author: Mo Alva Y, J.

text:
    GRAHAM v. CITY OF DETROIT.
    1. Taxation — Stipulation op Facts — Admissions.
    In a stipulation filed in ejectment proceedings, a clause stating that the court in chancery had decreed that the “tax assessments thereon were a valid lien upon the said lands and that the lands were sold to satisfy such lien ” did not constitute an admission that the decree was valid, or that the tax deeds subsequently issued to plaintiff were regular and valid.
    2. Highways and Streets — Municipal Corporations — Ejectment — Title—Easements.
    A municipality in its control of the highways acts for the State and has no right to the possession or use of such easement other than for the benefit of the general public; the rights of / easement are in the State.
    3. Ejectment — Streets—Cities.
    Ejectment does not lie against a city to oust it from the use of a public street.

      4. Taxation — Streets—Tax Titles — Auditor General.
    The auditor general has no authority to issue tax deeds covering premises that have been taken by eminent domain proceedings for the purpose of a public street, after the assessment of the tax but before the purchase from the State.
    Error to Wayne; Murphy, J.
    Submitted October 18, 1912.
    (Docket No. 150.)
    Decided April 8, 1913.
    Ejectment by William H. Graham against the city of Detroit. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      Albert McClatchey, for appellant.

      Walter Barlow {Bichard L Lawson, of counsel), for appellee.
   Mo Alva Y, J.

Plaintiff brought an action in ejectment against defendant to recover possession of two certain descriptions of land situated in Detroit. It will not be necessary to give these descriptions at length. They are referred to in the briefs as the Delray description and the Gladstone description, and will be so designated in this opinion. The right and title of plaintiff in and to said lands is based upon certain tax deeds issued by the auditor general of the State to him, under which deeds he gave the statutory notice to the defendant within the proper time to repurchase said lands; and the six months having expired, and no repurchase having been made by any person, this suit was instituted.

The Delray description for delinquent taxes assessed for the year 1905 was sold to the State in May, 1906, and the Gladstone description for delinquent taxes for the year 1904 was sold the State in May, 1907. In September, 1909, more than one year later, plaintiff purchased both descriptions from the State, and deeds were issued to him. On February 6, 1906, the original owner of the Delray description, by quitclaim deed, conveyed it to the village of Delray for the purpose of exclusive use as a street. This land was accepted by the village of Delray as a part of the public street known as Posen street, and has been so used and occupied up to the present time. The deed from Gaukler was recorded with the register of deeds for Wayne county March 6, 1906. The limits of the city of Detroit in the meantime were extended to include the village of Delray. Defendant, the city of Detroit, on March 28, 1908, first filed its petition in the recorder’s court of the city of Detroit for the purpose of taking the description known as the Gladstone description by condemnation for street purposes. On June 29th a jury, which had been impaneled, filed its findings of necessity for taking such land for street purposes and its award to the owners thereof. This verdict was confirmed July 9, 1904, and defendant city immediately took possession of the land for street purposes, and ever since that time it has been used exclusively for public travel and known as a public street, Third avenue. All the facts in the case were stipulated upon the trial.

At the close of the case defendant moved the court to direct a verdict in its favor, for the reason that it appeared from the undisputed facts that these descriptions in the plaintiff’s declaration are used by the public as public highways, and the public has only an easement in said lands for that purpose, and the action of ejectment will not lie against defendant to determine the right of the public to such use; that such easements for highway purposes in this State belong to the people at large, and not to any political subdivision to determine such rights; that, before the lands in question were bid off by the State at tax sales, these easements to use these lands as public highways had already been acquired, and the result of such tax sales to the State was to cancel and discharge the payment of the taxes in question, and the tax deeds to the plaintiff conveyed no interest in the lands to him.

