author: Grant, J.

text:
    PROVOST v. BRUECK.
    1. Trial — Charge to Jury — How Construed.
    Where the charge- of the court, taken as a whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable when considered independent of the context does not constitute reversible error.
    2. Libel and Slander — Res Gesme — Malice.
    In an action for slandei-, evidence of an altercation so connected with the utterance of the alleged slanderous words as to form a part of the res gestee is admissible as bearing upon the question of malice.
    8. Same — Evidence.
    In an action for slander against a priest for words spoken from the pulpit, testimony of witnesses who were present, to the effect that they understood defendant to mean the plaintiff, because “he referred to a ‘barber,’ and made a motion with his hand about a razor,” was not lire judicial, where the defendant admitted that he used the word “barber” in his talk, and that plaintiff was the only barber in his church.
    4. Trial — Remarks oe Counsel — Harmless Error.
    The fact that counsel, in offering incompetent testimony, makes improper statements, is not ground for a reversal, where the testimony is promptly excluded, and it appears improbable that the jury were prejudiced by the remarks.
    Error to Iosco; Simpson, J.
    Submitted June 18, 1896.
    Decided July 8, 1896.
    Case by Eugene Provost against Joseph Brueck for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, in an action of slander, recovered against the defendant a verdict and judgment for $800. The defendant was a Catholic priest at East Tawas, and the plaintiff was a member of his church. The language was uttered in the pulpit, in the presence of the plaintiff and the congregation. The declaration alleges:
    “That the defendant then and there spoke, published, and declared, of and concerning the plaintiff, the following'scandalous, malicious, and defamatory words, to wit: ‘That man over there (waving his hand towards plaintiff, and meaning the plaintiff), that caused the disturbance today (meaning that plaintiff had been ordered by ■defendant to leave his pew in the church when he, said plaintiff, and his family, were peacefully occupying the same, and, on plaintiff’s refusal to leave as aforesaid, the defendant had broken and destroyed and cut up the said pew with an ax, and had created much confusion and disturbance thereby, and brought the attention of the congregation and those present to the said defendant and plaintiff and the said pew), he owes me (meaning said plaintiff owed said defendant) for baptizing and the funeral of his bastard (meaning that said plaintiff was the father of a child which had been born out of wedlock, and that he, said plaintiff, owed said defendant for performing the religious ceremony of baptism and the further religious ceremony of burial of said bastard child); ’ that said words were spoken from the altar of the Catholic church in East Tawas, known as ‘St. Joseph’s Church,’and in the presence of the congregation of said church, and in a tone ■and manner loud and plain enough to be distinctly understood by the members of said congregation, and were intended by said defendant to be understood by them.
    “ ‘He (meaning plaintiff) thinks he’s a pretty big man when he’s in the barber shop (meaning the shop of plaintiff), with a razor in his hand. I (meaning defendant) would not advise people to go there (meaning to plaintiff’s shop). All he (meaning plaintiff) is good for is to cut a man’s throat (motioning -with defendant’s hand across his throat, and meaning that plaintiff would cut men’s throats when they went to his shop to be shaved). I could have him (meaning plaintiff) arrested, and taken to the coop (meaning that defendant could make complaint against plaintiff for some crime, and have him lodged in jail); and he’d have to stay there and rot; nobody would go his bonds (meaning that plaintiff was guilty of some crime, for which defendant could have him imprisoned, and that his character and reputation in the community was such that he was without friends who would be willing to furnish bail for him, and that he could not procure bail, and would have to stay in jail). The French (meaning plaintiff and others of his nationality) are all a low class. They (meaning the French) are a disgrace to the church (meaning the Catholic church of East Tawas). They are rotten bones. He (meaning plaintiff) was a scoundrel and a scandal to the town. He (meaning plaintiff) was a scoundrel before he left here • (meaning that plaintiff was a resident of East Tawas, and removed to Au Sable about eight years ago, and afterwards returned to East Tawas), and is one (meaning scoundrel) yet. He (meaning plaintiff) goes around town from one place to another, playing pedro and drinking whisky (meaning that plaintiff was idle and lazy and dissipated, and neglected his business, by frequenting the saloons and gambling places, and that he was not attentive to his business, and could not be found regularly in his shop by his customers).’”
    The defendant was entitled to rent the pews in the church. The pew over which the trouble arose had been used by the plaintiff, who, it is claimed, was in arrears. The defendant had leased the pew to other parties. Plaintiff and his family, on the day of the trouble, took the seat. The party to whom it had been rented went to the vestry room of the church, and informed defendant, who thereupon took two axes, or an ax and a hatchet, went to the seat, ordered the plaintiff out, and, upon his refusal to go, commenced to knock the seat to pieces. Returning, he almost immediately entered the pulpit, and, it is claimed, used the language charged. The testimony on the part of the plaintiff is direct and positive that the language above stated in the declaration was used. The defendant’s version of the transaction is stated by him as follows:
    “ On the fourth Sunday of January he was sitting in the pew, and I asked him to get up and go out. He got up, and went a little in front of the pew. When I had ordered him out, I said I would remove the seat. I said: ‘ That is the only way to get you out. I see you don’t obey my orders. You intend to spite me, so that I will remove the seat,’ so that he could not have it any more. That is all that was said. I broke the seat with the hatchet. I came down stairs, and drpssed for services, and made an explanation to the people that ‘ I am sorry and feel really ashamed that such a thing happened in the Catholic church,- — such a disturbance, that I was forced to go up and remove the seat. It was a scandal. ’ Then I had high mass, and preached for high- mass, and in the sermon I referred to that affair again, and I said I was sorry that it happened; that I could have him arrested, but I disliked to call in a non-Catholic officer into the Catholic church to keep order, and nobody could bail him out on that day, — Sunday. Then I referred to the fact of the New Year’s celebration, and I said that it was a great scandal to non-Catholics especially, the way they spent New Year’s night and New Year’s day, by going around and scandalizing people by immodest language, and of filling up with bad whisky, and using scandalous conversation; ‘ and you must not be surprised for that reason, when such things are going on, that there are so many illegitimate children in the community;’ that there were two dozen or more; and that the French had given their most generous contingent in the matter of bastardy. I said the French because more cases of the French had occurred than any other nationality. I said it was the French custom to celebrate that way. Then I referred to the opposition that was shown to me for years. I said: ‘They are cutting the throats of this community. I know it, for they tried to cut my throat three years ago, when they approached the bishop, on confirmation, to have me removed; and they are -trying to do that again.’ I said, ‘They are cutthroats, — these enemies of mine;’ that these people oppose me in all things, and I would never trust the scoundrels again. ‘When a man tries to cut my throat once, I would never trust him again, nor would you trust your throat to a barber who was your deadly enemy. You would not.’ I said: ‘These things that have happened in this parish are a scandal to outsiders, and I am ashamed of it.’ I said: ‘I have mentioned no names. Judge yourselves who is guilty, and who is innocent. Woe to those who give scandal. I have said my last mass. I am going to see the bishop about it.’ I did not speak of Provost when I spoke of bastards. I said there were parties in the community who have forgotten to pay for the baptism and burial of their illegitimate children. I did not speak to Provost in that connection. I did not, at any time during that statement, point my hand at Provost, hut I made gestures, of course.”
    Other testimony was introduced to corroborate him.
    If the jury believed the evidence on the part of the plaintiff, he was entitled to a verdict. If they believed that on the part of the defendant, the verdict should have been, “No cause of action.” The issue in this form was very clearly stated to the jury by the court. The court said to the jury:
    “If the defendant in this case uttered the language that he says he uttered with the intention that he uttered it, it was no libel against Mr. Provost, or slander either. It would not be anything that Mr. Provost could recover for.”
    Again, he said to the jury:
    “If the defendant, on that morning, although he may have been in a high temper, although he may have felt that the rules of his church had been violated, although he may have gone up there and broken up this pew, and felt sorry for it afterwards, I say if, when he made these utterances, he was directing them towards his congregation generally, — I do not care whether he was wrong in uttering words to his congregation that he even says he uttered, — Mr. Provost could not bring him to account for that. This is a matter of public right that all clergymen have a right to do; that is, to preach to their congregations against wrongs that they think exist.”
    Other language of similar import was used. The court also instructed the jury that the words upon which the slander was based were slanderous per se, and, if they found by a fair preponderance of evidence that such language was used, the plaintiff was entitled to a verdict.

      Charles A. Jahraus (M. J. Connine, of counsel), for appellant. ■

      Albert E. Sharpe, for appellee.
   Grant, J.

(after stating the facts). There are 48 assignments of error, most of which relate to the charge of the court. The charge is eminently fair, was a correct statement of the law of slander applicable to the case, and very clearly defined the issue which the jury were to decide. It will appear from the portions of the charge above given that the judge very emphatically and clearly instructed the jury as to the right of the defendant to attack the immorality which he believed to exist in his congregation, and that for this he could not be held liable, unless such immorality was charged to the plaintiff. It would be of no benefit to the parties or to the profession to here discuss the rule laid down by the circuit judge, and which has been so frequently discussed and determined by the courts and text writers. Isolated sentences might be selected which in themselves would be objectionable, but to which no valid objection can be made when they are considered in connection with the entire instruction. We find no error in the charge of the court.

It remains to consider some exceptions to the admissibility of testimony and statements of counsel. Counsel for plaintiff, in his opening statement, referred to the origin of the trouble, namely, the destruction of the pew, and what then occurred, as the evident cause of the use of the language. Testimony was also introduced as to what then occurred. This was received under exception. It was a part of the res gestee, and was competent as bearing upon the question of malice.

