text:
    PEOPLE v. DOWDALL.
    1. Perjury — Proof—Positiveness.
    On a prosecution for perjury, the jury were warranted in finding that the respondent gave in police court the testimony on which the complaint was predicated, where a stenographer, called as a witness, swore that a certain transcript read in evidence, purporting to set forth such testimony, was made by him from notes taken at the police-court trial, and that he “believed” it to be correct.
    2. Same — Materiality of Statements.
    Where, on a trial for rape, a witness had testified that the prosecutrix had contracted a venereal disease from respondent, it was material to show that the witness knew she had such disease before the alleged rape; and hence the witness, if testifying falsely upon this point, was guilty of perjury.

      3. Criminal Law — Appeal—Conduct of Prosecuting Attorney.
    The fact that the prosecuting attorney in his argument in a criminal case used language in some particulars open to criticism will not necessitate a reversal of conviction, where any different verdict, under the evidence, would have amounted to a miscarriage of justice.
    Error to recorder’s court of Detroit; Chapin, J-.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    Edward Dowdall was convicted of perjury, and sentenced to imprisonment for seven years in the State prison at Jackson.
    Affirmed.

      Frank C. Moriarty and George X. M. Collier, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of perjury alleged to have been committed upon an examination of one Williams before a police justice of Detroit upon a charge of rape. The information alleged that he testified on that occasion that “he did not know whether or not one Maggie Cooper, prior to February 19, 1899, had gonorrhea, and he had not prior to that date prescribed for her, for that or any other venereal disease; that he, about 11 o’clock on the night of February 19, 1899, heard cries from Maggie Cooper’s room; that on going to the room he found her sitting upon a lounge or sofa, crying; and that she then told him that Dr. H. B. Williams had insulted her.” The testimony tended to show that Williams was examined upon a charge of rape before the police justice named. One Linton testified that on that occasion he took the stenographic notes of the testimony, and that they were correctly transcribed, to the best of his knowledge and belief. He was then asked:

“Q. I will ask you to look at Exhibit D. You may state whether or not Exhibit D is a correct transcript of the testimony of Edward Dowdall, taken at the examination in the police court on the 2d of June.

“A. Yes, sir; I took that testimony and transcribed it, and I believe it is a true transcript of his evidence. I recognize the defendant as the man. (Exhibit D offered in evidence as a transcript of the testimony, without objection.)”

This transcript was then read to the jury without objection. It seems to have been the only testimony offered in support of the allegation that defendant testified before the police justice as charged. It is claimed that this was insufficient to prove that he so testified, and the court should have directed a verdict of not guilty, because (1) it was not shown to contain all of his testimony; (2) it was not shown that the testimony was taken correctly, or that it was correctly transcribed. It is said that not only is it not shown to be all the testimony given by the defendant, but the witness was not positive that the testimony was correctly reported and transcribed, and it did not justify the jury in finding such to be the fact, because the proof of perjury must be positive. We find no reason for saying that proof that a defendant gave the testimony alleged to be false needs to be more positive than proof of any other act. It is sufficient if it be proved to the satisfaction of the jury, and beyond reasonable doubt.

Counsel for the defendant maintain that the truth of the statement that defendant heard cries from Maggie Cooper’s room on the night in question was established, and the judge seems to have eliminated it from the case by his charge.

It is contended that there is no testimony except that of Williams upon which to predicate the falsity of the statement that Maggie Cooper told him that Williams had insulted her. Mrs. Thornsbury corroborated him. Counsel ask us to say that her testimony is valueless, because it does not appear that she was present all of the time. We are of the opinion that, if the jury might not find from her testimony in the case that she was present all of the time that the defendant was there that night, they might reasonably say that she was there at the time defendant represented that statement to have been made.

Again, it' is said that it was not shown that Maggie Cooper had gonorrhea previous to February 19th, and therefore the jury should not have been permitted to find whether she had or not, and it is insisted that the testimony was not material in either instance. The theory of the prosecution was that Maggie Cooper was the defendant’s paramour, and that he was offended at the presence of Williams in her room; that, in order to sustain the complaint against Williams, he claimed that she contracted the disease from Williams. It was therefore material to show that he knew to the contrary, by showing upon his cross-examination that he knéw that she had it before, and had treated her for it. It was also material in the rape case to show the statements of Maggie Cooper, immediately after the alleged transaction, that Williams had insulted her; and it was none the less material, though perhaps less damaging, that she was proven to have said that he insulted her, instead of that he had intercourse with her against her will. The admission of the defendant that Maggie Cooper had the disease, and the fact that he prescribed medicines commonly given in such cases, and his cohabitation with her at the time when he himself had the disease, if such proof was made, all tended to establish the fact that she had it, and that he knew it. The fact that Williams himself testified that he never had such disease made this testimony no less material. In this, connection, we may say that defendant’s fourth request was properly refused.

An examination of the testimony convinces us that there was abundant opportunity for the jury to find defendant guilty, and, had they not done so, we should consider it a miscarriage of justice. This being true, we think the judgment should not be reversed on account of the language of the prosecuting officer, which is subject to criticism in some particulars. The charge was a fair one, and placed the salient points before the jury in a way that should have insured, and doubtless did insure, proper consideration.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    NORRIS v. HALL.
    1. Appeal — Findings of Fact — Conclusiveness.
    The court’s findings of fact in a case tried without a jury-are conclusive on appeal, where the evidence is not returned.
    2. Tax Sales — Deeds—Evidence.
    Act No. 7, Pub. Acts 1882, providing for a clearance sale of State tax lands, did not declare that the deeds issued thereunder should be prima facie evidence of title, and hence such deeds are inadmissible in evidence in the absence of proof of the regularity of the tax proceedings.
    3. Same — Prospective Statute.
    A tax deed based upon a sale under the tax law of 1885 (Act No. 153), for taxes assessed prior to the passage of that act, is void, since the act was not retroactive.
    4. Same — Validity op Decree — Dollar Mark.
    A tax deed issued under the law of 1889 (Act No. 195) is void where the tax record contains no words or dollar mark to indicate the amount decreed against the lands.
    5. Evidence — Ancient Documents — Recitals.
    Recitals of the death, of a party, in conveyances and court records of 50 years’ standing, are evidence of the fact, even as against strangers.
    6. Ejectment — Title—Burden of Proof — Power of Attorney.
    Plaintiff in ejectment, claiming under a deed by an attorney-in-fact authorized to convey the premises in suit “excepting such parcels as may have been heretofore conveyed,” makes a prima facie case by the introduction of deeds covering the entire premises; the burden of proving any former conveyances by plaintiff’s grantor resting upon the defense.

      7. Joint Tenancy — Survivorship—Trusts.
    The right of survivorship incident to an estate of joint tenancy is not defeated by the fact that, by agreement entered into contemporaneously with the execution of the deed creating such estate, the grantees were declared to hold the lands as trustees for a joint stock association, charged with the duty of selling the same and distributing the proceeds, and were authorized to appoint a successor in case of the death of one of their number; and hence a conveyance executed by the survivors of them will pass title to the lands.
    8. Trusts and Trustees — Power to Convey Lands — Regularity oe Execution.
    The regularity of the execution by trustees of a power to sell and convey lands cannot be ■ questioned by one claiming adversely to the cestui que trust.