Plaintiff requésted the court to charge the jury that the claim and right to possession in this ejectment suit under said tax land deeds, the proceedings being regular under the tax law culminated in this sale to him, established an unincumbered fee in the land, and he having taken all the statutory steps after the sale to him in time and manner as provided by law, and no repurchase having been made, the defendant was guilty of unlawfully withholding from him possession thereof; that any defense interposed in an action of ejectment to lessen the estate conveyed by such deeds by taking away the right of possession is a collateral attack upon the decree and proceedings upon which such deeds are based and is not permissible. This amounts to a request for a directed verdict for plaintiff. The court refused these requests, and granted defendant’s motion. A verdict was accordingly directed, and upon this verdict judgment was entered in favor of defendant. The case is brought here upon a writ of error. Errors are assigned by appellant upon the refusal of the court to direct a verdict in his favor, and because a verdict was directed in favor of defendant.

The declaration filed in this case was the ordinary declaration in ejectment. Defendant gave notice under the plea of the general issue that it did not own or claim to own the lands in question, but, on the contrary, only claimed an easement therein for the purpose of public travel, and that both descriptions were used by the public for such purposes as parts of public highways; that the right of the public to use the lands could not be determined in ejectment.

In the brief of appellant it is claimed that defendant in the stipulation of facts admits—

** That the decree of the circuit court for the county of Wayne decreeing that the taxes involved were a valid lien against the lands, and that the lands should be sold to satisfy such lien, was a valid decree.”

Defendant denies that the stipulation of facts warrants such claim, and insists that it is only a deduction of the appellant from the stipulation of facts filed in the case. It is apparent that this is so from the plea and notice of defendant, above stated, and also from the statement of facts in the record, which is a recitation of the proceedings taken under the statute providing for the sale of delinquent tax lands, and it is recited that the court decreed—

“ That the said tax assessments thereon * * * were a valid lien upon the said lands, and that the lands were sold to satisfy such lien.”

This is not an admission as claimed, but is a statement contained in every decree made pursuant to the auditor general’s petition and the statute, nor was it an admission that the said tax deeds were regularly and properly issued by the auditor general to the plaintiff.

The contention of the defendant is that in this State the public does not own the fee to the lands used by it for public highways and streets, but only an easement in such lands, which is only the right to use them for the purpose of public travel; that such an interest is not subject to ejectment, for the reason that it is intangible and incorporeal. City of Grand Rapids v. Whittlesey, 33 Mich. 109; Bay County v. Bradley, 39 Mich. 163 (33 Am. Rep. 367); Taylor v. Gladwin, 40 Mich. 232, 234; Detroit v. Railway, 172 Mich. 136 (137 N. W. 645); Lynch v. Town of Rutland, 66 Vt. 573 (29 Atl. 1015). (See Harrington v. City of Port Huron, 86 Mich. 46, 51 (48 N. W. 641, 13 L. R. A. 664).

The Delray description was bid in by the State of Michigan for delinquent taxes of 1905 in May, 1908, for $2.97, and the Gladstone description was bid in by the State of Michigan for the delinquent taxes of 1904 in May, 1907,. for $4.79. In September, 1909, plaintiff purchased each of the descriptions from the State at the prices above named, upon which tax deeds were issued by the auditor general under which he claims title.

The Delray description was acquired by defendant to be used exclusively for highway purposes in February, 1906, and the Gladstone description obtained by condemnation for the same purposes in July, 1904. The easement in the lands in question for the purposes of public travel belonged to the State at the time it purchased such lands at the tax sales. A municipality in its control of these highways acts for the State, and has no right to the possession or use of these easements other than the public generally. It takes the burden of maintaining such easements fit for public travel. Lynch v. Town of Rutland, supra. These easements belong to the State, and were in use as public highways at the time they were bid in to the State for delinquent taxes.

The defense that plaintiff acquired no title to these lands through the State tax deed issued by the auditor general is not a collateral attack upon the decree in the tax proceedings. It challenges the power and authority of the auditor general in the name of the State to issue deeds to lands in which the State had already acquired easements for the public use as part of its public highways.

The court was therefore not in error in refusing to grant the request of plaintiff and in instructing a verdict for defendant.