Two witnesses were permitted to testify under objection that they understood the defendant, in what he said, to refer to the plaintiff. These witnesses testified that he looked towards the plaintiff while he was talking, and pointed to him. One of these said he understood defendant to mean plaintiff, because ‘ ‘ he broke the pew he was sitting in; and when he made the motion with his hand about the razor, and about his being a barber, because he was the only barber in the church, I understood that he meant Eugene Provost, the barber.” The defendant, in his cross-examination, admitted that lie used the word “barber” in his talk, and that he had no other barber except the plaintiff in his church. In view of these facts, we do not think it was possible for the jury to be misled by the testimony, which might properly have been excluded. This subject was discussed in Farrand v. Aldrich, 85 Mich. 593.

Complaint was made of certain statements made by the counsel for the plaintiff during the progress of the trial. The question was asked the defendant on cross-examination: “Did you have any liquors in your house?” Under objection, this was promptly and properly ruled out as immaterial. Counsel then stated: ‘ ‘ He preached against the effect of having whisky in the house, and I want to find out if he had any himself.” Again the court ruled that the testimony was incompetent, without even waiting for an objection to be made. Thereupon plaintiff’s counsel again stated: “We offer to prove that he keeps large numbers and kinds of liquors in the house, and that he is in the habit of using them himself.” Again the court said: “I don’t think it could be material.” Plaintiff’s counsel then stated: “It is where a man preaches against such things, and undertakes to justify himself for attacking the people on that ground.” The court promptly said: “I don’t see how it would make any damages, or prevent any.” Plaintiff’s counsel again stated: “It would have something to do with the credibility of his testimony; not if he is honest about it, but goes around the street preaching against it.” To these remarks the defendant’s counsel objected as prejudicial, and took an exception to them. Counsel should have rested content with the ruling of the court when the question was asked. It was clearly incompetent, and it is impossible to conceive that counsel for the plaintiff did not know it. It deserved severe reprimand from the court. The court properly ruled the testimony out, as wholly immaterial. We think, however, that it would be a reflection upon the intelligence of the jury to ■say, as a matter of law, that they were prejudiced by these remarks. Such matters must be left largely to the trial judge,' whose duty it is to promptly check such statements when offered, and to instruct the jury that they must pay no attention to them.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DELAVAN v. WRIGHT.
    1. Fraudulent Conveyances — Consideration.
    A conveyance of land in consideration of the agreement of the grantee to pay a mortgage thereon, the amount of which, with interest, exceeded the value of the premises, and to provide a home for the grantor, will not be declared fraudulent as to a creditor of the latter, who, for two years thei’eafter, althpugh he himself had knowledge of the transaction, left the grantee in ignorance of -his claim.
    3. Statute oe Frauds — Parol Agreements as to Lands — Part Performance.
    A parol agreement by a grantee to pay an incumbrance on the. lands conveyed, and to provide a home for the grantor, may be taken out of the statute of frauds by part performance.
    Appeal from Gratiot; Smith (Stearns F.),J., presiding.
    Submitted June 18, 1896.
    Decided July 8, 1896.
    Bill by Henry A. Delavan, administrator of the estate of Nicholas Demoray, deceased, against Charles E. Wright and Amanda Wright, to set aside a deed as in fraud of decedent’s creditors. From a decree for complainant, defendants appeal.
    Reversed.

      B. H. & L. B. Sawyer, for complainant.

      Stone Jr Salter, for defendants.
   Hooker, J.

Nicholas Demoray, being the owner of a farm which was incumbered by a mortgage of $1,000 that he was unable to pay, and upon which interest for two years was due, to avoid the loss of his home through a threatened foreclosure, deeded the place to the defendants, upon the oral promise of Charles Wright to pay the debt secured by the mortgage, and to provide a home for Nicholas Demoray, who was then approaching 80 years of age, and his wife, for the remainder of their lives. The defendant Charles Wright paid the mortgage in part, and caused a friend to obtain it by assignment for him, and allowed Nicholas Demoray to remain upon the place until his death. His widow lived there with her son for two years longer, when defendants let the farm, offering to Mrs. Nicholas Demoray a home in Illinois, or to furnish her a home by herself, which she declined to accept. Defendants made some improvements upon the premises, and paid taxes and insurance, amounting, with the amount of the mortgage paid and assumed, to nearly $1,600. Defendant Amanda Wright was the daughter of Nicholas Demoray, and wife of her codefendant. The deed was executed and delivered February 4, 1888. Nicholas Demoray died in 1890.

The complainant claimed to be a creditor, and was appointed administrator on or about October 24, 1893. Commissioners on claims were appointed, and the only claim filed was one by the complainant on a note; the amount claimed being $200. It was admitted on the hearing of this cause that the claim was allowed by the commissioners. This bill was filed under 2 How. Stat. § 5884, to reach the land in question, upon the ground that it was a fraud upon the complainant, who appears to have been the only creditor.

At the time the conveyance was made, and for two years thereafter, the defendants appear to have been ignorant of complainant’s claim, although complainant learned of the conveyance soon after it was made. Conflicting evidence was given as to the value of the premises, but in our opinion the amount paid out and assumed by Wright, with interest, would exceed the sum that the premises are worth, without considering the question of his obligation to provide for Mrs. Nicholas Demoray for the remainder of her life.

The contention that this contract was void, because oral, cannot preclude the court from considering the equities of the parties under it, in view of the fact that the parties have entered upon the performance of it, and performed many, if not most, of its obligations. In our opinion, the complainant has failed to sustain his claim of fraud.

The decree of the circuit court is reversed, and the bill dismissed, with costs of both courts to be taxed against the complainant personally.

The other Justices concurred.


text:
    FRANKS v. BURNS.
    Appeal — Fraudulent Transfer of Stock — Findings of Fact. •Upon a review of the evidence, a decree declaring a certain transfer of corporate stock to have been made in fraud of the creditors of the assignor was affirmed.
    Appeal from Muskegon; Russell, J.
    Submitted June 17, 1896.
    Decided July 8, 1896.
    Judgment creditor’s bill by William Franks against David Burns, Julia A. Burns, and the Lakeside Iron Company. From a decree from complainant, defendant Julia A. Burns appeals.
    Affirmed.

      Bunher & Carpenter, for complainant.
    Smith, Nims, Hoyt & Erwin, for appellant,
   Hooker, J.

This case turns on a question of fact. The complainant is a judgment creditor of David Burns, and, execution being returned unsatisfied, the bill in this case was filed to subject to the execution so much óf 200 shares of corporate stock, standing on the books of the company in the name of Julia Burns, wife of David Burns, as may be necessary to pay his judgment. The proof shows that Julia Burns furnished a sum of money that was put into the business, and upon which 200 shares of stock (not fully paid up) were issued to David Burns. It is as satisfactorily shown that subsequent payments were largely made by David Burns, and the learned circuit judge who heard the cause reached the conclusion that the transfer to the wife was fraudulent, and he held that 99 shares of the stock should be subjected to the execution.

We see no reason for reaching a different result, and the decree is affirmed, with costs.

The other Justices concurred.


text:
    BEAUFAIT v. DOLSON.
    Adverse Possession — What Constitutes.
    The possession by an aged mother, after the death of her daughter, of property owned by the latter, under an arrangement that the former might continue to make the place her home, cannot become adverse as against the heirs of the daughter, until after some notorious, open, and hostile act, inconsistent with possession under such arrangement.
    Appeal from Wayne; Frazer, J.
    Submitted June 17, 1896.
    Decided July 8, 1896.

      Bill by Cleantbe M. Beaufait against Ann Dolson, Nellie E. Whitehead, and others, to quiet title. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant claims to be the owner in fee of the land described in the bill of complaint,. the object of which is to quiet her title.' She claims title by a deed executed by one Harriet E. Dolson, February 19, 1877, to William Beaufait, whom complainant afterwards married; and by deed from Beaufait to her, executed June 11, 1881, and recorded June 5, 1893. The deed to Beaufait described the grantor as “ Harriet E. Dolson, sometimes called Harriet Ann Dolson.” It is signed by her mark. It is claimed by the complainant that the Mrs. Dolson who signed the deed was the owner of the property. It is claimed by the defense that she was not the owner of the property, but that it was owned by Harriet E. Dolson, the aunt of defendant Whitehead, .and the daughter of Ann Dolson, the old lady who executed the deed, and who then resided upon the property with her daughter. Harriet E. Dolson died in 1874. It is also claimed that upon the death of Harriet it was arranged that the grandmother, Ann Dolson, should live in the house upon the property. It does not appear that Mr. Beaufait paid any consideration, unless there was an agreement that he should take care of the old lady. Ann Dolson lived in the house until 1881, when she was removed to the house of the Little Sisters of the Poor by Mr. Beaufait, who contributed to her support while there. She died about years after such removal, being then more than 100 years of age. Proofs were taken in open court, and the bill dismissed.

      Frederick W. A. Kurth (Samuel W. Burroughs, of counsel), for complainant.

      T. F. Tarsney and W. W. Wicker, for defendant Whitehead.
   Grant, J.

(after stating the facts). Complainant claims title in fee by the deed executed by Harriet E. Dolson, but that, if the deed is not valid, she and her grantor have been in adverse possession for more than 15 years prior to the commencement of this suit, which possession gives her a good title. The circuit judge filed a written opinion, in which he said :

“From the evidence, I am satisfied that the title to this property was in Harriet E. Dolson, and that the old lady known as Ann Dolson never had any title of any kind to the property; and therefore any conveyance from her to the complainant carried with it no title whatever.”