    Error to Berrien; Coolidge, J.
    Submitted April 5, 1900.
    Decided May 15, 1900.
    Ejectment by Mark Norris against Charles W. Hall and others. From a judgment for plaintiff, defendant Hall brings error.
    Affirmed.
    This is an action of ejectment, was tried before the court without a jury, a finding of facts and law made, and judgment entered for the plaintiff. Plaintiff claimed title from the government. Defendants claimed title by certain tax deeds and adverse possession thereunder; that, if plaintiff held any title, he held it in trust for defendant Hall, and that he had obtained it while acting as his agent. The other defendants are tenants of Hall. By mesne conveyances from the government the title became vested, April 9, 1836, in one Henry H. Casey. Casey platted this and other lands as the town of North St. Joseph on May 26, 1836. On March 24, 1838, Casey conveyed to Dunbar S. Dyson by government subdivision. March 26, 1838, Dyson conveyed to five persons, named Russell, Oakley, Allsop, Jr., Casey, and Sterne, as joint tenants. These five parties executed an agreement the same date as the last conveyance, reciting that Casey was trustee; that the object of the conveyance to Dyson and of Dyson to the five joint tenants was to vest the title in said joint tenants in fee simple absolute, in joint tenancy, as trustees; which agreement recited that they held said land in trust, according to certain articles of association set forth in said agreement; that the interests of all parties were to be confined to the net proceeds of the sale and disposition of the land. The articles of association were signed by the various stockholders, and recited the amount of stock held and owned by each. Such interests were to be personalty, and to pass to the personal representatives, and not to the heirs, of any of the cestuis que trustent who should die, and no heir at law of any of the parties should at any time claim any estate, title, or interest, legal or equitable, in the land. The capital stock was $300,000. The trustees were to manage the capital, property, affairs, and concerns of the association; to donate any of the trust lands, if, in their judgment, the affairs of the association would be benefited thereby; to carry out contracts previously made by Mr. Casey; to improve and lease the lands until sold, and to sell lands at times, in such manner and upon such terms as they saw fit; to elect officers, make investments, appoint such agents as might be necessary or useful, and to appoint one or more of the trustees agents to sign and execute conveyances. They were to sell the entire land within five years, if practicable. If found to be impracticable, then, within the following three years, they were “to take such measures as may be necessary to effect that object,” and at the expiration of the eight years divide all moneys, property, and estate of the association ratably among the several stockholders. They were to commence and carry on all proper and necessary suits; .to defend all suits; to make all lawful contracts and to do all lawful acts that might be necessary and proper to carry into effect the object of the association. It was also provided that “the conveyances of the tracts of land, or any part thereof, executed by the trustees in person, or in the manner hereinafter stated, shall pass to the purchaser or purchasers thereof the whole legal estate thereof, with guaranties of interests as shall be thereby intended so to be granted.” Article 17 reads:
    “Upon the happening of any vacancy in the board of trustees, the remaining trustees shall supply such vacancy from among the stockholders having the requisite number of shares; and, upon the appointment of any new trustee, the other trustees shall convey an interest in the property of the association by such instrument in writing as counsel shall advise, so as to make him a joint tenant thereof equal with themselves.”
    The trustees were further authorized to make by-laws, rules, and regulations for the management of the property.
    In three documents, executed, respectively, May 9, March 25, and February 10, 1846, the death of trustee Sterne was recited. These documents also recited that, by the death of Sterne, the entire title to the lands in question passed to the survivors by right of their' joint tenancy. On February 10, 1846, the four surviving trustees executed a power of attorney, reciting the death of Sterne, to Cyrus 'W. Dana, to sell and convey the land. The eight years had nearly expired, and a sale had become mandatory under the trust. On March 25, 1846, the trustees, by Mr. Dana, their attorney, and in pursuance of the agreement, conveyed the land in question to Charles R. Allsop. After the death of Sterne, — but the precise date does not appear, — the survivors caused a portion of the plat of North St. Joseph, including the premises in question, to be vacated. Mr. Allsop died intestate March 5, 1865. In 1892 his widow and heirs conveyed to the plaintiff.
    Defendants introduced a tax deed for the taxes of 1869 to 1880, inclusive; also a tax deed of 1882, one for 1883, one for 1887, and one for 1888; and gave evidence of adverse possession. Plaintiff gave evidence controverting the claim of adverse possession. Upon the tax deeds the court found as follows :
    “I find that for the delinquent taxes of the years 1869 to 1880, inclusive, public sale was made May 4, 1884, under the law of 1882. The deeds executed by the auditor general upon the sale made May 4, 1884, are introduced in evidence by defendants. I find as matter of law that all sales made on May 4, 1884, under the law of 1882, are invalid; that the tax deeds for the years extending from 1869 to 1880, inclusive, were made pursuant to a sale on May 4, 1884, under the law of 1882, and, consequently, that they are invalid.
    “I find that the tax deeds of 1882 and 1883 introduced by defendants were void, because the sales were made under the law of 1885, and that the act of 1885 was not retroactive.
    “I find that the tax deeds of 1888 and 1887 introduced by defendants were void, because the tax decree shows no dollar mark in connection with the description of the lands and the taxes assessed and to be collected thereon.”

      Samuel II. Kelley and Edward Bacon, for appellant.

      Laiorence C. Fyfe (Mark Norris,- oí counsel), for appellee.
   Grant, J.

(after stating the facts). It is urged that the court erred in holding that the evidence to maintain adverse possession must be disregarded because the notice was insufficient under the new rule of the court. The court found that there was no adverse possession of 10 years’ duration by Hall under any claim; that he did not acquire title under the tax deed of 1888 until October 17, 1893, and less than five years before the commencement of suit. Under these findings it becomes unnecessary to determine the question of the sufficiency of the notice attached to the plea. The testimony as to adverse possession is not returned. The finding of the court, therefore, is conclusive.

The tax deed for the years 1869 to 1880 was inadmissible in evidence, and is ineffectual, for the reason that there was no proof of the regularity of the tax proceedings. The law under which the sale took place did not provide that deeds issued thereunder should be prima facie evidence of title. Farmers & Mechanics’ Bank v. Bronson, 14 Mich. 361, 373.

The tax deeds for 1882 and 1883 were void, under Hall v. Perry, 72 Mich. 205 (40 N. W. 324). Counsel for defendant, in their brief, assert that the court erred in holding that the tax deed for 1882 was void because the sale was made under the law of 1885, and that that law was not retroactive. They state that the deed recites that it was under “Act No. 229 of 1881, as amended by Act No. 7 of 1882.” We have examined the deed (a copy of which is not printed, but which is attached to the original record), and we find no such statement in the deed. The only recital in the deed is that the sale was for the delinquent taxes of 1882, and was made October 6, 1885.

The tax deeds for 1887 and 1888 were void, under Millard v. Truax, 99 Mich. 157 (58 N. W. 70).

The recitals in the three documents executed in 1846 (one of which was the power of attorney to Dana, another the deed from the survivors to Allsop, and the third the order of the court vacating the plat of North St. Joseph) are the sole evidence of the death of Sterne. These are ancient documents. 2 Jones, Ev. § 312. Recitals in ancient deeds are proof of the facts therein recited, even as against strangers. Underh. Ev. §§ 53, 54; Deery v. Cray, 5 Wall. 795; Fulkerson v. Holmes, 117 U. S. 389 (6 Sup. Ct. 780); Jackson v. Cooley, 8 Johns. 128; Bowser v. Cravener, 56 Pa. St. 142; Chamblee v. Tarbox, 27 Tex. 139. The authorities cited by counsel for defendant are not cases of ancient documents.

The power of attorney contains the words, “ excepting therefrom such lots as may have been heretofore conveyed.” Counsel for defendant insist that plaintiff should have shown what lots, if any, were conveyed. The power of attorney does not state that any lots were conveyed. By introducing his deeds covering .the entire land, plaintiff made a prima facie case of ownership. If any land had been sold by his grantors, the onus probandi was upon the defense to show it.

Joint tenancy is not created by operation of law, but by the specific act of the parties. 2 Rice, Mod. Law Real Prop. § 420. The deed from Dyson to the five trustees expressly stated that they were to hold “ as joint tenants, and not as tenants in common.” Under the declaration of trust, executed simultaneously with the deed, and the articles of association, which are given in full in. the instrument, the five trustees hold this land in trust for the association, the proceeds of the sale to be divided among the shareholders in proportion to their holdings. Counsel for defendant contend that, reading the instrument as a whole, it was not intended to confer power to sell upon four trustees in the event of the death of one. It is true that the declaration provides for the appointment of a successor in the event of the death of one of their number. We, however, do not think that this takes away the right of survivorship which exists at the common law. Survivorship is the distinguishing attribute of joint tenancy, and has been generally abrogated by statute, except in the case of joint trustees. 2 Rice, Mod. Law Real Prop., supra; 1 Perry, Trusts, § 343. The intent, therefore, to avoid the rule of survivorship, must clearly appear in the instrument itself. Besides, these defendants are not in position to raise the question. They are not cestuis que trustent, who alone can interfere. As long as they are satisfied with the action of their trustees in selling the property, other parties cannot object. 1 Perry, Trusts, supra.

Judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. JONES.
    1. Criminal Law — Possession or Burglars’ Tools — Information.
    In a prosecution for violating 3 Comp. Laws 1897, § 11589, providing a punishment for having possession of burglars’ tools with intent to use the same for committing burglary, it is not necessary for the people to allege and prove that the respondent intended to use them for such purpose in the county where he is prosecuted.
    3. Same — Evidence.
    In a prosecution for having possession of burglars’ tools, it is proper for the people to show the purpose for which the tools found in respondent’s possession are adapted.
    Error to Houghton; Haire, J., presiding.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    George Jones was convicted of having burglars’ tools in his possession, and sentenced to imprisonment for five years in the State prison at Marquette.
    Affirmed.

      W. A. Burritt, for appellant.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the offense charged in an information reading, in the material part thereof, as follows:

“That George Jones, late of the township of Portage, in the county of Houghton, heretofore, to wit, on the 29th day of May in the year 1899, at the township of Portage, in tho county of Houghton, aforesaid, did feloniously and knowingly have in his possession certain tools and implements, — that is to say, one skeleton key, one clipper, and one key adapted and designed for the forcing and breaking open of buildings, rooms, vaults, and safes, in order feloniously to steal, take, and carry away therefrom such money and other property capable of being stolen as might be found therein; he, the said George Jones, then and there feloniously knowing the such tools and implements to be adapted and designed for the purpose aforesaid, intending to use and employ them for the purpose aforesaid, contrary to the form of the statute,” etc.

A good many errors are assigned. We shall discuss only such of them as we deem important.

It is claimed the information did not charge an offense. It is said the information should charge, and the people should prove, “beyond a reasonable doubt, that the respondent had a fixed intention, at the time said implements were found in his possession, to use or employ said tools or implements for the purpose’ of forcing or breaking open a building, room, vault, safe, or other depository in Houghton county, in order to steal therefrom money or some other valuable thing; for, if his intention was merely a general one to employ said tools or implements some time, or in some other county, he would not be guilty. In other words, the intent must be to use the tools or implements, for some of the purposes mentioned in the statute, in the county where the prosecution is instituted.” The language of this information is substantially the same as that employed in Com. v. Day, 138 Mass. 186, where the conviction was affirmed. The statute under which this information was filed is section 11589, 3 Comp. Laws 1897. It was construed in the case of People v. Edwards, 93 Mich. 636 (53 N. W. 778). The same principle was contended for in that case as the one urged here. The opinion contains a full discussion of the question. It is so recent in date, we do not deem it necessary to do more, than refer to it. It decides this case against the contention of respondent.