The judgment of the circuit court is affirmed.

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


source: Caselaw Access Project

author: Stone, J. Moore, J.

license: Public Domain

text:
    KIMBALL v. BATLEY.
    1. Specific Performance — Frauds, Statute of — Estates of Decedents — Evidence.
    Evidence, tending to show a parol contract of decedent to convey to complainant a farm in consideration of maintaining decedent during his life, examined, and held, insufficient to prove the alleged agreement or any acceptance of its terms by complainant, or substantial performance of its conditions. Moore, J., dissenting.
    2. Same — Mutuality.
    A contract, to be specifically enforceable in equity, must be binding on both parties alike, as to obligation and as to remedy.
    8. Same.
    On a bill to enforce specifically a parol contract to convey land, not only must the proof of the contract be clear, but it must establish a contract substantially as averred.
    ,4. Same.
    Equity will not decree specific performance of a contract that is uncertain.
    5. Same — Equity.
    Even a binding contract will not be enforced specifically if it is inequitable to grant the remedy.
    Appeal from Ingham; Collingwood, J.
    Submitted October 18, 1912.
    (Docket No. 161.)
    Decided April 8, 1913.
    Bill by Homer Kimball against Estella Batley and others for specific performance of a parol contract to convey lands. From a decree for complainant, defendants appeal.
    Reversed.

      Gardner & Hood, for complainant.

      McArthur & Dunnébacke (Lawton T. Hemans, of counsel), for defendants.

       Specific performance of oral contract to devise or convey land on consideration of performing services or furnishing support, where no possession is taken or improvements made, see note in 38 L. R. A. (N. B.) 752.

   Stone, J.

I am unable to agree with the result reached by Justice Moore in this case. (1) It seems to me that the contract set forth in the bill of complaint has not been established by the evidence. (2) The evidence is not sufficient to show either acceptance or performance of the contract alleged by complainant. (3) Specific performance as prayed for is not equitable.

The bill of complaint, in the fourth paragraph thereof, states that in the month of February, 1908, while the decedent Stewart Scoville (the maternal grandfather of complainant) was residing with complainant’s mother in Ingham county, and while complainant was residing and working at his trade in the city of Jackson, said Scoville went to the home of complainant and expressed a desire that he might live in the home of complainant, and proposed that if complainant and his family would move on the farm it question, and make the same their home, and work said farm and improve the same, and receive said Scoville into complainant’s home, and care for and maintain and support him (said Scoville) during the remainder of his natural life, he (said Scoville) would give complainant, at the death of said Scoville, the farm, and that, at the death of the latter, complainant should become the owner of the premises.

In the fifth paragraph of the bill it is stated that complainant accepted the said proposal of said Scoville, and, in pursuance of the contract so made, moved, together with his wife and child, upon the farm; that decedent put complainant into possession of the same; and that complainant and his wife and child made the same their home, and worked said farm, and received decedent into their home and cared for, maintained, and supported him on said farm during the remainder of his natural life, to wit, until July 20, 1908.

In the sixth paragraph it is stated that complainant moved onto said farm at considerable expense, and gave up his employment as a carpenter.

In the next paragraph it is alleged that in pursuance of said proposal and the acceptance thereof by complainant, and in full confidence that the said farm would belong to him, after the death of said Scoville, complainant expended large sums of money and much labor in making valuable, lasting, and permanent improvements upon said farm, and in repairing and improving the buildings thereon, and the walls of the house, and in remodeling the inside of the house, also in blasting and in removing from the fields of said farm many large stones thereon, and in building 80 rods of wire fence, and in otherwise improving said farm, at a large expense to complainant, all of which was done with the knowledge and approval of decedent.

In the eighth paragraph of the bill it is stated that, after the parties all moved onto the said farm, the said Scoville suffered a stroke of paralysis, rendering him very feeble and irritable and petulant at times, and in a condition which required great care; that complainant and his wife gave to decedent such care and attention as his condition required; that during the greater portion of the time succeeding said stroke of paralysis, and until his death, which occurred July 20,1908, said Scoville required the constant attention of a man, and during the greater portion of the time complainant was his constant attendant; and that the care, time, and attention given to said decedent by complainant and his wife was worth a large sum of money.