The identity of the person executing that deed is the important question of fact. The judge saw the witnesses, and the issue depends upon the credit to be given to them. Inasmuch as there is a direct conflict, we are not disposed to dissent from this finding of fact. The court very properly held that there was no such adverse possession as the law requires. Mr. Beaufait did not take possession. Ann Dolson remained in possession, with nothing to indicate that she was occupying under any arrangement with Beaufait. She remained in possession under an arrangement with Harriet E. Dolson. The heirs of Harriet E. Dolson had the right to assume that the same relation continued until there was some notorious, open, and hostile act of possession on the part of Beaufait.

The decree dismissing the bill is affirmed, with costs.

The other Justices concurred.


text:
    DILLON v. PINCH.
    1. Contracts — Evidence—Value of Services.
    In an action for money had and received, plaintiff claimed that defendant collected an insurance policy for him under an express agreement to make no chaige for his services, while defendant relied upon an alleged express agreement whereby he was to retain' one-half of the sum collected. Held, that evidence of the actual value of the services rendered was inadmissible.
    2. Same — Relevancy.
    It was proper in such case to interrogate the defendant with reference to the understanding that he had, as to compensation, with a third party, for whom he had conducted certain litigation over the proceeds of a policy; it being claimed by him that such suit was regarded as a test case, and that he acted therein for both the third party,and the plaintiff in the suit at issue.
    3. Trial — Witnesses—Leading Questions.
    A question asked of a witness for the purpose of refreshing his recollection, even though leading, may, in the sound discretion of the trial judge, be allowed.
    4. Money Had and Received — Defenses—Burden of Proof.
    A defendant in an action for money had and received, who admits the receipt of the money, must establish his affirmative defense by a preponderance of evidence.
    Error to Eaton; Smith, J. ,
    Submitted June 17, 1896.
    Decided July 8, 1896.

      Assumpsit by John M. Dillon against Benjamin W. Pinch for money had and received. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was the owner of an insurance policy in the Old People’s Mutual Benefit Society Of Elkhart, Ind., upon the life of one Abigail Smith. A Mrs. Alvira Smith had another policy upon the same life. The validity of that policy, and the principle governing such insurance, may be found determined in Smith v. Pinch, 80 Mich. 332. The amount of the plaintiff’s policy was $1,000; and of the claim of Alvira Smith, $1,590. The defendant received both amounts. The object of this suit is to recover the amount of the insurance received by the defendant. The declaration was upon the common counts. A bill of particulars was demanded, and was furnished, for the amount above stated. The defendant pleaded the general issue, with notice of set-off, of which a bill of particulars was demanded and furnished. One item of set-off is as follows: “Amount paid defendant by plaintiff for making collection of $1,060, being expenses in circuit and supreme courts, as per agreement, $530.” There were certain other items, over which no controversy arose, and which were allowed. The sole dispute arose over the above item of set-off. The jury rendered a verdict for plaintiff for $669.56, being the amount after deducting the other items of set-off, with interest.
    The defendant admitted the receipt of this money, and that it belonged to the plaintiff, less any legitimate subject of set-off which he had. He claims an agreement with the plaintiff by which he was to receive, as compensation, half of the amount collected. This was denied by the plaintiff, who gave testimony tending to show that the defendant informed him that he was going to Elkhart to collect the claim for Alvira Smith, and would get plaintiff’s money, and bring it to him, free of charge; that he did get the money; that after suit was commenced by the heirs of Abigail Smith against Pinch and others, and also against plaintiff, to recover these moneys, defendant told plaintiff that he had several policies in the same company in the same situation as the plaintiff’s, and that, if he would let the case go on, he would defend them for his own benefit, and make no charge against the plaintiff. This was the issue involved, and the statement above made is sufficient to an understanding of the questions raised.

      Garry C. Fox, for appellant.

      Poioers & Stine, for appellee.
   Grant, J.

{after stating the facts). The defendant was asked:

“ Mr. Pinch, with the knowledge that you have now of what you went through with those cases, and the risks that you ran winning them, — taking all these things into consideration, to say nothing about any special agreement — what was it well worth for_ the services that you rendered there?”

The question was excluded. The ruling was correct. The defendant had made no such issue. He relied upon a special agreement, and the jury, in- response to a special question, found that no such agreement was made. Each party relied upon an express agreement. No issue of an implied agreement was made by the pleadings. McDonald v. Ortman, 98 Mich. 40.

Plaintiff’s counsel was permitted to interrogate the defendant as to his agreement with Alvira Smith. The claim of the defendant appears to have been that he was acting in the Alvira Smith suit for the benefit of both parties, and that her suit was made the test case. We think the question was pertinent, therefore, as to what arrangement he made with her.

The attorney for the heirs of Mrs. Smith in the suits instituted by them against Pinch and others to recover the insurance money was introduced as a witness for the defendant, and testified to the value of the defendant’s services in those suits. After the conclusion of the cross-examination the plaintiff made him his own witness, and interrogated him, without objection, as to certain negotiations for a settlement between plaintiff and the heirs of Mrs. Smith. He testified that they made a settlement with plaintiff for $250, and that plaintiff gave an order on defendant for that amount, which defendant refused to pay.- Shortly before the trial, Mr. Stine, one of plaintiff’s attorneys, had had a conversation with Mr. Hatch. In order to refresh his recollection, Mr. Hatch was asked if he did not say to Mr. Stine, in that conversation, that defendant said to Dillon that he had not intended to charge him much, if anything, for getting the money, but now he would make it cost him as much as he could. The question was answered, under the objection that it was leading and incompetent. The witness replied that he thought something of that kind was said, but he could not remember the exact words. The testimony was not offered or received or used for the purpose of impeachment, but solely for the purpose of refreshing his recollection. We think the question rested in the sound discretion of the circuit judge, and that no error was committed in allowing it.

The plaintiff established his prima facie case, by showing the money in the hands of the defendant. Its receipt by the defendant was conceded. The court was correct in instructing the jury that the burden of proof then rested upon the defendant to establish his defense by a preponderance of evidence.

The judgment is affirmed.

The other Justices concurred.


text:
    STANGE v. GOSSE.
    Agency — Sale oe Real Estate — Failure oe Title — Commissions.
    A real-estate agent, having secured a purchaser for lands upon which he had acquired an option, is not precluded from recovering his commission from the owner by the fact that the contract of sale subsequently entered into between the purchaser and the owner required the latter to furnish an abstract showing a good and perfect title, which provision was not expressly included in the option, and that the sale failed by reason of the inability of the owner to show such title.
    Error to Wayne; Hosmer, J.
    Submitted June 17, 1896.
    Decided July 8, 1896.

      Assumpsit by Edward Stange against Anthony Ggsse for commissions on the sale of real estate, and for money advanced on the purchase price. Prom a judgment in his favor for less than the amount claimed, plaintiff brings error.
    Reversed.
    On March 4, 1893, the defendant and his wife executed and delivered to Charles Cohn an option for the sale of a farm of 80 acres, for the sum of $24,000, the option to expire May 11, 1893. The terms of the sale were to be $500 down, balance to be paid after the papers were examined. Cohn was to receive 2 per cent, from the amount for his services. IJpon the margin was written:
    “$12,000. Balance with 6 percent., on or before five years.”
    March 10, 1893, Cohn assigned and transferred to plaintiff all his right, title, and interest in and to the said contract and option. .Immediately after the execution of this option, Cohn negotiated with plaintiff for, the purchase of the property; and on March 8th a land contract was entered into between defendant and his wife and the plaintiff, by which the defendant agreed to sell the land to him for $24,000, — $500 to be paid on the delivery of the contract, $7,500 “ within 60 days from date, or as soon as a Burton abstract is furnished showing' a good and perfect title in said grantors, and the balance of $16,000. within five years from date.” This contract was drawn by William Look, an attorney, who appears to have acted for both parties in so doing. When the abstract was furnished, it did not show a perfect title in the defendant. The original title stood in Francis Gosse, who obtained it from the United States in 1833. Francis Gosse was dead, but his estate had not been probated, and there was therefore no record determination of heirship. He left a widow and several children, one named Anthony Gosse, the father of defendant. Anthony, Gosse died intestate, in 1866, leaving a widow, who was appointed administratrix. A bond and inventory were filed, but no further proceedings were had, and it does not appear of record who were his heirs. Five hundred dollars was paid upon the execution of the contract. The defendant did not have a good and perfect title of record, and could not, therefore, enforce the contract against the plaintiff without furnishing such a title. This was not done, and subsequently the plaintiff instituted this suit to recover the $500 paid, and the commission. The court directed a verdict for the plaintiff for the amount paid, but held that he was not entitled to the commission.

      Thomas S. Jerome, for appellant.

      Wilkinson & Post, for appellee.
   Grant, J.

(after stating the facts). The objection made by the defendant to the recovery for the commission is that neither a complete sale nor an enforceable contract was made, and that the contract was made nonenforceable by the insertion of the clause as to an abstract showing a perfect title, and in this respect differed from the sale which. Cohn was authorized by his option to effect. The theory of the plaintiff is that, in every land,contract where the contrary intent is not expressed, an agreement is implied to give a good title, clear of all defects and incumbrances ; that he had fully complied with his option in securing a purchaser; that the failure to comply with the contract of sale was the fault of the defendant; and that he had earned his commission when he had brought a purchaser and the contract was executed.