Just before his arrest, respondent was engaged in a fight at one of the docks; having a revolver, which he used by striking his antagonist on the head with the butt end of it. When arrested, the officer was unable to find the revolver upon the person of the respondent, but it was afterwards found. On the way to the jail the accused attempted to drop a skeleton key. At the jail there were found upon his person an ordinary key, a lock-pick, and a pair of nippers, such as are used by burglars for turning a key then in the lock, by inserting the nippers in the keyhole from the outside. These nippers, were concealed in respondent’s stocking. Upon the trial the people were allowed to show for what purpose these tools could be used. This is said to be error. Counsel says, “The implements were in court, and the proper course would have been to identify them as the implements found in the respondent’s possession, introduce them in evidence, and submit them to the jury, and let the jury draw their own inference from them.” This proposition does not call for much discussion. Suppose an innocent-looking stick of dynamite had been found upon the- person of the accused; could the position of counsel then be sustained? Jurors are not supposed to be familiar with the tools and methods employed by burglars. It was very proper they should be informed, by persons who had knowledge, for what purpose the implements were used.

The other assignments of error do not call for discussion.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    PEOPLE v. LOCY.
    Intoxicating Liquors — Regulations—Removal of Screens.
    On. the prosecution of a saloon keeper for violation of 2 Comp. Laws 1897, § 5409, providing a penalty for failure to remove, during the time saloons are required to be closed, all curtains, screens, partitions, and other things that obstruct a view of the bar, it was proper to instruct the jury that the ordinary passer-by is entitled to a free and open view, from the street, of the interior of a saloon, without being obliged to stand on tiptoe, or crowd himself against the glass, to obtain it.
    Exceptions before judgment from Mecosta; Palmer, J.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    John Locy was convicted of violating the liquor law
    Affirmed.

      John T. Clark, for appellant.

      A. B. Cogger, Prosecuting Attorney, for the people.
   Montgomery, C. J.

This is a prosecution for an alleged violation of section 5409, 3 Comp. Laws 1897, which provides that, during the time that places where liquors are sold or kept for sale are required to be closed, “all curtains”, screens, partitions, and other things that obstruct the view, from the sidewalk, street, alley, or road in front of or at the side or end of said building, of the bar or place in said room where said liquors are sold or kept for sale, shall be removed.”

The evidence on the part of the prosecution was substantially as follows: That the curtain in the north window was stretched across the entire window, so that a person of ordinary height could not see beyond it, unless he got up to the window, and stood on his tiptoes; that the curtain in the south window was only partially drawn across it; that a mirror stood crosswise of the building, and immediately in front of the doors; that the mirror and partition west of it partially obstructed the view from the street to the bar and to the space in front of it; that the partition which divided the office from the rest of the building was a solid partition; that a person could not see at all from the alley running by the west end of the building into the part of the saloon where the bar was located, and where liquors were sold; that a person could not see in front of the bar at all; that a person could not see the bar at all from the south window; that a person could not see behind the bar at all. The evidence on the part of the defense tended to show that this mirror stood lengthwise of the building, so that a person looking through the glass of the doors of the saloon could look by this mirror and by the north end of the partition immediately west of it, and see the bar or place in said saloon where the business was carried on, and could see clear through the building; that a person might see through the passageway from the office, and in behind the cigar-case and bar. The undisputed testimony showed that the place in question was one where liquor was kept for sale, and that the respondent was, on the day in question (Decoration Day),' the proprietor of the place.

No error is assigned upon the admission of testimony. No requests' to charge were preferred by respondent’s counsel. All the assignments are based upon the voluntary charge of the court. The material portions of the charge of the court were as follows:

“Something has been said about the purpose of this legislation. If is plain and patent. The public have a right to know whether the liquor law is being violated, so far as observation goes, at least, and therefore the legislature of this State enacted this law providing that when, by the law, such places must be closed, the ordinary passers-by can have an opportunity to see what is going on inside, if anything. If screens and obstructions were permitted to remain at the windows and doors or openings, it might be that on those prohibited days saloons might run, and business might be carried on, and the law violated, and the public, without going inside, would not have a fair and free opportunity to determine whether or not the saloon was open for business on such a day. That is the purpose of the law. Now, the construction of this law must not be a strained construction, and it must not be a liberal construction. It must not bear either way. It must be a fair and honest application, as you would construe any other law; that is, you bring to bear your common sense, having heard the law read, and knowing just exactly what its provisions are; and, having heard the charge in this information, it rests with this jury to say, under the evidence in this case, whether these screens were so removed that the ordinary passer-by of this place of business, or one standing in front of it, had as free and fair and open a view of the interior of this place as he would have had if the screens had been removed entirely. You do not have to read between the lines of this statute to get at any hidden meaning. The language of the law is plain, and carries with it its exact meaning; so there are no technicalities and nothing complex surrounding the situation at all. The 30th day of May is a legal holiday. There is no question upon that point, and there is no question upon the point that the respondent is a saloon keeper, and was proprietor of the place in question upon the day in question. It would not be necessary that a person should go out of the usual traveled way to ascertain whether or not this screen law is being violated. He has a right to observe from the sidewalk or the street what is going on, if anything, inside of the saloon. He would not have to go into the doorway, or crowd himself against the glass, or stand upon his tiptoes, as one of the witnesses has said here, for the purpose of ascertaining whether or not any persons were inside of that saloon, or that any business was being carried on there. He would not have to go out of his way for that purpose. He would have a right, as he travels along the thoroughfare, to that same free, open view of the interior of the saloon, so far as these screens are concerned, that he would have, as I said a moment ago, if the screens were entirely removed. The sole purpose of the law is that, at the times when the public must be kept out of these places of business, the light must be let in. That is what the law means, and that is all it means. People have no right to go into these places on the 30th day of May, or on any other holiday, or on Sunday, but the law has given them the right to look in to see whether or not the provisions of the statute are being complied with. * * *

“The sole and only question is, Did these screens, or mirror, or partition obstruct the view of the ordinary passer-by ? If any of them did that, so that there would not be that free, full view of the place where the liquors were sold, this respondent is guilty, regardless of intent; if the screens, partitions, and mirror were so placed as to give a full, free, fair view of the interior of this saloon, the place where liquors were sold, then he is not guilty, and should be acquitted; and the whole question turns on the position of the screens on that day, the 30th day of May. * * * I have tried to define the screen law to you so I think you understand it, and the sole question in the case is, What was the position- of these screens and partition and mirror on that' day? Were they so placed that any or all of them obstructed the view of the interior where the liquors were sold ? If you find, under the instructions given you and the evidence, that they were, the respondent is guilty; if not, he is not guilty.”

We think this charge is not open to the criticism made by the respondent’s counsel. -It might, perhaps, have been urged with some plausibility that portions of the instructions do not point out as clearly as might have been done that the screens or obstructions contemplated are such as obstruct a view of the bar or place in the saloon where liquors are usually sold; but no such point was made, doubtless for the reason that the evidence was directed to showing obstructions to the bar; nor are we prepared to say that, taken as a whole, the jury were misled in this particular.

The conviction is affirmed.

The other Justices concurred.


text:
    PEOPLE v. LYLE.
    Criminal Law — Examination op Witness — Incompetent Statements — Objections—Appeal—Review.
    Where, in reply to a question as to whether witness had arrested certain persons on a given description, he stated it was that and the fact that they were with respondent, whom he knew to be an ex-convict, and that men traveling with him would not be right, such answer was not objectionable as not responsive, and, in the absence of a motion to strike out the answer on the ground that it introduced incompetent matter, an assignment that the court erred in allowing it to stand cannot be reviewed.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    George Lyle was convicted of robbery, and sentenced to imprisonment for 20 years in the State prison at Jackson.
    Affirmed.
    A. B. Hall, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.
   Montgomery, C. J.

The respondent was convicted of the crime of robbery, being armed with a dangerous weapon. On the trial Detective Baker was sworn as a witness for the people. On cross-examination this witness admitted that the only description he had of the three men arrested was what he had from the conductor of the car and what the officers said about the shoe prints they had tracked. Continuing, the witness said that the only particular description he had of the men was the shoes they wore, but they were not noticed until they were on the street, when he noticed their footprints in' the snow.

“Q. You arrested them on the description you had?

“A. That and the fact that they were with Lyle, whom I knew to be an ex-convict, and I knew the men traveling with him would not be right.

" Mr. Hall: I object to that, as not being responsive, and I take exception to that remark of the witness.”

The only assignment of error is that the court erred in allowing the answer above quoted to stand. There was no motion to strike out this answer. Such a motion was necessary to raise the question. Baumier v. Antiau, 79 Mich. 509 (44 N. W. 939). The fault in the answer given was not that ‘it was not responsive, but that it introduced incompetent matter. Not only was there no motion to strike out for this reason, but the attention of the trial court was in no way challenged by such a claim. We do not feel warranted in setting aside the conviction on a point not made in the court below.