1. Is this alleged contract established by the evidence ? The mother of complainant testified that she went with decedent to Jackson in February, 1908, and that she there heard a talk between complainant and decedent. When asked on direct examination to relate the talk, she testified:

“ He told him to move out there and make a home for him, and to live and board with them, and he would give them a deed of the place, after he was through with it. Before we made the trip in February, I wrote to Homer at my father’s request. I wrote and told him that he had bought a place and he wanted him to come out there and live on it and make a home for him, and he would give the deed of it after he was through with it. At that time my son was living at Jackson and was doing carpenter work.”

On cross-examination this witness testified that decedent continued to live with her until the following May; that she never told any one about this agreement until after this suit was begun; that her father was 88 years old when he died. Later in her cross-examination she testified that she had told of the agreement before this suit was begun, but she could not name any one she had told.

This was the only direct evidence of the alleged agreement. The other testimony on behalf of complainant, offered in support of the agreement, related to certain claimed admissions or casual statements of decedent made at different times, which are just as consistent with the position that decedent intended at some future time to give the farm to the complainant, as with the claim that there was an agreement in prmsenti to convey it to complainant. In our opinion the evidence falls far short of proving the contract alleged. It should be borne in mind that this is not a claim against the estate of decedent for care and services rendered, but is a bill for the specific performance of an existing contract. Wright v. Wright, 31 Mich. 380; Ritson v. Dodge, 33 Mich. 463; Smith v. Lull, 153 Mich. 136 (115 N. W. 1003).

2. We are unable to find sufficient evidence in the record to show that there was any acceptance or performance of the terms of the alleged contract on the part of complainant. There is no evidence of any agreement on his part to perform, and no assent to the claimed proposition. It is true he moved onto the farm, but that of itself is not sufficient performance, and is as consistent with the claim of defendants as that of complainant. There is no testimony, even by complainant, that he agreed to improve the farm or support decedent; and, upon the subject of performance, the evidence is very meager. Giving complainant’s testimony its full probative force, it fails to make out a case, either of acceptance or performance of a contract, sufficient to warrant specific performance.

After testifying to his relationship to decedent when the latter died, and that complainant moved on the farm in April, 1908, and had resided there ever since, and, on cross-examination as to his residence and employment in Jackson, he further testified that he never paid any taxes on the farm, and never offered to pay any (this testimony was in August, 1910); that decedent had $18 and some cents in his possession when he died; that he was taken sick in June, and about the 1st of June decedent called a doctor, Dr. Brown of Stockbridge; that decedent always paid the doctor when he made his visits; witness did not know how much he paid him, but knew of his paying him the last $28; decedent paid that at noon before he died. Witness handed decedent $28 from the latter’s pocketbook, which witness got out of the secretary; that there might have been $75 or $80 in that pocketbook during his sickness ; that witness had not had access to the pocketbook for buying the things necessary for decedent; and that witness did buy alcohol and whisky for decedent. Then the following appears:

“Q. Where did you get the money from ?
“A. Well, sir, after he handed me the pocketbook, I had it. He handed me the pocketbook, I think, about a week before he died. There was $71 or $72 in the pocketbook then. * * *
“Q. What did you do with that $72 ?
“A. I think there was $2 spent for nightshirts and such things. There was some money spent for some eggs for him to eat; I don’t know how much. I think I handed him $28 for the doctor. I paid Frank Beeman that same noon. I paid him $20. [We gather from the record that Beeman helped care for decedent in his sickness.] I think I have got the balance. That was all paid out of this $72.
“Q. Had your grandfather let you have any other money during his sickness, or since you came out there ?
“A. Well, he did give me $5 to get some change one time. I think grandfather came to my place the forepart of May; I am sure he did. * * * I don’t know whether my grandfather bought the fence material or not. I didn’t buy it. I paid the gentleman who blasted the stone $7 and grandfather paid the $3.
“Q. Up to the time of your grandfather’s, death, had you done anything other than pay this $7 ?
“A. Why, I bought some lime, I think I paid 90 cents for that. All I can remember that I paid out was $7.90 up to the time of grandfather’s death. Outside of Mr. Foster, I employed my father and brother on the farm before grandfather’s death. They helped me on the farm in farm work. I built a fence. I have made some improvements on the farm since the death of my grandfather. I had to fix up a little fence once in a while; when it blows down or rots, you have to lay it up. There was nothing beside that in particular. I have had the entire proceeds of the farm since I was there. I do not know wjiat that amounted to. During the time grandfather lived with me, I bought him no clothing. I paid none of his doctor’s bills; I paid for none of his nursing; I paid for none of his medicine; I paid none of his funeral bill; and he bought his own eggs. I cared for him in the home; took care of him most of the time. My wife did the washing and ironing and mending, and took care of his room at the home there. My wife and I gave him the best possible care that was in our power. I could not tell what mending I or my wife did for him. I did some mending.
“Q. Now, there was some one there in attendance on your grandfather, wasn’t there, all the time during his sickness ?
iCA. Not all the time; no, sir.
“Q. Practically all the time ?
“A. Yes, sir.
“Q. Either his children or paid nurses were there every night ? '
“A. No, sir.
“Q. Practically every night ?
“A. Yes, sir; but.you understand that I was with him most of the time.
(tQ. After he was taken sick, didn’t the other members of the family come right in and assist in caring for him, the same as you did ?
“A. Well, they were there; yes, sir.”

John Foster testified that he worked on the 40 acres after Mr. Scoville bought the place; he blasted stones, trimmed the orchard, and built fences; that Mr. Scoville paid him for trimming the orchard after blasting stones and building the fences; witness went away when Mr. Scoville was not there; and it ran along two or three days, and witness saw him and he asked witness if complainant had paid him yet, and, being answered in the negative, decedent said, “Don’t worry; Homer will pay you,” and complainant did pay him; that, when decedent came after witness, he asked him to get the place fixed up in good shape so that complainant would be satisfied, and he said he had given the place to complainant.

It appears that decedent purchased the farm in question in the month of February, 1908, paying therefor $1,950. The foregoing testimony discloses substantially all that was done by complainant tending to show acceptance or performance of the alleged contract. Was complainant bound by the contract as proved ? We think not. A contract, to be specifically enforceable in equity, should be binding on both parties alike, both as to obligation and remedy. McMurtrie v. Bennette, Har. Ch. (Mich.) 124-126; Maynard v. Brown, 41 Mich. 298 (2 N. W. 30); 26 Am. & Eng. Enc. Law (2d Ed.), p. 28, and cases cited.

On a bill for the specific performance of a parol contract for the conveyance of land, the contract must not only be clearly proved, but it must be substantially the same as set forth in the bill. Wilson v. Wilson, 6 Mich. 9; Brown v. Brown, 47 Mich. 378-384 (11 N. W. 205.)

Where the terms of the contract are uncertain, specific performance will not be decreed. 26 Am. & Eng. Enc. Law (2d Ed.), p. 59, and cases cited.

■ There is much force in the position of defendants that a prior will of decedent negatives the probabilities of such a contract as is claimed. Decedent had by his will substantially dealt equally with all of his children. Should the alleged contract be enforced, it would so deplete the assets that the terms of the will cannot be carried out. The conduct of complainant after the death of decedent was inconsistent with his present position, and leads us to believe that his present claim was an afterthought, and not in good faith.

3. To grant the relief prayed for by complainant would be inequitable. In Chambers v. Livermore, 15 Mich. 381-388, Justice Cooley said:

“Specific performance, even of a binding contract, is not a matter of right; and a court of equity will refuse it, and turn the complainant over to his remedy at law, if not clearly satisfied that it embodies the real understanding of the parties.”