The abstract produced did not show a good, marketable title in the defendant. Titles to land usually appear of record. Parties rely upon the record or upon abstracts thereof in making purchases. In every land contract the vendor impliedly agrees to convey a good, marketable title. This should appear by titles of record or title deeds unrecorded, or by due proof of heirship where title is thus obtained. A vendee does not agree to buy lawsuits, nor to rely upon adverse possession in the vendor. The abstract showed an undivided one-seventh interest in this land outstanding, and the parol testimony showed that the title to this was in John Gosse, the son of Francis Gosse. The record in this case does not conclusively show that John Gosse was dead, or that he never married. Defendant first testified that he did not know whether his uncle John was ever married, and that he had heard that he was dead. He afterwards testified that he was not married. Plaintiff was not required to accept a deed from the defendant under such defect in the title. Whether the defendant would, in any event, be required to show a good title by the record in the office of the register of deeds, we need not determine. It was reasonable that he should contract to do so. Parties do not usually buy without proof of such record title. Defendant has made no case which would be a defense even if the contract did not provide that the abstract should show a perfect title. He dealt with Mr. Cohn upon the assumption that he had a good title. ' The failure was not the fault of Mr. Cohn or of plaintiff. We therefore think that the defendant was not in position to defend against his contract for commission by this provision of the contract to sell. Under the record as it now stands, the plaintiff was entitled to judgment for the commission, as well as for the part of the purchase price paid.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    COUNTY OF CHEBOYGAN v. ERRATT.
    1. Trial — Official Bond — Instructions.
    In an action on a county treasurer’s bond given upon his re-election to office, it was contended by the defense that a part of the shortage was created during the prior term of office, and that there was no evidence tending to show that the treasurer, at the expiration of his first term, had on hand the amount of" money with which he was chargeable. While it appeared from the testimony of the deputy treasurer that, at the beginning of the second term, there was on hand in the usual depositories only^ §238 of the §2,500 with which the treasurer was then chargeable, it further appeared from the office books that, during the first two months of the second term, the disbursements exceeded the receipts by over §3,000. The court left to the jury the question whether any part of the defalcation occurred during the first term, and instructed them that, if it did, there could be no recovery on account of such prior defalcation. Held, that the charge was sufficiently favorable to the defendants.
    2. County Treasurer’s Bond — Borrowed Money — Authority of Board of Supervisors — Liability of Sureties.
    Sureties on the official bond of a county treasurer, conditioned for the payment over of all moneys coming into his hands as treasurer, are liable for the defalcation of moneys borrowed for the county by authority of the board of supervisors, even though the board exceeded its power in authorizing the loan.

      3. Same — Money Borrowed Without Authority.
    Whether the sureties would be liable for money borrowed without the concurrence of the board of supervisors, — qucere.
    Error to Cheboygan; Adams, J.
    Submitted June 12, 1896.
    Decided July 8, 1896.

      Assumpsit by the county of Cheboygan against William Erratt and others on a county treasurer’s bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Frost & Sprague (Watts S. Humphrey, of counsel); for- appellants.

      George W. Bell, for appellee.
   Montgomery, J.

This is an action on the official bond of the defendant William Erratt, given on his re-election to the - office of county treasurer, and approved and filed oii the 4th day of January, 1893. A verdict was rendered by a jury in favor of the county in the sum of $11,014.66. Judgment was entered on this verdict, and defendants bring error.

It is contended that the verdict is based upon the books kept in the treasurer’s office, and that, in order to find the balance in favor of the county which the jury ■did, it was necessary to find that the treasurer had on hand at the beginning of his second term $2,585.75. The declaration avers that he entered upon his second term on the 4th day of January, 1893, and the books show the balance of $3,873.68 on hand January 1st, but do not show the amount on hand January 4th, when the second term commenced. The circuit judge left it to the jury to find whether there had been a defalcation prior to January 4, 1893, and instructed the jury that, if there had been, there could be no recovery on account of said defalcation. Defendants’ counsel contend that there was no evidence tending to show that this money was on hand January 4th. The testimony of the deputy county treasurer does tend to show that there was on hand, in the usual depositories, January 1, 1893, only about $238.19, but he was, of course, unable to state how much, the treasurer himself may have had; and what is much more decisive is that, according to the books of the treasurer’s office, there was received during January and February, 1893, $4,468.08, and disbursed during the same period $7,772.90. So that, if there had been a defalcation during the first term, this tends to show that it was made good before March 1st, and that money of the county to the amount claimed-by the plaintiff was afterwards embezzled. In view of this testimony, the charge of the court, leaving to the jury the question whether any portion of this defalcation occurred through a misappropriation of money during the treasurer’s first term, was sufficiently favorable to defendants.

During the second term of the treasurer, temporary loans were made under a resolution of the board of supervisors authorizing the chairman, clerk, and treasurer to borrow such sums as were needed from time to time. The amount of these loans aggregated, during the second term, $14,500. It is contended that these loans were illegal, and that the sureties on the bond entered into no obligation to be responsible for money coming into William Erratt’s hands contrary to law. The condition of the bond is:

“ The condition of the above obligation is such that, if the said above-bounden William Erratt, and his deputy, and all persons employed in his office, shall faithfully and properly execute their respective duties and trusts, and that such treasurer shall pay according to law all moneys which shall come to his hands as treasurer, and will render a just and true account thereof whenever required by the board of supervisors or by any provisions of law, and that he will deliver over to his successor in office, or to any other person authorized by law to receive the ■same, all moneys, books, papers, and other things appertaming or belonging to said office, then the above obligation to be void; otherwise, to be and remain in full force.”

Can it be said that, because the board of supervisors exceeded its power in authorizing the borrowing of this money, the money did not come into the hands of defendant Erratt as treasurer?' We think not. In Berrien County Treasurer v. Bunbury, 45 Mich. 79, the action was on the official bond of Bunbury as treasurer of the city of Niles. It was contended that the tax rolls of the Second and Third wards were invalid for want of a warrant, and that, as to the money collected on such rolls, the sureties were not liable. The court said:

‘1 The suit is not founded on any default in making collection. Neither is it an action against delinquent taxpayers. Its object is to recover from the officer and his -sureties, for the benefit of the State and county, the very money which he, as treasurer, actually received for them, and wholly fails and refuses to account for and pay over. The money went into his hands. He received it in payment of taxes and as money belonging to the public. Whose money is it? * * * It was not his when it was paid and received, and has not become his since. It belongs to the State and county. * * * Whether it went into Bunbury’s keeping by the right hand or the left, on papers regular or irregular, with or without a warrant, makes no difference. Its ownership in equity and his legal responsibility were the same.”

. In the present case, as in Bunbury’s, the owners of the money were ready to part with it to the county on the security given. Whatever the nature of the obligation incurred by the county, the money became the money of the county, and was received by the treasurer as such, and received into the treasury of the county. It came into his hands as treasurer. As was said by Mr. Justice Cooley in Marquette Co. v. Ward, 50 Mich. 177, speaking of a bond of like condition:

“In its terms it could not well be more general. Moneys received officially from any source whatsoever are apparently within them.”

A case in all substantial respects precisely like the present was Boehmer v. County of Schuylkill, 46 Pa. St. 452, which was an action on a county treasurer’s bond conditioned to render a just account of all moneys which might come into his hands on behalf of the county. During the term of office of the county treasurer, the county commissioners had made loans aggregating $53,-078, and it was contended that these loans were unauthorized. It was also contended there, as it is in the present case, that it was not contemplated that money which was received on an unauthorized loan would come into the hands of the treasurer, and that the sureties were not bound. This contention did not prevail. The court said—

“No matter whether-they [the commissioners] have or have not legal authority to borrow money by issuing scrip or any other form of security, if they do it, and bring the money into the county treasury, the treasurer is bound to keep it, and disburse it according to law, and, if he fails in this duty, his sureties are liable on the official bond.”

See, also, Wylie v. Gallagher, 46 Pa. St. 205; 2 Brandt, Sur. § 522; 24 Am. & Eng. Enc. Law, 893; Mechem, Pub. Off. § 295; Wilson v. Town of Monticello, 85 Ind. 10.

We think it altogether clear that, when it is shown that, moneys have actually come into the hands of the treasurer as treasurer, neither he nor his bondsmen can avoid liability by showing either that irregularities exist in the proceedings by which such moneys were collected, or thap there was no authority to enter into the agreement which resulted in the receipt of the money by the county. It is enough to impose upon the treasurer an active duty that the county has received the money, and thé obligation on the bond exists when the money finds its way into his hands as treasurer. Had the treasurer, on his own motion, and without the concurrence of the supervisors, attempted to borrow money, as in Leigh v. Tay lor, 7 Barn. & C. 491, a different question would be presented, upon which we express no opinion.

We find no error in the proceedings, and the judgment will be affirmed.

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

      It was admitted that an item of $1,287.93 had been erroneously charged to the treasurer upon his boots.


text:
    JOHN T. NOYE MANUFACTURING CO. v. THREAD FLOURING-MILLS CO.
    Mechanic's Lien — Time for Filing Claim-Textension— Effect of Settlement.
    A mill built by complainant, upon trial, proved unsatisfactory to the owners, and a memorandum was furnished of the alterations required to perfect the work. A settlement was then had; wherein a deduction was made from the contract price for the payment of a millwright, who was to be engaged by the owners to place additional machinery and make specified alterations. At the same time complainant gave a paper reciting the receipt of certain notes in full settlement for all claims accruing through the furnishing of machinery and labor for the mill, and agreeing, in consideration of such settlement, to furnish a stand of 9x24 rolls in exchange for the stand of 9x18 rolls originally furnished. Thereafter the order was changed to 9x80 rolls, the owners to pay the difference in price, and the rolls were supplied accordingly. Held, that the furnishing of the last rolls, and the work done by the millwright in setting them up, were pursuant to a new contract, and the time for filing a claim of lien under the original contract was not thereby extended.
    Appeal from Genesee; Wisner, J.
    Submitted June 12, 1896.
    Decided July 8, 1896.
    Bill by the John T. Noye Manufacturing Company against the Thread Elouring-Mills Company and others to enforce a mechanic’s lien. • From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Birney Hoyt, for complainant.