Conviction affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    AUDITOR GENERAL v. BOLT.
    Taxation — Accounting Between State and County — Rejected Taxes — Interest and Charges — Mandamus.
    Under the tax law of 1893, as under former laws, the auditor general is authorized to charge the several counties of the State with the amount of the State tax apportioned to them, respectively, against which should be credited the amount of State taxes collected and paid over, and the amount of State taxes returned as delinquent. Hence, where taxes are subsequently rejected by the auditor under section 95 of the act, the amount of the State tax so rejected becomes a charge against the county, payable at the next quarterly settlement, together with the expenses of sale and interest on such taxes and expenses, without waiting for the reassessment and collection of the tax; which payment, if refused, may be compelled by mandamus.

      Mandamus by Roscoe D. Dix, auditor general, to compel George Bolt, treasurer of Muskegon county, to pay over a certain sum of money claimed to be due the State.
    Submitted May 1, 1900.
    Writ granted May 15, 1900.

      Horace M. Oren, Attorney General, for relator.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney (Sessions & Sutherland, of counsel), for respondent.
   Hooker, J.

The auditor general asks a peremptory mandamus to compel the treasurer of Muskegon county to pay over to the State the sum of $3,312.82, claimed to be due the State as shown by the books of relator’s department. The claim grows out of some rejected taxes which have from time to time since 1885 been charged back to the county upon the auditor’s books, and consists of:

Rejected taxes.................................. §750 78 .

Expenses....................................... 2,095 27

Interest on State tax and expenses.............. 493 44

§3,339 49-

Less a credit.................................... 26 67

Balance due State____■.......................§3,312 82

The respondent denies liability for the last two items, and claims that the first is not due. As the charges all have their foundation in the first item, we may conveniently examine that first. Under our tax law, a list of lands upon which taxes are not seasonably paid is returned to the auditor general by each county treasurer, with a statement of the taxes assessed upon such lands. It is called the “delinquent list.” Upon receiving it, the auditor credits the county from which it comes with the aggregate of such taxes, against the State tax, which has already been charged against the county as apportioned. Among the lands returned delinquent there are usually some that should have been omitted from the list; e. g., those upon which the tax has been paid, those which were not subject to assessment, and those to which, through some error, the lien of the State for taxes has not attached. Such lands, when discovered by the auditor general, are stricken from the list and reported back to the county treasurer, whose duty it then becomes to submit the list to the board of supervisors, who are then required to reassess upon the lands such as are proper charges, and upon the property of the township such as are not proper charges upon the lands upon which they were previously assessed. These are called “rejected taxes,” and the aggregate is charged against the proper county in its account by the auditor general. The relator claims that the county must make good this deficiency in the taxes apportioned to it at the next quarterly settlement; the respondent, that it is not obliged by law to do so, and that all the State can require is that the same shall be reassessed, and the money paid over as fast as collected.

The State is entitled to, and does, charge the county with the State tax. As fast as the State tax is collected, it should be paid in; and, when the time to make return of delinquent lists arrives, it is all due to the State, and is payable, upon a settlement of accounts rendered by the auditor general, which the law requires to be made quarterly. The delinquent tax returned is a credit to the county upon such account. We have, then, the county charged with the State tax as apportioned, and credited with its delinquent list, and such cash as it has collected and paid upon the State tax. If there is a balance due the State, as there may be from a failure to collect the full amount of the personal tax, the county must make it good, as we have held in the recent case of City of Muskegon v. County of Muskegon, 123 Mich. 272 (82 N. W. 131). It may happen, as we have seen, that some of the taxes in the delinquent list cannot be collected, for reasons already given. In such case there is a shrinkage in the county’s credit, and a corresponding liability to make it good. See Auditor General v. Supervisors of Monroe Co., 36 Mich. 73. It is charged back to the county as so much previously credited without consideration, and, even before the law óf 1869, was considered a valid charge against the county. The law of 1869 had the effect of making the county a guarantor of the collection of taxes returned delinquent, with certain limitations, and would have made rejected taxes a proper charge, had they not already been. We see no reason why such items are not upon the same footing as deficiencies arising from a failure to collect a personal tax. If, as said by Mr. Justice Moore in the recent case (City of Muskegon v. County of Muskegon, supra), the State has no means of collecting the latter, neither has it the former. The county has failed to produce the revenue apportioned to it, and it must pay the deficiency, and make itself good through reassessment in the manner pointed out by law. This was the law before the counties were made guarantors of the collection of the delinquent taxes by the act of 1869, as we have already said; and the repeal of that feature of the law, or its change, if one has been made, has not relieved counties of liabilities for void assessments or deficiencies or mistakes in the delinquent lists.

It has been the policy for many years to require the counties to carry the uncollected tax until it was paid; the only relief afforded being the purchase by the State of lands not bid upon, which took effect after expiration of redemption. We do not find in the present law any clear indication of an intention to relieve the counties from the burden of carrying the uncollected tax, but, on the contrary, a disposition is shown to relieve the State, by requiring State lands to be bid in for the State, county, and township proportionately, instead of for the State, as was the rule until 1882. See Act No. 206, Pub. Acts 1893, § 70. We think there should be something plainly indicative of a legislative design to change the rule, before we should decide that it is to be departed from. It is urged that such intention should be deduced from an omission of. some provisions existing in the earlier laws, and that we should infer it from the language of other sections, which require the payment of “money collected;” it being argued that only “ money collected ” was provided for. We have already seen that section 87 requires settlement accompanied by payment of amounts collected and'due, as shown by the accounts of the auditor general. If it be conceded that the county is entitled to credit for the delinquent lists until the land is sold, or, if bid in by the State, until after the time for redemption expires, it is manifest that it must then be prepared to adjust deficiencies, tvith interest, as provided in section 87; and, as the lands are always subject to redemption or purchase until the expiration of redemption, each quarterly settlement may contain such items, as the law plainly implies. See Act No. 206, Pub. Acts 1893, § 87; 1 Comp. Laws 1897, § 3910.

The remaining items consist of charges and expenses, and interest thereon, and the question resolves itself into this: Was it intended that the expenses of collecting the taxes due the State should be borne by the State at large, or by the county from which they were due ? As shown by the account, the item for charges and expenses is several times as large as the original tax. The law contemplates that charges and expenses shall be imposed upon the land, where they can be; being always added to the tax before sale. These expenses are due to the mistakes of the county and township, as a rule, and it is just that they should bear them. Section 95 provides that rejected taxes shall be charged back. Nothing is said about charges, but neither is there about interest. We have seen that section 87 contemplates the computation of interest ás one of the bases of adjustment. It is admitted that it has long been the custom of the department to include charges, and interest upon them. While it may be said that these charges ought not to be imposed upon the land in case of rejected taxes, and perhaps could not be lawfully, it is nevertheless true that the futility of the steps for which the charges are made is due to the failure of the local officers to properly perform their duties, and the expense which would otherwise fall upon the land should be a charge upon the county, and not become a part of a subsequent State levy, to be imposed upon the State at large, thereby compelling persons in no way responsible for the loss to bear the greáter part of the burden.

The writ will issue as prayed.

The other Justices concurred.


author: Long, J.

text:
    BLACKBURN v. BLACKBURN’S ESTATE.
    Limitation op Actions — Absence prom State — Husband and Wipe.
    3 Comp. Laws 1897, § 9736, provides that if, after any cause of action shall 'have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action. Held, that the saving clause applies where both the maker and payee of a note, husband and wife, remove for a time from the State, and take up their residence in another State,— especially if the cause of action is not barred by the statutes of the latter State.
    Error to Alpena; Kelley, J.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    Cynthia A. Blackburn presented a claim against the estate of George N. Blackburn, deceased, for the amount of certain promissory notes. The claim was allowed in the probate court, and William A. Blackburn appealed to the circuit court. From a judgment for claimant, contestant brings error.
    Affirmed.

      J. H. Cobb, for appellant.

      Frank Fmerick, for appellee.
   Long, J.

The claimant, Cynthia A. Blackburn, is the widow, and administratrix of the estate, of George N. Blackburn, who died intestate on October 9, 1895. She ■was married to him in the year 1883, at Alpena, where both had resided for some years. At this time she was a 'widow, and Blackburn a widower, with two children, of whom the contestant, William A. Blackburn, is one. On May 7, 1884, Mrs. Blackburn sold and conveyed to her husband an undivided one-half of a house, and lot, of which she was the owner, in the city of Alpena, together with a considerable amount of household furniture, for the sum of $2,300; receiving therefor three promissory notes, bearing the common date of May 7, 1884, with interest at 7 per cent., — the first for $700, payable one year from date, and the second and third each for $800, payable, respectively, two and three years from date. On the trial the execution of these notes by the deceased was duly proved, but, when the same were offered in evidence, the estate objected to their reception because said notes, upon their face, appeared, to be outlawed. There were upon each of these notes indorsements of payment sufficient to save the bar of the statute of limitations, if they had been in the handwriting of deceased, but they were not; and claimant was unable to make any proof in regard to such indorsements or payments, except by her own testimony, which was rejected as incompetent. It was then made to appear that said George N. Blackburn, together with his wife and family, removed from the city of Alpena, with their household effects, and took up their permanent residence in the State of North Carolina, on the 16th day of May, 1888, and that said George N. Blackburn, together with his wife and family, continued to reside in the State of North Carolina, and remained absent from the State of Michigan, from that date until July 3, 1892 (a period of 4 j'ears, 1 month, and 17 days), when said Blackburn, wife and family, returned to and continued to reside in Alpena until his death. Upon this being made to appear, the court held the first of said notes to be outlawed, and the second and third not outlawed, and permitted a recovery upon such last-named notes for the amount conceded to be due thereon, after compelling claimant to deduct the amount of said indorsements and interest therefrom. Contestant, William A. Blackburn, brings error.