See, also, Smith v. Lawrence, 15 Mich. 499; Rust v. Conrad, 47 Mich. 449-454 (11 N. W. 265, 41 Am. Rep. 720); Blanchard v. Railroad Co., 31 Mich. 43 (18 Am. Rep. 142); Wright v. Wright, supra. In Fowler v. De Lance, 146 Mich. 630 (110 N. W. 41), complainants were denied specific performance in a case much stronger in its facts than is the instant case.

The decree below will be reversed, and the bill dismissed, with costs to defendants.

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

Moore, J.

(dissenting). Complainant, on February 2, 1909, filed a. bill for the specific performance of a contract which he claimed was made between himself and Stewart Scoville, deceased. The cause was heard and proofs taken in open court on the 2d day of August, 1910.

It is complainant’s claim that while he was living in the city of Jackson, working at his trade as carpenter, Stewart Scoville, his grandfather, a man past 80 years of age, came to his home and proposed that if he, Homer Kimball, would move with his family upon a certain 40 acres of land in the township of White Oak, Ingham county, more fully described in the bill of complaint, and would there maintain a home and care for said Stewart Scoville for the balance of his life, he (Scoville) would convey to him (Kimball) the property in question. He claims he accepted this offer and fully performed it upon his part. Defendants deny, as a matter of fact, that any such arrangement was made. They aver that, as a matter of law, if any parol agreement was made to convey real estate, it was void. It is also defendants’ contention that, if any such arrangement was made, there was not a sufficient consideration, and a strict enforcement would be inequitable. The trial judge made a decree granting the prayer of the bill of complaint. The case is brought here by appeal.

Counsel for defendants contend as follows:

“ (1) That the alleged oral agreement to convey to complainant the 40 acres of land in question has not been established by clear and convincing evidence as is required by law.
‘‘(2) That by reason of the unexpected death of the deceased, but shortly after complainant moved onto the farm, and because of the fact that complainant did substantially nothing in pursuance to said alleged agreement, it is unconscionable and inequitable to decree specific performance of the same.
“(3) That complainant is himself in default with respect to the alleged contract, and that specific performance of the same cannot therefore be decreed.”

1. A careful reading of the record shows that Mr. Stewart Scoville, the grandfather, was a widower and was not satisfied with the home he then had. He possessed property appraised at upwards of $9,000. The 40 acres of land he purchased cost $1,950. We have read with care the argument of counsel as to the degree of proof required to establish the contract which is sought to be enforced here. We have also noticed what is said about the will of the deceased negativing the existence of the contract, and also what is said about the conduct of complainant and the conversation of the parties at the probate office at the time of reading the will, and the claim that complainant did not at that time claim the existence of any such contract. And the further argument that complainant permitted the real estate in question to be appraised as a part of the assets of the estate and negotiated for its purchase. There was hardly an important issue in the case in which there was not a sharp conflict in the testimony. It would profit no one to recite the testimony given in the case in detail. The complainant offered 26 witnesses in his behalf. Their testimony tended very strongly to make the case claimed by the complainant.

The defendant had five witnesses, all of whom, except one, had an interest in the litigation. 36 Cyc., at page 674, reads in part as follows:

“ Care of Aged Person. A contract to care for, give personal attention to, and make a home for an aged person, whether a relative or a stranger, in return for a promise of a testamentary gift or devise, is a common form of such contract. If the performance of the contract involved the abandonment by plaintiff of his previous business or home, his equity is so much the stronger ”— citing many cases.
In the first note occurs the following:
“ There are some services that are incapable of valuation in money; as to these the law permits individuals to make their own contracts. Old age is naturally repulsive. The hair grows gray, the eyes sunken, the skin wrinkled and brown, the flesh shrunken, the figure bent, the limbs weak and trembling, the will feeble, the tongue garrulous, the mouth toothless, the mind wandering, the habits careless and filthy, accompanied oftentimes with loathsome diseases needing all the care and attention of childhood without its purity, loveliness, and affection as a compensation. To meet this condition of life a kind providence has ordinarily provided the ties of blood and marriage and parental, fraternal, and filial affection with their reciprocal duties and obligations of mutual care and support, etc. Bryson v. McShane, 48 W. Va. 126, 130 (35 S. E. 848, 49 L. R. A. 527); Best v. Gralapp, 69 Neb. 811 (96 N. W. 641, 99 N. W. 837); Vreeland v. Vreeland, 53 N. J. Eq. 887 (32 Atl. 3). It is not essential, however, that the performance should involve a pecuniary sacrifice on plaintiff’s part; ‘the fact that he was previously in humble circumstances, so that the position was in itself advantageous, is not sufficient to warrant denial of relief. Berg v. Moreau, 199 Mo. 416, 438 (97 S. W. 901 [9 L. R. A. (N„ S.) 157]).”

At page 676 occurs the following:

“ Duration of Services. It is immaterial that the services, on account of the death of the promisor, lasted only a few months instead of many years. But an agreement, to make a testamentary gift in consideration of services, will not be enforced until the services have been fully performed.”

The questions involved are not new in this State. See Lamb v. Hinman, 46 Mich. 112 (6 N. W. 675, 8 N. W. 709); Welch v. Whelpley, 62 Mich. 15 (28 N. W. 744, 4 Am. St. Rep. 810); Pike v. Pike, 121 Mich. 170 (80 N. W. 5, 80 Am. St. Rep. 488), and the many cases there cited; Ruch v. Ruch, 159 Mich. 231 (124 N. W. 52); Boot v. Snyder, 161 Mich. 200 (126 N. W. 206), and the many cases there cited. If we apply the principles of law to the testimony in this case, we think the trial court was quite right in finding that complainant had established his case.

The decree should be affirmed, with costs.


author: Steers, J.

text:
    ROHLFS v. TOWNSHIP OF FAIRGROVE.
    1. Negligence — Highways and Streets — Burden of Proof.
    It is fundamental, in all actions for negligence, that the plaintiff has the burden of showing that he was free from contributory negligence: and in considering that question as an issue of law, the testimony of plaintiff and his witnesses is to be taken as true and construed in the light most favorable to plaintiff.

    2. Highways and Streets — Contributory Negligence — Notice.
    It is not contributory negligence, as matter of law, to travel on a defective highway in the night, with knowledge of the danger; but having such knowledge, it is the duty of the traveler to govern himself accordingly, and to exercise such caution as an ordinarily prudent man, having like knowledge, would exercise under the same circumstances.
    3. Same — Dangerous Way.
    To adopt the more dangerous of two known ways of doing a particular thing, because it is more convenient than the safer way, is contributory negligence.
    4 Same.
    Where plaintiff was driving along a highway approaching a culvert, at which washouts had occurred, narrowing the traveled portion of the road and rendering the place highly dangerous, as plaintiff, who lived near at hand, knew very well, and he drove along the highway without getting out of his vehicle, or making use of a lighted lantern that he had with him, and was injured by falling into a washout, he was guilty of negligence, barring his recovery for the negligence of the township in suffering the highway to remain in a defective condition.
    5. Same.
    Without some proof that he did not know the exact location or nature of the defects, or, knowing them, was taking every precaution to get by them safely, or that fright of his team, storm, sickness in his family, haste to reach home, or some other distracting anxiety, or even temporary forgetfulness of the danger, diverted his attention from it, plaintiff must be held to have been negligent.

      Error to Tuscola; Beach, J.
    Submitted October 15, 1912.
    (Docket No. 64.)
    Decided April 8, 1913.
    Case by Diedrich H. Rohks against the township of Fairgrove for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial refused.

      Quinn, Wixson & Quinn, for appellant.

      H. E. Smith, for appellee.

       Contributory negligence as affecting liability of municipal corporations for defects and obstructions in streets, see note in 21 L. R. A. (N. S.) 614

   Steers, J.