      Edward 8. Lee, for defendants.
   Hooker, J.

The complainant built a flouring mill, upon a contract with the Thread Flouring-Mills Company of Flint. In November they started it for trial, and it did not prove satisfactory to the owners, and the complainant agreed to furnish a pair of 9x24 rolls to take the place of those previously furnished, and to get a local millwright, a Mr. Bishop, to fix some of the machinery, and to make right an inadequate belt and some loose cogs, all' of which Mr. Bishop was to do. On January 2, 1894, the parties met again, when, as stated by the complainant’s agent,’ a definite agreement was reached. He testified that there was a clause in the contract under which the owners were to be made satisfied, and on this occasion he was furnished with the data of alterations required to make the mill satisfactory; that the witness made an allowance in the settlement for a sum to pay for the work of Mr. Bishop, who was to be engaged by the owners to place additional’machinery and make specified alterations. At the same time witness executed the following paper:

“Flint, Mich., January 2, 1893.
“Received of the Thread Flouring-Mills Co. twenty-eight hundred ($2,800) dollars, in three notes, payable in two (2), four (4), and six (6) months, in full settlement for all claims accruing through the furnishing of machinery and labor for their mill, elevator, and engine. In consideration of the above settlement we agree to furnish one stand of 9x24 double rolls in exchange for the stand of 9x18 rolls now in the mill.
“The John T. Noye Maneg. Co.,
per Wi. H. Snyder.”

Upon this occasion the notes above described were executed and delivered to the complainant’s representative.

On January 8, 1894, the mill owners sent the following letter to complainant:

“Flint, Mich., January 8, 1894.
“John T. Noye Manufacturing Company,
.“Buffalo, N. Y.
‘£ Gents: Instead of sending the stand of 9x24 rolls, we wish you would send a stand of 9x30, to be used for our first brake. We will, of course, pay the difference in cash. We will then have the 9x24, now first brake, recut for the fifth brake or bran rolls, and will return or buy the 9x18. We are very anxious to have the rolls here when Mr. Dewitt gets here. Will you not make a great effort to get them off quick?
“Truly yours,
“Thread Flouring-Mills Company,
“C. M. Harris.”

This was accepted, and rolls furnished accordingly, the same arriving in February. Subsequently the mill was destroyed by fire, and complainant now asserts a lien upon some of the machinery for a balance due on the contract to build and furnish the machinery for the mill.

If the furnishing of the last roll, and the work of setting it, done by Mr. Bishop, can be said to have been performed under the original contract, the proceedings are in time. If not, they are too late. We are of the opinion that they were not thus performed, but that the parties settled on January 2d, and made a new contract, by which the complainant was relieved of further service under the original contract, in consideration of a deduction made from the contract price, and an agreement to furnish new rolls, which last was again changed by an arrangement to substitute still larger rolls. Our view of the case accords with that of the learned circuit judge who tried the cause, and his decree dismissing the bill is therefore affirmed, with costs.

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

       Conceded to be 1894.


author: Moore, ' J.

text:
    BARGH v. L. R. ERMELING & CO.
    Justices oe the Peace — Attachment—Substituted Service. Substituted service of an attachment under 3 How. Stat. § 6841, is insufficient to confer jurisdiction upon the justice, where the officer’s return fails to show that he retained the writ in his hands, and made diligent search for the defendant, during all of the time within which personal service might lawfully have been made. So held where the return to a writ issued on June 25th, returnable July 2d, and served upon garnishee defendants on the teste day, showed that the officer "had the writ in his possession” on June 27th, that he “carried it around with him” for several days after receiving it, and that he “could not have served the writ on the defendant between June 25th and 27th, or on either of said days.”

    Error to Gogebic; Haire, J.
    Submitted June 10, 1896.
    Decided July 8, 1896.
    Attachment proceedings by Joseph S. Bargh against L. R. Ermeling & Company, a foreign corporation. Plaintiff had judgment in justice’s court, and a special appeal was taken to the circuit, where the justice’s judgment was set aside. Plaintiff brings error.
    Affirmed.

      John D. Barry (Julius J. Pateh, of counsel), for appellant.

      Foster & Bushnell, for appellee.

       See Tunningly v. Butcher, 106 Mich. 35, holding that service of the writ, whether personal or substituted, must be made at least six days before the return day.

   Moore, ' J.

This is an action in attachment, brought in justice’s court, June 25, 1895, at which time garnishee proceedings were also commenced. Personal service was not had upon the defendant. On the same day the proceeding was commenced, the constable seized certain property, and garnished several persons, with whom he left certified copies of the attachment. No other service of process was made. The defendant appeared specially, and moved .to quash the writ for several reasons, the only one necessary] to discuss here being because no actual service of process was made personally upon the defendant, and because no legal substituted service was had upon it. The magistrate refused to dismiss the writ, and allowed the constable to amend his return so as to show:

“That he had the writ in his possession on the 27th day of June; that he carried the writ around with him for several days after he received it, and that he received it on June 25th; that he could not have served the writ on defendant between June 25th and 27th, or on either of said days; that the writ was returned to the court after June 27th, and on July 2d.”

The justice then proceeded to the trial of the cause, and rendered judgment for plaintiff. The defendant took a special appeal to the circuit court, which appeal was sustained, and the judgment in the justice’s' court was set aside. The case is brought here by writ of error.

The only question necessary to discuss is, was the service of process such as to give the court jurisdiction? The plaintiff insists it was sufficient, and cites 3 How. Stat. § 6811. It is conceded that, if defendant could have been found, personal service might have been had upon it up to and including June 26th. The officer, without waiting to see if he could obtain service upon it, made such service as has been made in the case on June 25th. It has been repeatedly held by this court that—

‘ ‘ If the officer fails to show by his return that he retained the writ in his hands, and made diligent search for the defendant, during the time within which personal service might by law have been made, his return of substituted service is insufficient to confer jurisdiction upon the justice to proceed further with the case.” Brown v. Williams, 39 Mich. 755, and cases cited therein.

The return of the officer fails to comply with these requirements.

The judgment of the court below is affirmed.

The other Justices concurred.


text:
    WOLF v. HOLTON.
    1. Appeal — Instructions—Failure to Except-ad. alleged error in a statement of fact made by the trial court in his instructions to the jury will not be considered on appeal, where the attention of the court was not called thereto upon the trial.
    3. Same — Questions not'Raised Below.
    Questions which were not raised in the lower court will not be considered on appeal.
    Error to Gratiot; Daboll, J.
    Submitted June 18, 1896.
    Decided July 8, 1896.
    Ejectment by Martin Wolf against Thomas Holton. Prom a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Searl & IZirby and C. W. Gicldings, for appellant.

      George P. Stone and John T. Matheivs, for appellee.
   Grant, J.

This case has twice before been in this court. 92 Mich. 136; 104 Mich. 107. It was reversed the second time on account of a defect in the proof of the identity of some of the grantors as heirs of Leonard Partello. It is now insist ed, as before, that no such identification as the law requires is made by the proof. We think otherwise. The heirs of Mr. Partello were clearly identified by the parol proof as the grantors in the deeds. It is unimportant to set out the testimony. '

The only other point necessary to mention is the claim of the defendant that the plaintiff has not made out a title to a five-sixths interest in the land, but only to three-fifths, or at most three-fourths. In instructing the jury the court stated as a fact that the plaintiff had established a title to the land described in his declaration, viz., a five-sixths interest therein. This statement of fact was not challenged by counsel for the defendant. This court has repeatedly held that where the trial judge, in his instructions, makes a statement of fact, it is the duty of the party against whose interest it is made to call the attention of the court to it; otherwise, it cannot be raised in the appellate court. We see no reason why that rule should not apply in this case.

This trial, as well as the others, seems to have been based upon the theory that the plaintiff was the owner of a five-sixths interest. This question was not raised upon the trial, nor even referred to, unless it be in the following statement: One Mrs. Dibble, who had ■ married one of the sons of Welcome J. Partello, had testified in regard to the heirs. The defendant was recalled by his counsel, and asked whether, after he got into possession, Mrs. Dibble did not claim to him that she had some interest in the land. This was objected to as immaterial, when defendant’s counsel said:

“The testimony shows that Mrs. Dibble, before she deeded to Wolf, had acquired a one-sixth interest in the land by reason of the death of one of her children. She also had a dower interest in it. I don’t know when that statute went into effect, but there was a time when that heir’s estate would go back to the mother. Lois Partello was one of the heirs, who died at 16. Her father was dead, and there was a mother and brothers and sisters. The question is, where would her share go.to?”

The court said:

‘ ‘ I think it is somewhat remote. I will not rule it out now. I don’t see how it could change the character of his possession any. ”

No reference was afterwards made to it during the trial. We think, therefore, that the defendant is not now in .a position to raise the question.

Judgment affirmed.

The other Justices concurred.


text:
    PEOPLE v. BROWN.
    1. Criminal Law — Forgery—Variance—Amendment op Information.
    Where an information charged the uttering of a forged check payable to G. W. B., and the check introduced upon the trial was payable to G. M. B., held, that it was proper, under 3 How. Stat. § 9537, to permit an amendment of the information-to conform to the proof.
    3. Same — Trial—Secondary Evidence.
    A conviction will not be reversed because the prosecuting attorney, in making proof of the service upon the respondent of notice to produce a certain paper in his possession which the people desired to introduce in evidence, was permitted to read such notice in the presence of the jury.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted June 19, 1896.
    Decided July 8, 1896.
    Clyde M. Brown was convicted of uttering forged paper.
    Affirmed.
    The respondent was convicted of uttering a forged check, and in the complaint made before the justice of the peace the check was described as follows':

      “No. 16. Benton Harbor, Mich., Oct. 28, 1895.
    “Farmers’ and Merchants’ Bank. $12.50
    “Pay to George W. Baker or order twelve and fifty — dollars.
    “Solon Cutler.”
    In the information filed in the circuit court the order stated the name to be “G. W. Baker.” When it was produced upon the trial it read “ G. M. Baker.” Counsel for the defendant objected to its introduction on the ground that there was a fatal variance between the check as described in the information and the one introduced in evidence. The court permitted the information to be amended by making the name “G. M. Baker.”