It is claimed by counsel for claimant that the second and third of these notes, falling due, respectively, May 10, 1880, and 1887, were saved from being barred by the statute of limitations by the exception created by the latter part of section 9736, 3 Comp. Laws 1897, which provides:

“If, after any cause of action shall have accrued, the person against whom it shall have accrued shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action.”

It is conceded by counsel for contestant that if George N. Blackburn alone had been absent from and resided out of the State, and in the State of North Carolina, the time of such absence could not be taken as a part of the time limited for commencement of action; but it is claimed that where' both parties (the maker and the payee of the note) go out of the State, and take up a residence in the same State, the statute above has no application. The argument in support of this contention is that, if a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim, by failing to present it.

If it were to be admitted that these notes were barred by the statute of limitations of North Carolina, it would constitute no bar to an action in this State. As was said by Kent, C. J., in Ruggles v. Keeler, 3 Johns. 267 (3 Am. Dec. 482):

“A foreign statute of limitations can no more be pleaded to a suit instituted here than it can be replied to a plea under our statute. Statutes of limitations are municipal regulations founded on local policy, which have •no coercive authority abroad, and with which foreign or independent governments have no concern.”

It is, we think, well settled that, though the claimant resided with the deceased in the State of North Carolina for the time stated, yet that fact would not take the case out of the exception created by this section of the statute. Kempe v. Bader, 86 Tenn. 189 (6 S. W. 126); Ruggles v. Keeler, 3 Johns. 263 (3 Am. Dec. 482); Graves v. Weeks, 19 Vt. 178; Hartley v. Crawford, 12 Neb. 471 (11 N. W. 729); Bulger v. Roche, 11 Pick. 36 (22 Am. Dec. 359); 2 Wood, Lim. § 245, and note.

In Kempe v. Bader, supra, the action was upon two promissory notes made in the State of Missouri, both maker and payee being residents of that State at that time and for several years thereafter. At the time suit was brought, the maker of the note (Bader) had become a resident of Tennessee, while the payee, Kempe, still remained a resident of Missouri. The defendant pleaded in bar of the action the statute of Tennessee of six years, but the plaintiff replied the section of the statute of Tennessee similar to our statute under consideration; and it appeared that defendant, after his removal to Tennessee, had been absent from that State from July, 1878, to November, 1879, or a sufficient time, if this exception was applicable to these parties, to save the action. It was insisted that this section was not applicable, inasmuch as both parties were nonresidents at the time the right of action accrued, and that the plaintiff was still a nonresident. The court held that the residence of either or both of the parties when the cause of action accrued or when the action was brought had no effect in limiting the effect of this exception, and that the suit was not barred.

In Graves v. Weeks, 19 Vt. 178, it was held that an action in which both parties were nonresidents would be sustained, although the cause of action was barred at the commencement of the suit by the statute of limitations of the State of which both parties were resident citizens.

But, whatever may be said of the general rule, it is well settled by the decisions of North Carolina that these notes were not barred by the statute of limitations of that State. Under the statutes of that State, both as to personal and real actions, a woman under the disability of coverture is expressly excepted from the operation of all their statutes of limitations. 1 Code 1883, §§ 148, 163. The courts of that State have uniformly held that none of the married woman’s acts has any effect to cause the statute of limitations to run against a woman under the disability of coverture. State, ex rel. Lippard, v. Troutman, 72 N. C. 551; Campbell v. Crater, 95 N. C. 156; Summerlin v. Cowles, 101 N. C. 473 (7 S. E. 881).

The judgment of the court below must be affirmed.

The other Justices concurred.


text:
    PAINE v. BOYNTON.
    1. Tax Sales — Redemption.
    Where, on the day before the expiration of the period of redemption from a tax sale, the owner mailed a draft to the county treasurer, with a letter requesting him to apply it in payment of the sender’s taxes, without describing the lands, and the treasurer received the draft and letter two days later, and afterwards, on receipt of a list of the lands, applied the draft to the payment of subsequent taxes, in which application the owner, after being informed that the redemption period had expired, tacitly acquiesced, no redemption from the sale was effected.
    2. Same — Deed—Non-Existent Grantee.
    A tax deed issued to one who died prior to the making of the application to purchase is void.
    8. Equity Pleading — Quieting Title — Appeal.
    On appeal from a decree for defendant in a suit to quiet title as against a tax deed, complainant cannot complain that defendant did not establish his title, where the bill concedes the validity of such title unless complainant should be found to have redeemed, which contention is found against him.
    Appeal from Muskegon; Bussell, J.
    Submitted April 5, 1900.
    Decided May 15, 1900.
    Bill by Saloma S. Paine against Milo A. Boynton and Herman P. Harbeck to quiet title. Prom a decree for defendants on their cross-bills, complainant appeals.
    Affirmed.

      Walter I. Lillie {Stephen H. Clink, of counsel), for complainant.

      C. W. Sessions, for defendants.
   Moore, J.

The complainant filed a bill to remove a cloud upon her title to certain real estate, the cloud consisting of tax titles owned by defendants. Answers in the nature of cross-bills were filed. Prom a decree dismissing the bill of complaint, complainant appeals.

The record shows the following state of facts:

“Dr. William Paine died in July, 1893, seised of the lands described in the bill of complaint, and other lands in the immediate neighborhood. Complainant, the wife of Paine, then became the owner of these lands by and through his last-will and testament. Part of the lands were delinquent for the taxes of 1891, and were sold to the State at the annual tax sale in December, 1893. All of the lands were delinquent for the taxes of 1892, and became delinquent for the taxes of 1893 and 1894. At the annual tax sale, and on the 3d day of December, 1894, defendant Boynton purchased 80 acres of the land for the taxes of 1891 and 1892. At the same time defendant Harbeck purchased the other lands described in the bill of complaint for tho taxes, of 1892. Complainant alleges in her bill of complaint that she had one year for the redemption of said lands from such purchase, and that, after the expiration of one year, the title to said lands became absolute, and vested in defendants, Boynton and Harbeck, according to their respective purchases. Defendants, in their answers, deny that there was any redemption from the sales for the taxes of 1891, and admit that the title to said lands vested in them after the expiration of the year’s redemption from the sales for the taxes of 1892. Complainant has not attacked, either by her pleadings or proofs, the validity and regularity of the sales and deeds to defendants, except by claiming that she redeemed from such sales, or acquired title by virtue of a subsequent purchase for the taxes of 1893.

“The time of redemption from the sales to defendants for the taxes of 1892 expired on the 3d day of December, 1895. On the 2d day of December, 1895, complainant purchased a draft in Philadelphia, Pa., and mailed the same to the county treasurer of Muskegon county, together with á letter requesting the county treasurer to apply the draft in part payment of the taxes due on the Paine lands in Muskegon county. In the evening of the same day complainant sent a night telegraph message to the county treasurer, notifying him that the draft had been mailed. The telegram was received by the county treasurer on the 3d day of December. The letter and draft did not reach the county treasurer until the 4th day of December, and after the time of redemption had expired. Neither the telegram nor the letter contained any descriptions of land. The county treasurer did not know, and had no means of knowing, either the lands upon which complainant desired to pay or the year’s taxes to be paid. The telegram, letter, and draft were laid aside until the descriptions of land should be ascertained. On the 9th of December, complainant, at Philadelphia, mailed to the county treasurer a list of the lands. This letter reached the county treasurer on the 11th. The annual tax sales closed on the 7th day of December, 1895, and four days prior to the receipt of the list of lands.

“ Upon receipt of such list, the county treasurer made out and issued to D. William Paine certificates |of purchase for the taxes of 1893 of the lands which had been purchased by defendants December 3, 1894, for the taxes of 1891 and 1892, and certificates of redemption of the other lands described in the list .from the taxes of 1893, and tax receipts for the taxes of 1894. These receipts and certificates of purchase and redemption were mailed to complainant at Philadelphia. On the 14th day of December, complainant’s attorney at Philadelphia wrote a letter to the county treasurer, acknowledging the receipt of the certificates and tax receipts, and made inquiries concerning the taxes for 1892. This letter reached the county treasurer on the 16th or 17th of December, and was answered on December 17th. On the 21st day of December, complainant’s attorney at Philadelphia wrote the county'treasurer, and for the first time informed him that they desired the money which had been sent to him to be applied to the payment of the earliest taxes in arrears, and4 asked him to apply the money to the payment of the taxes of 1892, and make a proper adjustment of the matter. On the 23d day of December, 1895, the county treasurer wrote complainant’s attorney the following: ‘Your list did not reach this office until the time for redemption of 1892 taxes had expired. A tax title for that year is not very good, and you can probably settle with the parties who purchased the taxes for that year at a reasonable rate of interest.’ The above letter closed the correspondence, Nothing further was done by complainant concerning the taxes and tax deeds of defendants for the years 1891 and 1892 until the commencement of this suit.

