, retain their homestead rights, “it is largely a matter of continuing intent, and is a fact to be proved like any other fact.” Hoffman v. Buschman, 95 Mich. 538 (55 N. W. 458).

“Where the owner leaves his homestead, it is incumbent upon him to prove an intention to return, since a removal is ordinarily prima facie evidence of an abandonment. If the homesteader removes with his family, the consent of his wife will be presumed.” 21 Cyc., p. 621.

While living there, Sarah did- not like the place, was dissatisfied with the location because too remote and quiet, said she would die if she had to live there, that it was too slow for her, and. she wanted to move downtown. That her husband yielded to her importunities, made his plans accordingly, abandoned the place and project of helping pay for it, and they by mutual consent left together with no intention of ever returning to it as their home, is fairly shown both by what transpired at the time of their departure and their conduct in the years which followed.

The surrender of the life lease to Elizabeth by Stotts’ assignment indorsed upon the back without his wife’s signature, even if irregular, informal, and without force against her homestead rights, was a part of the program of separation from his children, and all relations with them, and, in connection with other attending facts and circumstances, is at least evidence of an intention on his part to permanently abandon this property and with his wife make a home elsewhere. She was neither forced nor deceived into going, but, on the contrary, was anxious to go. We are well satisfied that the facts and circumstances show an abandonment of this property by them with such in-' tent and purpose for the future that its character as a homestead ceased as to them. Thereafter they remained away and silent for more than 12 years, claiming nothing and doing nothing as to this property until his younger children were of age and out of the way, and the contract upon which he had defaulted fully paid up; then, under such changed conditions, they for the first time seek to assert the wife’s homestead rights to the property on the ground that she did not join her husband in the surrender of his lease,'Which was of doubtful value, and, aside from other considerations, had been more than fully compensated by what his older daughters did in raising and educating his youngest child.

We agree with the trial court in the conclusion that, not only was the burden of Stotts placed upon his daughters by the contract, as its terms are admitted by him, unfair and unconscionable, but that by their subsequent conduct and laches plaintiffs are now estopped from asserting the rights they claim in a court of equity. Bovine v. Selden, 155 Mich. 556 (119 N. W. 1090, 130 Am. St. Rep. 579).

The decree of the trial court is affirmed, with costs to defendants.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.