      James O'Hara, for appellant.

      N. A. Hamilton, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). The court committed no error. The amendment was justified by section 953?, 2 How. Stat. We can conceive of no more appropriate application of this statute than to the case before us. It is impossible that the respondent should have been prejudiced by the amendment. The statute expressly provides for an amendment “in the name or description of any person or body * * * alleged to have been injured by the commission of the offense, or the Christian or surname of any person, * * * and in all cases whenever the variance between the facts alleged in the indictment and those proved by the evidence are not material to the merits of the case.” People v. Hamilton, 76 Mich. 215; People v. Price, 74 Mich. 37.

The people, desiring to introduce in evidence a paper which was in the possession of the defendant, gave written notice to him and to his counsel to produce the paper upon the trial, or parol evidence would be given of its contents. Hpon the trial the people proved the service of this notice, and read it to the court in the presence of the jury. It is assigned as error that the counsel was permitted to read this notice in the presence and hearing of the jury. We do not think this of enough importance to justify a discussion or a reversal of the case. The people were bound to give notice to produce the,paper, and to produce proof of service of the notice, in order to give parol evidence of its contents.

The conviction is affirmed, and the court below directed to proceed to sentence.

The other Justices concurred.


text:
    MATTHEWS v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Adverse Possession — Hostility oe Occupancy — Railroad Right oe Way — Extinguishment.
    An easement for a railroad right of way is extinguished as to land which is inclosed by the owner of the fee with his remaining premises, and used by him for ordinary farming purposes, continuously, and without the assent of the railroad company, for more than 15 years, notwithstanding he had the right to the use of such land to the extent that it was not required for the purposes of the road.
    Error to Monroe; Kinne, J.
    Submitted June 19, 1896.
    Decided July 8, 1896.
    Trespass quare clausum fregit by Daniel A. Matthews against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      C. E. Weaver and I. R. Grosvenor (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Landon & LocMvood, for appellee.
   Montgomery, J.

. In July, 1871, the predecessor of the defendant company obtained a right of way for a railway, 100 feet in width, being 50 feet on each side of the surveyed line, extending through the land upon which the village of Carleton is now situated. In October, 1872, Charles A. Kent conveyed to the railway company and its successors the right to enter upon ,and conduct, maintain, and operate its railroad and appurtenances in and upon a strip 50 feet in width, lying south of the. first-named 100-foot strip. Subsequently, and on the 7th of April, 1875, Kent conveyed 40 acres of land to the plaintiff, which included the lands the right of way over which was last deeded to the railroad company. This deed was a quitclaim, and was recorded April 10, 1875. During the summer of 1874 the railroad company built a fence on the south side of the first 100-foot strip, past the land in question. In November, 1876, the plaintiff inclosed all the land south of the fence with the remaining portion of his 40, and has since continued to use the land for crops, grass, and pasturage, until the time of the alleged trespass. The defendant, in 1894, extended the fence so as to include the 50 feet south of the first right of way, being parcel of the 40 acres deeded to the plaintiff. The plaintiff thereupon brought this action of trespass. On the trial it appeared that the plaintiff had occupied the lands, as above stated, for more than 15 years, without any assent by the railway company. The circuit judge instructed the jury that the plaintiff had acquired title by adverse possession. The defendant brings error, and contends that the occupancy of the plaintiff was not such as to ripen into a title, for the reason that the plaintiff had the right to occupy the land, and use it for any purpose, as long as its use was not deemed necessary by the railroad company.

The precise question involved was recently determined by the supreme court of Illinois in the case of Illinois Central R. Co. v. O'Connor, 154 Ill. 550. The court say in that case:

“For more than 30 years it [the railroad company] abandoned all use of the land, fenced it out of its right of way, and allowed it to remain in the exclusive possession and use of the owner of the fee. When it desired to use it, it attempted to exclude the owner of the servient estate from the same. It is not denied that, if the controversy between these parties had been as to the ownership of the fee-simple title to the premises, plaintiff’s possession would have been a complete bar; and we are at a loss to perceive how, under the facts of the case, it is less so as against the claim to a mere easement.”

We think this decision is in harmony with the previous rulings of this court, in which it has been determined that the owner of abutting land may acquire title good as against the public, by an occupancy for the statutory period. See Gregory v. Knight, 50 Mich. 61; Coleman v. Railroad Co., 64 Mich. 160; City of Big Rapids v. Comstock, 65 Mich. 78.

We recognize the doctrine contended for by defendant’s counsel to the extent that, if the use of the owner of the servient estate be consistent with its use for an existing easement, the owner of the servient estate cannot acquire title by such possession; and it is not to be denied that there are cases which fully sustain the contention of defendant’s counsel. These cases originated with the case of Union Pacific R. Co. v. Kindred, 43 Kan. 134, where, upon facts very similar to those in this case, it was held that title was not acquired by the owner of abutting property who fenced in a portion of the right of way with his own land, and used it for the statutory period. This case was followed by the supreme court of Tennessee in East Tennessee, etc., R. Co. v. Telford's Ex'rs, 89 Tenn. 293, and a similar holding was made in Slocumb v. Railway Co., 57 Iowa, 675. It is to be noted that, in the case of Union Pacific B. Co. v. Kindred, the court relies for authority sustaining its position, in part, upon McClelland v. Miller, 28 Ohio St. 488, which was a highway case, and inconsistent with the cases, cited above from our own reports.

We think the use of this strip of land by the plaintiff must be held to have been wholly inconsistent with the -right of the railway company. Certainly the defendant could not at any time have occupied the land for its purposes while it was thus inclosed by the plaintiff. This being the case, we think the occupancy of the plaintiff amounted to an assertion of ownership inconsistent with the defendant’s claim, and was such an occupancy as has ripened into title by adverse possession.

The judgment is affirmed.

The other Justices concurred.


text:
    FORT WAYNE & BELLE ISLE RAILWAY CO. v. WAYNE CIRCUIT JUDGE.
    New Trial — Inadequacy oe Yerdiot — Discretionary Powers.
    The trial court has discretionary power in a personal injury case to set aside the verdict rendered, and order a new trial, of its own motion, if it deems the award insufficient.
    - Mandamus by the Fort Wayne & Belle Isle Railway Company to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order granting a new trial.
    Submitted April 21, 1896.
    Denied July 21, 1896.

      Conely & Taylor, for relator.

      Fred A. Baker, for respondent.
   Montgomery, J.

One Emma L. Long brought an action against the relator for personal injury, and, on a trial before a jury, recovered a verdict of $800. The respondent, deeming this award insufficient, set aside the verdict, and ordered a new trial. The relator asks for a writ of mandamus directing that this order be set aside.

The counsel for relator concede that the court might, for an error of its own commission on the trial, order a new trial on its own motion, but contend that the court has no such control over verdicts of juries, and can only vacate such verdicts on application of one of the parties. We think the practice in this State has been otherwise, from its earliest history, and, although the exercise of this power has been very rare, there have been instances of it. That these instances must, of necessity, be infrequent, naturally results from the recognized impropriety of a trial judge interposing his own judgment, as against that of a jury, except in a clear case. But in such case the court possesses the power, at common law, to grant a new trial on its own motion; and in our opinion the power is not limited to cases where the error is that of the court, or where there is misconduct of the jury, as contended by relator’s counsel, and as appears to have been held by the supreme court of Texas in Lloyd v. Brinck, 35 Tex. 1. As sustaining the broader power, as a common-law power, see 2 Thomp. Trials, § 2711, and cases cited, — particularly, State v. Adams, 84 Mo. 313.

Having determined that Judge Donovan had the power to set aside this verdict, it follows that his discretion must control his action, except in a case of clear abuse of such discretion, which we do not find in this case.

The writ will be denied.

Hooker and Moore, JJ., concurred. Long, C. J., did not sit. Grant, J., took no part.


author: Moore, J.

text:
    ACKENHAUSEN v. PEOPLE’S SAVINGS BANK.

    Banks and Banking — Savings Deposit — Payment to Wrong Party — Liability to Depositor — By-Laws.
    The action of the directors of a savings bank, organized under the general banking law, in providing by by-law that the bank shall not be liable to a depositor for a payment to a third party who presents the former’s pass-book, although the latter acquired possession of the book by stealing, cannot relieve the bank from the liability imposed upon it by the general statute (3 How. Stat. § 3208e5) to repay all deposits to “the depositor or his lawful representative,” unless the attention of the depositor is called to such by-law, and he actually or impliedly assents thereto.

    Error to Wayne; Carpenter, J.
    Submitted April 24, 1896.
    Decided July 21, 1896.

      Assumpsit by Ernst Ackenhausen against the People’s Savings Bank to recover the amount-of a savings deposit. Erom a judgment for defendant, plaintiff brings error.
    Reversed.

      William L. January (Charles C. Stewart, of counsel), for appellant.

      Keena & Lightner, for appellee.

       Rehearing denied October 6, 1896.

       On the effect of corporate by-laws as notice there is a note collating the authorities with Moyer v. East Shore Terminal Co., (S. C.) 25 L. R. A. 48.

   Moore, J.