‘.‘ Each of the defendants filed a cross-bill to quiet the title in him to the lands deeded to him by the auditor general. The cross-bills allege the regularity and validity of the sales and deeds to the defendants, and also a title in fee simple in the defendants by virtue of the tax deeds. Complainant, in her answers to the cross-bills, neither admits nor denies these allegations -in the cross-bills, except to deny their validity upon the ground that defendants’ deeds have not been recorded, and except that in her answers she refers to the allegations in her bill of complaint, and adopts those allegations as part of the answers.”

Counsel claim that the depositing of the letter containing the draft in the post-office at Philadelphia was a delivery of the draft to the county treasurer, and that, as the letter was mailed before the expiration of the time in which redemption might be made, defendants have no title based upon the taxes of 1891 ahd 1892. They cite certain cases, all of which are insurance cases, which hold that a forfeiture will be prevented if the draft is sent on the day payment should be made. We’think it would be a novelty to apply this doctrine to a redemption of lands from sales for taxes. The person having the right to redeem must avail himself of that right during the time fixed by the statute. See Paine v. Commissioner of State Land Office, 66 Mich. 245 (33 N. W. 491). The money came to the county treasurer after the period of redemption was ended. He made no effort to apply the money to the redemption of the lands. The complainant was advised of what he had done, and she in turn made no effort to have it so applied.

The county treasurer used the money for the purpose of buying the land for the taxes of 1893 in the name of D. William Paine, to whom certificates of purchase were issued, and later deeds were made. It is now claimed these deeds cut off the title of defendants. Mr. Paine had been dead for several years when the money was sent to the county treasurer, and when the certificates of purchase and the deeds were made. It has long been settled that a deed running to a grantee not in existence is a nullity. Skinner v. Grace Church, 54 Mich. 543 (20 N. W. 577).

It is said defendants did not prove a shadow of title to the lands, as they did not prove a decree or proceedings leading up to a decree. The bill filed by the complainant avers that defendants obtained tax titles to these lands, and then alleges:

“ That said lands so bid in in the name of said Boynton were subject to redemption for one year after the same were sold by the State for the taxes for the year 1891; also for the taxes for the year 1892; and that, after the said year for redemption had expired, the title became absolute in said Boynton, and it became and was then and there his duty to pay all taxes assessed thereon; that the bids made in the name of Herman F. Harbeck for the taxes for the year 1892 were subject to redemption for one year thereafter, and, when that year of redemption expired, the title to said lands so bid in as aforesaid vested in said Harbeck, and it became and was then and there his duty to pay all taxes assessed against said lands aforesaid, — if they, or either of them, expected to, or intended to, claim said lands by virtue of said several tax sales aforesaid.”

The bill then avers that the taxes were paid by complainant in the way we have already discussed. The answers of defendants admitted obtaining tas deeds on these lands, and their title thereto, and denied complainant had paid the taxes on the lands. Upon the trial, defendants introduced their deeds in evidence. As we have already said, complainant did not redeem these lands. Under the pleadings we do not think she can now urge that defendants have not shown any title in themselves. Emerson v. Atwater, 12 Mich. 314.

The decree is affirmed, with costs

The other Justices concurred.


text:
      In re LEWIS.
    1. Habeas Corpus — Review of Conviction — Evidence.
    Where jurisdiction is shown, the sufficiency of the evidence to sustain a conviction will not be reviewed on habeas corpus.

    2. Same — Jurisdiction.
    Where the judgment of a superior court is collaterally attacked by proceedings in habeas corpus, nothing will be intended to be out of the jurisdiction of such court except that which especially appears to be so.
    3. Same — Information—Commitment.
    A prisoner will not be released on habeas corpus because the order of commitment recited his offense as larceny “from a store ” merely, instead of the statutory offense of larceny in a store in the daytime, if the return sets up facts, the consideration of which is not objected to by petitioner, showing that he was informed against and tried for, and convicted of, the statutory offense.

      Habeas corpus by George W. Lewis to secure his release from the State house of correction and reformatory at Ionia.
    Submitted May 1, 1900.
    Petitioner remanded May 15, 1900.

      George E. & M. A. Nichols, for petitioner.

      Horace M. Oren, Attorney General, for the people.
   Montgomery, C. J.

The return shows the petitioner is held by the warden of the State house of correction and reformatory at Ionia by virtue of a judgment of the circuit court for the county of Kalamazoo. The judgment entry recites that the prisoner has been “duly convicted of the crime of larceny from a store, as appears by the* record thereof,” and concludes .with a sentence to the State house of correction and reformatory at Ionia for a term of four years.

It is contended that the prisoner should be discharged for the reason that the commitment does not, on its face, show that the offense of which the prisoner was convicted was one punishable by imprisonment in the institution to which he was committed. The defects pointed out are that the recitation is that larceny “from” a store was committed, whereas the offense defined by the statute is larceny “in” a store, and that the judgment does not recite that the larceny was committed in the daytime, which is also an ingredient of the offense. The return of the officer is accompanied by a copy of the information upon which the petitioner was tried. The record, as thus supplemented, shows that he was tried and convicted of the statutory offense.

The return also shows what the testimony tended to show, and petitioner’s counsel contend that this testimony does not show that the offense was committed in the store building, within the meaning of the statute. It is not the office of habeas corpus to review the proceedings of the trial court, where jurisdiction is shown. Such review should be taken on a writ of error.

Is the commitment so defective as to require the enlargement of the petitioner? In determining this, it is to be kept in mind that the proceeding under review was had in a superior court. In habeas corpus proceedings, as in others where the attack is collateral, the judgments of a superior court receive different consideration than that accorded to those of inferior tribunals. Hurd, Hab. Corp. 367 et seq. The general rule is that nothing shall be intended to be out of the jurisdiction of a superior court, except that which especially appears to be. Id. 367. We find it unnecessary to determine whether this judgment entry, standing alone, would be sufficient evfi dence. It is common practice to accompany a writ of habeas corpus by a writ of certiorari. This course was not taken in this case, but the return sets up the facts, and petitioner’s counsel offer no objection to their consideration. By this return it appears that the prisoner was convicted by a court of competent jurisdiction of an offense properly charged, and which subjected him to the punishment meted out to him. Under such circumstances, the petitioner should not be discharged. Hurd, Hab. Corp. 419 et seq.

The prisoner will be remanded to serve out his sentence, unless sooner discharged.

The other Justices concurred.


text:
    PORTER v. CORBIN.
    Tax Sales — Purchase by Mortgagee — Effect of.
    A mortgagee cannot acquire title to the mortgaged premises, as against the mortgagor or other mortgagees, by purchase at a tax sale, but such purchase amounts to a mere redemption of the premises, inuring to the benefit of all of the parties.
    Appeal from Eaton; Smith, J.
    Submitted April 11, 1900.
    Decided May 15, 1900.
    Bill by Albert Porter, Prank H. De Golia, and William Smith against John M. Corbin, Edwin S. Harris, and Roscoe D. Dix, auditor general, to quiet title. From a decree for complainants, defendants Corbin and Harris appeal.
    Affirmed.

      Huggett & Smith, for complainants.
    • J. B. Henclee (Corbin & Peters, of counsel), for appellants.
   Long, J.

Complainants filed this bill for the purpose of removing a cloud and quieting title to lots 1, 2, 3, and 4 of block 31, Waldron’s addition to the village (now city) of Baton Rapids, this State. The cloud was occasioned through the purchase of a tax title by defendants Harris and Corbin, December 2, 1895, for the taxes of 1893, at which time complainant Porter was in possession by tenant, under a written contract of purchase.

It appears that February 27, 1890, J. M. C. Smith purchased the premises in question from defendants Corbin and Harris for $600,, and gave back a purchase-money mortgage to them for $300, payable in three equal annual installments. Smith sold the premises soon thereafter to Albert Porter on a written contract, under the terms of which Porter was to have possession, and pay the taxes on the premises. Complainant Porter thereafter executed a mortgage upon the premises and other lands for $5,000 to complainant De Golia. In April, 1893, J. M. C. Smith and wife quitclaimed the premises to Herbert H. Hamilton, as cashier of the Michigan State Bank, subject to the contract with Porter. This purchase was made with the funds of the bank, of which Corbin was president, Hamilton cashier, and Harris assistant cashier. December 30, 1895, complainant William Smith purchased the apparent title of Hamilton in the premises, and now claims to hold the same in trust for complainant Porter. May 1, 1893, Porter and wife gave a mortgage to defendant Corbin upon these and other lands for $10,000. It also appears that December 2, 1895, the premises were sold for the delinquent taxes of 1893, and a deed made for the same to defendant Harris on March 5, 1897. It is conceded that defendant Corbin has a half interest in this Harris tax deed.

The main contention of counsel for complainants in relation to the claim of defendants Harris and Corbin is that they, being mortgagees, can acquire no title under this tax deed as against the mortgagor. It appears that the defendants were acting in entire good faith, and the question is purely a legal one. The rule is well settled, we think, that a mortgagee cannot acquire title to the mortgaged premises by purchase at a tax sale; the rule being that such purchase amounts to a payment of the tax, and inures to the benefit of the mortgagor. Our statute (Act No. 306, Pub. Acts 1893, § 53) provides that “any person having a lien on property may, after thirty days from the time the tax is páyable, pay the taxes thereon, and the same may be added to his lien, and recovered, with the rate of interest borne by the lien.” It was held by this court in Boardman v. Boozewinkel, 121 Mich. 320 (80 N. W. 37), that where the purchaser at a tax sale at the time of the purchase was the attorney for the mort-gagee in a foreclosure proceeding on the land sold, and afterwards conveyed his interest by quitclaim to his client, and there being no evidence to show that the attorney claimed title, the purchase amounted to a redemption from the sale in favor of his client, and could not be considered as an independent title. Jones on Mortgages (§ 1134) lays down the rule in its broadest terms'. It is said: “Inasmuch as the mortgagee has the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded merely as such payment, and not as giving him a title.”

In the case of Eck v. Swennumson, 73 Iowa, 423 (35 N. W. 503, 5 Am. St. Rep. 690), it appeared that judgment of foreclosure of a mortgage was obtained March 30, 1881, on a mortgage dated May 37, 1878, and on the same day the judgment was assigned to plaintiff. The premises were sold on execution in February, 1885, and bid in by the plaintiff, to whom a sheriff’s deed duly issued. In November, 1879, the propei’ty was sold for the taxes of 1878, and bid in by the mortgagee, who assigned to a third person. A tax deed was issued to this person, who afterwards conveyed to defendant. It was held that, as the mortgagee had the right to pay the taxes in order to protect his mortgage, his purchase at the tax sale must be regarded as such payment merely, and could not operate to give him title.

In some of the States it is held that a mortgagee out of possession may acquire a tax title; but in a majority of the States this rule does not prevail, but the rule is that a mortgagee, either in or out of possession, may not acquire it as against the mortgagor or other mortgagees. Especially is this the rule in those States where, by the statute, one having a lien upon the premises is permitted to pay the tax and add the amount to his lien. In Maxfield v. Willey, 46 Mich. 252 (9 N. W. 271), it was held that neither party to a mortgage could cut off the other’s interest by bidding in the premises at a tax sale, if the other objected .thereto.

The relations between complainants and defendants Corbin and Harris were such at the time the premises were bid in for the taxes and deeded to Harris that the transaction must be regarded as a redemption, and Corbin and Harris can claim no title under the tax deed. The amount bid was $24.29, which complainants have been willing to pay, with interest.

The decree of the court below must be affirmed, with costs.

Montgomery, C. J., Moore and Grant, JJ., con. curred. Hooker, J., did not sit.


text:
    EBERLE v. HEATON.
    1. Equity — Bill—Alternative Prayer — Multifariousness.
    A bill praying for the correction of a mistake in a written party-wall agreement so as to accord with the understanding of the parties who executed it, fixing the center of the wall as the boundary between their respective premises, is not rendered multifarious by an amendment adding, as an alternative prayer, that the written agreement be annulled and the center line of such wall be declared to be the boundary, line, since in either case the rights of the parties are sought to be declared in the same terms.
    2. Same — Party-Wall Agreement — Mistake — Reformation — Defenses.
    Where the owners of adjacent lots, who have occupied the same for 20 years upon the assumption that the line between their respective buildings is the true boundary line of their premises, enter into a parol agreement (one of them, a nonresident, acting by an attorney-in fact) for the maintenance of a party wall, establishing thereby a boundary line slightly more favorable to the nonresident owner than the one theretofore recognized, which agreement, when reduced to writing ' and executed by the resident owner and such attorney-in-fact after the erection of the wall in accordance with the parol agreement, mistakenly describes a line still more favorable to the nonresident, the latter cannot complain of a decree making the writing conform to the parol agreement, on the ground that the attorney’s authority was in fact limited to the execution of the agreement as written.
    8. Same — Negligence.
    Negligence in the execution of a written contract will not bar relief therefrom in equity on the ground of mistake, where the other party has done nothing to his prejudice in reliance on the terms of the writing.
    Appeal from Jackson; Peck, J.
    Submitted May 1, 1900.
    Decided May 15, 1900.
    Bill by Carl Eberle and Sophie Eberle against Rufus Heaton to restrain the prosecution of an action of ejectment and for other relief. From a decree for complainants, defendant appeals.
    Affirmed.

      John W. Miner (Grove H. Wolcott, of counsel), for complainants.

      Blair, Smith & Townsend, for defendant.
   Montgomery, C. J.

The bill in this case was filed to correct a mistake in a party-wall agreement, and to restrain the further prosecution of an ejectment suit brought against the grantee of complainants. The testimony on the hearing disclosed the following facts: Prior and up to the fall of 1893 the complainants (who are husband and wife) and the defendant owned adjoining parcels of land on the south side of East Main street in the city of Jackson. The complainants’ premises lay just east of the defendant’s. By the descriptions in their respective deeds the complainants’ lot had a frontage on Main street of 18 feet, and the defendant’s of 15 feet. The front portions of both parcels were covered by old wooden buildings, which directly adjoined each other, and had been occupied for business purposes for more than 20 years. During all of that period, each party and their grantors had possessed and occupied these buildings as their property without question or dispute as to the division line, and as though the line between these buildings was the true division line between their respective premises. In the fall of 1893 the complainants determined to join with one Neesley, who owned the lot next east of theirs, in building a modern brick building covering substantially both of their lots, and having a united frontage on Main street of about 46 feet. They tore down the old wooden buildings on the premises, and began excavating for the foundation walls.

The defendant resided at Rouse’s Point, N. Y., and left his property in general charge of his nephew, Frank Heaton, who resided in Jackson, and was defendant’s agent for the purpose of collecting the rents, making repairs, and overseeing this with defendant’s other real estate in Jackson. When the complainants began to make excavations and lay in said concrete and foundation, said Frank Heaton, who was about the premises overlooking the matter for the defendant, thought that complainants were crowding the foundation and wall over on defendant’s land, and forbade Mr. Lake, one of the contractors, from proceeding further with the work until the matter should be definitely understood. Mr. Lake, an experienced contractor, suggested that the parties make a party wall of it, and make a mutual agreement covering the subject, to which both Frank Heaton and the complainants assented, and such an agreement was orally made by Frank Heaton and Mr. Lake, acting for complainants, by which it was provided, among other things, that the wall should be a party wall, having its center on the line then determined upon, and marked by a nail driven in the sidewalk. This nail was to be, and actually was, 14 feet and 7-]- inches east from the east wall of Bennett’s building, located on the lot next west of the defendant’s. It was understood between Frank Heaton and the complainants that the oral agreement thus made should be put into the form of a written contract to be signed and executed by the parties. The complainants, however, did not wait for this to be done, but proceeded with the work of construction, and located the wall with its center at the point and on the line so agreed upon. This oral agreement was made some time in October, and, before any written agreement with reference to tho party wall was executed, the complainants and Neesley had completed the brick building. On the 7th day of November, 1893, a written contract was prepared by Judge Lewis M. Powell, which was finally executed by complainants and defendant, by Frank Heaton, his attorney-in-fact, on the 26th day of February, 1894. This contract located the west line of the party wall “fourteen feet seven and one-half inches easterly, by the line of Main street, from the east side of the brick wall of the adjoining building, owned by Charles E. Bennett.”

So far we have taken our statement from the brief of defendant’s counsel, from which it clearly appears: First, that there was an oral agreement that the center line of the division wall was to be 14 feet 7-J- inches from the east side of the Bennett building; second, that it in fact was so placed; third, that, after it was so placed, the party-wall agreement was executed, which did not accord with the parol agreement.

The testimony of the county surveyor establishes the fact that the division line as fixed by actual occupancy for more than the statutory period was still less favorable to the defendant than the parol agreement and actual location of the wall, and that by the parol agreement the defendant actually gained 3-J inches, and that, if the written contract is to stand, he will gain about 13|- inches. We are also convinced that the complainants and defendant’s agent understood, at the time of the execution of the written agreement, that it did not fix the boundary line different than it had been fixed by the oral agreement and actual location of the wall.

At the close of the testimony, complainants were permitted to amend their bill by adding an alternative prayer as follows:

“Or that the defendant be perpetually enjoined from maintaining the said ejectment suit, and that he be required to pay to complainants one-half the cost of such wall within a reasonable time, and that the center of such wall be declared to be the boundary line between the lands of said defendant and said William Breitmayer, and that the said written agreement be set aside and annulled.”

The circuit judge granted the relief prayed, and defendant appeals.

Defendant contends that by the amendment to the bill it was made multifarious. It is conceded that a bill may have a double aspect and an alternative prayer if the two prayers are not inconsistent, but it is claimed-that these prayers are inconsistent. We do not think the eases cited are controlling, and we do not discover any inconsistency in the prayers. Both the original bill and the amended prayer prayed for an injunction restraining the prosecution of the suit in ejectment, and prayed that the center line of the wall be declared tbe boundary line between the two properties. It is true, the original prayer was for a reformation of the instrument, and the amended prayer asks that it be set aside; but in either case it is asked that the legal rights of the parties to the property be declared in the same terms. The amendment was probably intended to meet a possible difficulty arising out of want of authority in the agent to execute any other than the agreement actually signed.

On the merits the equities are very clearly with the complainants. It is manifest that complainants did not intend to grant away the partition wall already constructed, nor did the agent of defendant understand that his principal was acquiring it.