The plaintiff came from Germany to Detroit in December, 1893. On the steamer he made the acquaintance of one Lange, and they came on to Detroit together, and plaintiff roomed and boarded with Lange and his family. Both Lange and plaintiff spoke the English language a little. Plaintiff had a thousand dollars in money that he desired to put where it would be safe, and was advised to deposit it in the defendant bank, which he did, Lange going with him when he made the deposit. The bank has a large deposit account and a large number of depositors. Plaintiff had never deposited money before. At the request of the clerk to whom he paid the money, he wrote his name in a book, so the bank could have his signature. The bank gave to the plaintiff a deposit book, containing printed by-laws, reading as follows:

_ “3. _On making the first deposit, the depositor shall sign his or her name in the signature book of the institution, which contains a copy of these rules and regulations, and to which the depositor will assent before his or her deposit can be received by this institution.”
“7. Money deposited in this institution will be entered in a book which will be given to each depositor. This small book will be the depositor’s voucher, or evidence of his or her deposit in the institution. When money is withdrawn, this book given to the depositor shall be brought in .to the bank, to have the payments entered therein. Depositors can draw money themselves, or, in case of absence or sickness, it will be paid to their order, properly witnessed, and accompanied by the book.”
“10. While the officers of this institution will do their utmost to prevent fraud, yet, as they will be unable to identify every depositor, this institution will not be responsible for loss sustained when a book has been mislaid, stolen, or lost, if, before the cashier is notified thereof, such book be paid in whole or in part on being presented.
“11. If a book be mislaid, stolen, or lost, the owner is required to give immediate notice of the fact to the cashier of this institution.”

There is nothing to indicate that plaintiff’s attention was called especially to these by-laws, or that he even read them. The plaintiff left his deposit book in his room at Lange’s house, and went to Cleveland. While in Cleveland, plaintiff got $500 from Lange. Seven days after the deposit was made, the deposit book was presented at the bank, and the, entire $1,000 was withdrawn. It was admitted in court that this was done by Lange, and that he forged the plaintiff’s signature. The trial court instructed the jury that—

“The $500 paid by Lange to Ackenhausen must be treated as a payment. Lange took his money to the amount of a thousand dollars. Lange had advanced him $500. To hold any other way than that would permit the plaintiff in this suit to get $1,500 and to take $500 of this thousand dollars to Lange, and pay back to him. To avoid circuity of action, I make one lawsuit take the place of three lawsuits, and I charge you, as a matter of law, that that five hundred dollar] paymént should be allowed under any circumstances. Now, for the purpose of this case, the only question for you to consider is this: Did Lange, in getting this money, act under an authority from the plaintiff? If you find that Ackenhausen gave Lange authority to draw the deposit from the bank, and the bank paid it to Lange upon presentation of the book, the plaintiff is not entitled to recover. It is not necessary that such authority to draw the money should be in writing. A verbal authority, accompanied by delivery of the book to Lange, would be sufficient to authorize Lange to sign Ackenhausen’s name to the order, surrendering the book, and receiving the money. But I charge you that, if he did not have authority, then you are to render a verdict for the plaintiff. So that is the only question in the case: Did Lange have authority or didn’t he? If he did, your verdict should be for the defendant; if he did not, your verdict should be for the plaintiff. But for the purpose of this case I charge you that one who impersonates a depositor without his knowledge, and signs such depositor’s name on the check or receipt, is not such depositor’s representative, even though he may at such time present to the bank such depositor’s bank book. If the money which was deposited by plaintiff in this case was paid out by the bank to one Lange, without authority of the plaintiff, then the defendant is liable in this action. If you come to the conclusion that this was paid without authority, then you will render a verdict for the plaintiff. The amount of that verdict will be $500, with interest from the time of this demand, which would be from the 24th of February, 1894, at 6 per cent.
“Now, there are two special questions which I will submit to you: (1) Was the money deposited by plaintiff in defendant bank drawn by his authority ? That is the question which is to control your general verdict, as I have already indicated. You will answer that ‘Yes’ or ‘No,’ according as you believe the truth to be. (2) Was the money deposited by plaintiff in defendant bank negligently paid out by defendant’s teller? That I instruct you to answer ‘No.’ This is a formal matter to get this question and the answer on record, so that you will answer that as I have instructed you.”

The jury rendered a verdict in favor of plaintiff for $535, and answered special question 1 “No,” and special question 2 “No,” as instructed by the court. The court entered judgment for defendant non obstante veredicto, and the plaintiff appeals.

A good many assignments of error have been taken, but those necessary'to be considered relate to the effect of the by-laws upon the parties. It is claimed by the defendant' that the deposit of the money, the issuing of the deposit book with its copy of the by-laws, and its acceptance by the plaintiff, and his signature, were all parts of one transaction, which resulted in a contract by which the bank was relieved from any further liability under the circumstances of this case. The counsel for the bank call the attention of the court to the following sections of the statute: Section 26 of the banking law (Pub. Acts 1887, page 233) provides that savings banks shall have power to receive deposits, and says:

“ All deposits in said banks shall be repaid to the depositors, or his or her lawful representatives, when required, at such time or times, and with such interest and under such regulations, as the board of directors of the bank from time to time prescribes, which regulations shall be printed, and conspicuously exposed in some place accessible and visible to all in the business office of said bank.”

Section 28 provides:

“ A pass-book shall be issued to each depositor in the savings department, containing the rules and regulations adopted by the board of directors governing such deposits, in which book shall be entered each deposit made by, and each payment made to, such depositor; and no payment or check against any such savings account shall be made unless accompanied by and entered in the pass-book issued therefor, except for good cause, and on assurances satisfactory to the officers of the bank.”

It is insisted that the bank complied with these provisions of the statute, and that plaintiff, because of his contract with the bank, has no cause of action against it; citing Schoenwald v. Bank, 57 N. Y. 418; Appleby v. Bank, 62 N. Y. 12; Sullivan v. Institution, 56 Me. 507; Goldrick v. Bank, 123 Mass. 320. The cases just cited undoubtedly hold that under the laws of the States where the decisions were rendered, and the by-laws in force in those banks, thére was no liability; and, if the savings banks which were parties to the litigation involved in those cases were created under like laws, arid possessed with the. same powers as savings banks possess in this State, the decisions would be conclusive. Until recently the primary idea of a savings bank has been that it is an institution in the hands of disinterested persons, the profits of which, after deducting the necessary expenses of conducting the business, inure wholly to the benefit of the depositors, in dividends, or in a reserved surplus for their greater security. They were without capital, and managed by trustees. The banks themselves derived no benefit whatever from any deposits or the produce thereof. Huntington v. Bank, 96 U. S. 395. An examination of the statutes of Maine, Massachusetts, and New York at the time the decisions cited by the counsel were rendered will disclose the fact that the savings banks mentioned therein were created and managed for the benefit of the depositors. They were managed by trustees, and, after deducting the expenses of the management of the business, the depositors were entitled to the profits; s© that every depositor was directly interested in having the losses as small as possible. It will also appear that there was no statute requiring the deposits, with interest, to be paid to the depositor or his legal representative. In this State, savings banks like the defendant bank are organized under the general banking law. They are required to have a capital stock and stockholders. The depositors have no share in the profits of the business beyond the interest paid on their deposits; the profits of the business all belong to the stockholders. The conditions surrounding the two systems of banking are so unlike that the decisions under one system are not likely to be controlling when litigation arises under the other system. It may well be argued that, if the depositors are to share in the profits of the business when it is profitable, they shall accept its losses without complaining, and not seek to hold the bank liable. On the other hand, if the bank is to take the profits of the business, where is the justice of asking the depositor to take the risks ?

In 2 Morse, Banks (3d Ed.), § 617, it is stated of a savings bank:

“The depositors are the bank. The trustees and officers are their agents for receiving and loaning their money, and the profits belong to the depositors.”

In the following section it is stated:

“ Although a bank may be called a savings bank, if it is really a stockholders’ bank, where the capital is owned by the shareholders, the name will amount to nothing; and in such a bank a deposit creates the relation of debtor and creditor.” Ward v. Johnson, 95 Ill. 241.

It would logically follow that if the depositors are the bank, and the trustees and officers are the agents of the depositors, any regulation or by-law adopted by the agent would bind the principal, — that is, the depositors,— and they would be bound by it. On the other hand, if the relation between the bank and the depositor is that of debtor and creditor, the general rule would apply that the by-laws of a corporation are binding upon none but its members and officers. Ang. & A. Oorp. § 359.

In this State the officers of the bank are the agents of the bank, and not the agents of the depositors. A by-law passed by them is a by-law of the bank, and not of the depositor, and if the effect of it is to change the relation of the creditor to the debtor so as to relieve the obligation of the debtor to the creditor, must not the creditor have his attention called to the by-law in such a way that he shall understand its effect before he shall be bound by it? In Davis v. Bank, 53 Mich. 166, Justice Campbell said:

“The contract of a depositor with his banker does not differ in any material way from any other contract whereby one person becomes bound to take charge of and repay another’s funds. As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, * *
* the contracting party can lawfully control his own funds until he has disposed of them. * * * The bank book is no contract, and is only one of the means of indicating the state of the funds. * * * The money belonging to one person cannot cease to belong to him until he does some act to dispose of it.” See Burtnett v. Bank, 38 Mich. 634.

It was held in Smith v. Bank, 101 N. Y. 60, where a savings bank sought to justify the payment by it of a depositor’s money to a stranger upon the ground that such payments were made to a person having possession of the depositor’s pass-book, that — ■

‘ ‘ Such pass-book is not negotiable paper, and its possession constitutes in itself no evidence of a right to draw money thereon. It merely imports a liability of the bank to the depositor for the moneys deposited, and an agreement to repay them at such time and in such manner as he shall direct. This contract is implied from the nature 'and objects of the transaction occurring between the parties. The depositor may, by special contract, authorize payments to be made in some other manner than by his directions; but, in order to make such payments a protection to the bank, it is necessary for it to show some special agreement with the customer, authorizing such a mode of payment.”