It is contended that complainants are not entitled to relief, because they failed to ascertain the authority of defendant’s agent, which was in fact limited to the execution of the instrument as written. The complainants may have taken the risk of the agent’s authority, but in doing so they did not bind themselves to an undertaking to which they never intelligently assented, unless they are guilty of such culpable negligence as debars them, or are estopped by their conduct. We are satisfied that complainants should not be held barred by their negligence, inasmuch as no action by defendant with reference to the possession of this land has been induced by their laches. 2 Pom. Eq. Jur. § 856. Nor is there any element of estoppel. The defendant has parted with nothing on the strength of complainants’ mistake. Id. § 870. If the agreement were wholly canceled, the rights of the parties would be determined by their previous undisputed occupancy and tbe verbal agreement, and the rights accorded by the decree are only those to which the complainants are entitled.

The decree is sufficiently favorable to defendant, and is affirmed, with costs.

The other Justices concurred.

       Viz.: Shields v. Barrow, 17 How. 130; Livingston v. Hayes, 43 Mich. 129 (5 N. W. 78); Schafberg v. Schafberg, 52 Mich. 429 (18 N. W. 202); Ogden v. Moore, 95 Mich. 290 (54 N. W. 899).


text:
    UNITED STATES, for use of CROLL, v. JACK.
    1 Contracts —Construction of Public Buildings — Contract or’s Bond — Rights of Subcontractor.
    Under 28 U. S. Stat. chap. 280, p. 278, which provides that persons contracting with the United States for the construction or repair of any public building shall execute a bond for the payment of “all persons supplying them labor and materi als in tbe iirosecution of the work,” a subcontractor who fur nishes such labor and materials is within the protection of th^bond so given.
    2. Same — Approval of Architect —Performance Rendered Impossible.
    One furnishing materials for the prosecution of such a work is entitled to the protection of the contractor’s bond to the extent of the value of such materials, although a portion thereof are attached in transit by creditors of the contractor; and this notwithstanding the supervising architect’s approval of such materials, when in place, was made a condition precedent to payment therefor.
    Error to Jackson; Peck, J.
    Submitted April 3, 1900.
    Decided May 18, 1900.

      Assumpsit by the United States, for the use and benefit of Edward L. Croll, against Robert M. Jack and Daniel F. Jack, copartners as Robert M. Jack & Son, as principals, and Henry Hayden, James E. Barrett, George H. Porter, Wright H. Calkins, and John E. Kennedy, as sureties, upon a statutory bond. From a judgment for defendants on verdict directed by tbe court, plaintiff brings error.
    Reversed.
    By an act providing for the protection of persons fur* nishing materials and labor for the construction of public-works, approved August 13, 1894, Congress provided:
    ‘ ‘ That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the department under the direction of which said work is being or has been prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties, and to prosecute the same to final judgment and execution.” 28 U. S. Stat. chap. 280, p. 278.
    On the 18th of May, 1895, the defendants Jack & Son entered into a contract with the government, acting through the supervising architect of the treasury, by which Jack & Son undertook to furnish all labor and materials for the interior finish of the post-office building in Columbus, Ga., for the price of $10,700. At the same time the defendants Jack & Son as principals, and the other defendants as sureties, entered into a bond for the faithful performance of the contract, and containing also a condition that the contractors should “promptly make payments to all persons supplying them labor or materials in the prosecution of the work contemplated by said contract.” In November, 1895, Jack & Son entered into a contract with plaintiff, who resides and is engaged in business at Middletown, Pa. The plaintiff by this contract undertook to furnish all labor and materials necessary for the interior finish in the following manner, namely:
    “Do all mill work and put same together according to plans and specifications furnished by the supervising architect, and all work to be made to the entire satisfaction of the supervising architect. The party of the second part further agrees to furnish all the frame pulleys, give all the interior work one coat of an approved filler and one coat of hard oil, all to be loaded on board cars at Middletown, Dauphin county, Pa., for the sum of thirty-eight hundred dollars.”
    The contract further provides that the second party (Croll) agrees to push the work to completion without delay, and, further:
    “The party of the first part agrees to pay the thirty-eight hundred dollars in payments as follows: Ninety per cent, in monthly payments of the work shipped and in place, and the remaining ten per cent, after the final acceptance by the supervising architect or his authorized agent.”
    The plaintiff commenced work on the interior finish and material referred to, and prepared specially for use in said building to the amount and value of about $2,263.06. He received in cash to apply on said contract the sum of $300. The first car load was shipped about January 11, 1896, and amounted in value to $960.59. The second car load was shipped February 29, 1896, and was worth, under the contract, $1,267.25. Nearly all of the interior finish shipped in the first car load was actually placed in position in the building. The testimony further shows that in March, 1896, the government took possession of the building, and stopped work on the part of Jack & Son, because of their failure to diligently prosecute the work; that the creditors of Jack & Son attached the second car load at Columbus, Ga., while it was still in possession of the railroad company, and before delivery to Jack & Son; that said creditors obtained execution, and sold said car load of lumber; that the plaintiff after-wards made a- contract with the government to permit him to furnish such interior finish as was then necessary, and that the plaintiff afterwards bought back the second car load of the interior finish from the party who had purchased it upon execution sale, and it was used in the building; that none of the second car load shipped to Jack & Son by the plaintiff went into the building until after plaintiff had bought it fro hi the execution purchaser, and sold it directly to the government.
    The record presents two questions:
    1. Is the plaintiff entitled to recover on this bond ? •
    2. If he is so entitled, can he recover for the car of material actually shipped, but not put in place by defendants Jack & Son?
    The circuit judge decided both these questions in the negative, and directed a verdict for defendants. Plaintiff brings error.

      Forrest G. Badgley and James A. Parkinson, for appellant.

      Wilson & Cobb and Richard Price, for appellees.
   Montgomery, C. J.

(after stating the facts). The ground upon which the main question appears to have been decided is that the statute does not protect subcontractors, and that plaintiff is a subcontractor, within the ruling in Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538 (39 N. W. 742); People v. Cotteral, 119 Mich. 27 (77 N. W. 322). These cases hold that one occupying such a relation to the principal contract as that held by the plaintiff in this case is a subcontractor. It would follow, therefore, that if the act in question, and the bond given in pursuance to its provisions, do not protect a subcontractor, these cases should be held decisive. There has been, so far as we are advised, no interpretation of this statute by the federal courts which is of aid in determining this question. It is contended, however, that our own decisions above cited rule this question in favor of defendants. The case of Avery v. Board of Sup’rs of Ionia Co., which the Cotteral Case follows, construes a statute materially different from the one under consideration. The statute is section 10744, 3 Comp. Laws 1897. The condition of the bond required is “for the payment by such contractor or any subcontractor * * * of all indebtedness which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished,” etc. In the Avery Case, above cited, much stress is properly placed on the italicized words of the statute above quoted. It was held that the bond required was not for the protection of subcontractors, “ but to protect material men and laborers at the hands of the contractor and subcontractor. ” In this case the statute attempts to protect all persons supplying the contractor or contractors labor and materials in the prosecution of the work provided for in such contract. The language could not well be more comprehensive, and, as there is nothing in the statute which directly or by fair implication excludes such subcontractors, we think it should be held to include such subcontractors as supply labor and materials in the prosecution of the work.

The plaintiff under his contract made a shipment of material to be used in the building, which, through no fault of plaintiff, was seized under a writ against Jack & Son. Such material was furnished for the prosecution of the work, and the plaintiff is within the protection of the bond to the extent of the value of such material, unless it be held that, as the contract provides for payment only after the work and material are accepted by the supervising architect, nothing is due to the plaintiff on account of the same. This is contended, and cases like Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and Boots v. Steinberg, 100 Mich. 134 (58 N. W. 657), are cited in support of this contention. These cases áre not authority for the doctrine that, where the contract purchaser has put it beyond the power of the vendor to furnish evidence of inspection or approval by an arbiter, the vendor must lose the goods, nor does such a rule commend itself to our ideas of justice. We think, to the extent of. the value of the goods in their condition when seized, the plaintiff is entitled to recover, as they were furnished, so far as it was possible to do so, under the contract.

Judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    KRUPP v. ADAMS.
    Execution — Partnership Property — Individual Debt — Enjoining Sale.
    An officer who has levied on the undivided interest of a member of a copartnership in a portion of the partnership property, to satisfy an individual debt of such copartner, may, at the suit of the firm, be perpetually enjoined from selling the property under such levy.
    Appeal from Kent; Adsit, J.
    Submitted April 5, 1900.
    Decided May 18, 1900.
    Bill by John C. Krupp and Anthony Ernest, copartners, against William M. Adams and others, to restrain the sale of certain property under an execution. From a decree for complainants, defendants appeal.
    Affirmed.

      Dunham & Dunham, for complainants.

      Maher & Salsbury, for defendants.
   Per Curiam.

This cause is referred to in the case of Ernest v. Woodworth, ante, 1 (82 N. W. 661). That case was in replevin for certain apples. In the present case, a bill was filed to restrain the defendants from selling the apples in controversy. The facts are sufficiently stated in the other case, except that it now appears in the •present case that the court on the hearing entered a final decree making the injunction perpetual, with costs in favor of complainants. Defendants have appealed. The other case having been affirmed, the decree here must be affirmed under the decision in that case. Complainants will recover costs.