Then follows an interesting discussion of the effect of by-laws, which it is not necessary to repeat here, as we have indicated that the status of savings banks in the State of New York is quite different from the status of the savings banks of this State.

'We think the requirement of the statute that the deposits shall be paid to the depositor or his legal representatives cannot be changed by a by-láw, unless the attention' of the depositor is called to the by-law, and he assents thereto, actually or impliedly. We think it was error in the learned trial judge to render a judgment for the defendant, and that he should have rendered a judgment in favor of the plaintiff upon the verdict of the jury, and for the amount thereof.

The judgment is reversed, and case remanded, with directions to enter judgment upon the verdict.

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


text:
    BLEAU v. WRIGHT.
    Life Insurance — Advance Payment op Premium — Liability op Agent.
    A solicitor of life insurance who gives an agent’s receipt for the first premium upon a proposed policy, which recites that, if the risk is not accepted, the sum collected shall be returned, incurs no personal liability to the applicant as to the amount advanced, where the latter deals with him merely as agent for a disclosed principal, although the policy issued is not such as the contract calls for.
    Error to Houghton; Hubbell, J.
    Submitted April 28, 1896.
    Decided July 21, 1896.

      Assumpsit by Vital Bleau against Edward L. Wright and another to recover the amount of a premium advanced on a proposed policy of life insurance. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      W. A. Bateman (W. F. Biggs, of counsel), for appellant.

      O. A. Wright, for appellees.
   Moore, J.

The defendants are insurance agents for fire, life, and accident insurance companies. They are soliciting agents for the Northwestern Mutual Life Insurance Company of Milwaukee. Their Calumet office was in* charge of E. S. Skinner, who had the same authority to solicit insurance that the defendants had, and who was authorized to sign receipts for premiums, the same as they were. The plaintiff, who did not speak English very well, wanted to get some life insurance, and for that purpose visited the Calumet office, with an interpreter selected by himself, and applied to Mr. Skinner for a life-insurance policy. They had some talk about what kind of a policy was wanted. As to what ivas said, the witnesses are not agreed. This talk resulted in the plaintiff’s making a written application for insurance, in the presence of the interpreter, signed by the plaintiff. The premium was not paid that day; but a few days later it was paid, and a receipt given, reading:

“Agent’s receipt for advance payment of premium.
“The Northwestern Mutual Lire Insurance Co.
‘ In consideration of the application-for a two thousand dollar policy, payable at death or in ten years, made by Vital Bleau to the Northwestern Mutual (Life Insurance Company, there has been collected of him one hundred twenty-eight dollars, four cents, being the first annual cash premium on said policy. If the risk is accepted, the policy will be issued, and will be in force from this date. If the risk is not accepted, the sum collected will be returned within 30 days.
“Calumet, Mich., Aug. 31, 1891.
“Wright & Stringer, Agents,
“per Ed. S. S.”

This receipt was interpreted to the plaintiff by his interpreter. A little later, and in the usual course of business, the insurance company issued a policy on the application, and according to its terms, which policy was forwarded to Mr. Skinner, who presented it to the plaintiff. The plaintiff, claiming that the policy was not such a one as he had orally agreed for, refused to receive it, demanding a return of the money paid as premium; payment of which was refused. He then sued defendants, declaring on the common counts in assumpsit, and also for the breach of a contract'made with the defendants “acting as solicitors for the Northwestern Mutual Life Insurance Company.” After the testimony was all in, Judge Hubbell charged the jury that, under the law, the action should have been brought against the principal, instead of the agents, and directed a verdict in favor of the defendants.

The plaintiff assigns a number of errors, but it will only be necessary to coiisider those relating to the action of the court in directing a verdict. The evidence is undisputed that the plaintiff knew he was dealing with agents, and dealt with them in that capacity, and upon the theory that their principal was the insurance company. Neither can there be any doubt from the record that the act of these agents was authorized by the company, and that, had the company failed to issue a policy upon the application, it would have been liable for the return of the premium paid; nor that, after the risk was accepted, the company would have been liable to pay the amount due on the policy had the plaintiff died. The rule is well settled, “if the agent makes a full disclosure of the fact of his agency and of the name of his principal, and* contracts only as the agent of the named principal, he incurs no personal responsibility.” Mechem, Ag. § 555; 1 Pars. Cont. (8th Ed.) p.66; Bonynge v. Field. 81 N. Y. 159; Whitney v. Wyman, 101 U. S. 392.

The judgment is affirmed.

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


author: Long, C. J.

text:
    LUTTERMOSER v. ZEUNER.
    L Estates of Decedents — Married Women — Mortgages. The title to a wife’s interest in a mortgage executed to herself and husband jointly passes, at her death, to her executor, for the benefit of her creditors and heirs at law.
    2. Same — Executors and Administrators — Res Judicata.
    A decree that the surviving husband is entitled to the entire proceeds of a mortgage payable to the husband and wife, in a proceeding in chancery to which the latter’s executor was not made a party, is not conclusive against his right to recover from the husband the half of the proceeds belonging to the wife.
    Error to Wayne; Carpenter, J.
    Submitted June 3, 1896.
    Decided July 21, 1896.

      Assumpsit by Otto L. Luttermoser, executor of the last will and testament of Johanna Rebecca Zeuner, deceased, against Carl Frederick- Zeuner; surviving husband of decedent, to recover the latter’s share of the proceeds of a mortgage executed to defendant and decedent jointly. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Henry N. Brevoort, for appellant.

      Richard I. Lawson and James H. Pound (Dennis B. Hayes, of counsel), for appellee.
   Long, C. J.

The plaintiff is the executor of the last will of Johanna Rebecca Zeuner, deceased. This action is brought by him as such executor to recover from the defendant one-half of certain moneys which defendant received from the Fairview Land Company upon a certain mortgage which was made by said company to defendant and his wife, Mrs. Zeuner. The lands upon which the mortgage was given were sold by defendant. The record is not clear as to whether the title was in defendant alone or in him and his wife, but the mortgage was given to them in their joint names. During the life of Mrs. Zeuner, certain moneys were paid upon the mortgage, and divided equally between her and the defendant. Mrs. Zeuner left surviving her several children. The mortgage was given for the consideration of $15,470, and there came into the hands of the defendant, after the death of his wife, for principal and interest on the mortgage, about $1,500. On the trial, plaintiff had verdict and judgment by direction of the court for one-half that sum. -

Mrs. Zeuner left a last will and testament appointing plaintiff as executor. By the will she made certain bequests to several of her children and grandchildren, as follows: To her son Frederick August Schuman, $2,000; to her daughter, Emilie Rosalie Enoch, $2,000; to her son John Frederick Zeuner, $5; to her granddaughter Amelia Haggerty, $2,000; to her granddaughter Elizabeth Enoch, $1,000. All the residue of her property she bequeathed to her son Frederick August Schuman, her daughter, Emilie Rosalie Enoch, and her granddaughter Amelia Haggerty, share and share alike.

After Mrs. Zeuner’s death, the Fairview Land Company refused to pay anything further upon the mortgage, when defendant here filed a bill in the circuit court in chancery of Wayne county for the purpose of-having the mortgage foreclosed, and also to have the court decree to whom the moneys mentioned in the mortgage belonged. It was ■ claimed in the bill that the defendant was the sole owner of the mortgage. The Fairview Land Company was made a defendant to that bill, as well as Frederick August Schuman, John Frederick Zeuner, and Emilie Rosalie Enoch. After the prayer for the foreclosure, the bill prays: “That the court adjudge and determine whether, if any, what right, title, or interest 'Frederick August Sahúman, John Frederick Zeuner, and E. Rosalie Enoch, and each and every of them, have in and to money owing on said bond and mortgage.” The land company filed an answer to the bill, averring its readiness to pay the money upon the mortgage to whomsoever the court should declare to be entitled to the same. The other defendants in the bill did not answer, and the bill was taken as confessed as to them. On the hearing of that case the court determined that the mortgage was the sole property of Carl Frederick Zeuner, and directed that the company pay to him the principal and interest thereof. The court further decreed that Carl Frederick Zeuner was entitled to the moneys thereon as the same should accrue and become due under the terms of the mortgage, free from all claims by the defendants named in said bill, and adjudged that Frederick August Schuman, John Frederick Zeuner, and Emilie Rosalie Enoch had no interest or title to the moneys arising from said mortgage. This decree was entered on the 27th of July, 1894. The present suit was brought after the moneys had come into the hands of the defendant.

The contention of the defendant is that the decree in the chancery proceeding fixed the rights of the parties, and is res adjudicata of the question here involved. The executor of the estate of Johanna Rebecca Zeuner was not made a party to the chancery proceeding, but defendant contends that at her death the title to the mortgage passed to him as survivor. Counsel is in error in this contention. During the life of Mrs. Zeuner, one-half of the mortgage was her sole property. It is claimed that the mortgage as drawn expressly declared a title in the husband and wife in joint tenancy; that each held an undivided one-half interest therein. At the death of Mrs. Zeuner, the title to her one-half was vested in the executor of her estate for the benefit of any creditors and her heirs at law. Wait v. Bovee, 35 Mich. 425; In re Albrecht, 136 N. Y. 91. This being so, and the executor not having been made a party defendant in the chancery suit, the court below was not in error in directing verdict and judgment in favor of the plaintiff.

The judgment must be affirmed.

The other Justices concurred..