This action was brought to recover damages for injuries alleged to have resulted from an accident occasioned by a defective highway in the defendant township of Fairgrove.

Plaintiff recovered a verdict and judgment in the circuit court of Tuscola county, and defendant has removed the proceedings to this court for review, chiefly upon the ground that the undisputed testimony clearly establishes, as a matter of law, that plaintiff was guilty of contributory negligence, and a verdict should therefore have been directed for defendant.

It is conceded by defendant’s counsel that plaintiff’s testimony was sufficient to clearly raise an issue for the jury upon the negligence of defendant in not maintaining the highway in question in a reasonably safe condition for travel at the point where the accident is alleged to have occurred; but, regardless of that issue, it is contended that plaintiff was perfectly familiar with the locality and its condition, and by his own testimony discloses such contributory carelessness at the time and place of the accident as to preclude recovery.

Plaintiff, a farmer, 41 years of age, is a resident of Fairgrove township, Tuscola county, where he has spent most of his life. His home at the time of the accident in question was on his farm, situated about 4£ miles east of the village of Fairgrove on a public highway extending from said village to and beyond his home. A culvert or-bridge with cement abutments and plank floor, between five and six feet wide, with no railings on the sides, crossed this highway at a point about one-half mile west of his home and four miles east of the village. It spanned a county ditch which, running along the north side of the highway from the west, crossed to the south side at that point, continuing on to the east along the south side of this highway. At the angles where the ditch turned in crossing, the water had washed out the earth, enlarging the channel so as to form what the witnesses called “holes” on each side of the road at each end of the culvert ; the one on the south side being deepest and largest. The ditch at the south end and east side of the culvert was between six and eight feet deep. This hole or washout at the southeast corner of the culvert extended from the face of the abutment into the wrought portion of the road 3 feet 9 inches, and easterly 6 or 8 feet, dropping down 18 inches from the top of the cement at the east edge of the culvert, and inclining thence to the bottom; the water being about 3 feet deep. There was also a hole at the northeast corner of the culvert which extended into the roadbed about 3 feet, but it was not as deep or as long as the one on the south. There was also a defect at the northwest corner of the culvert of less magnitude, but which had worn into the roadbed, and narrowed it so as to interfere somewhat with travel over the bridge in a straight line. The result of these conditions was to narrow the driveway as it led onto the bridge in both directions, and to throw the safe portions of the opposite approaches out of alignment. To safely drive upon the bridge from the west, it was advisable, if not actually necessary, to keep or swing to the southerly side of the approach to avoid the defect on the north side where the water had eaten into the roadway, and in going off the bridge to the east it was necessary to straighten back and curve to the north to avoid the larger hole worn into the roadway from the south, at the same time guarding against the hole at the northeast. To pass directly along the roadway the margin of safety was small; the width of the driveway between the holes at the east and west approach, had the holes been opposite each other, would have been but 7 feet. The width of the roadway between the holes at the east approach, where one driving east would leave the bridge, is stated by different witnesses at from 6 to 11 feet. The ditch running along the highway on the north side west of the culvert and on the south side east of the culvert had a varying width of from 18 to 30 feet. This condition of washout, resulting in widening the ditch and narrowing the driveway at the approaches to the culvert, had existed for some time, variously stated by witnesses at from six months to two years. Plaintiff-was very familiar with these conditions, having traveled that highway many times, both night and day “hundreds of times before,” he testifies. On the day of the accident which is the foundation of this suit, he had previously crossed the culvert, in going and coming with his team, three times.

On the night of February 25, 1911, while returning home from the village of Fairgrove, driving a team attached to a buggy, plaintiff was precipitated, with his horses and conveyance, into the enlargement in the ditch at the southeast corner of the culvert, as a result of which he alleges serious sickness ensued from the wetting and exposure then experienced. It appears from the testimony of the plaintiff that on the evening in question, between 6 and 7 o’clock, he left his home for the village to get some repairs for a feed-grinder, driving a quiet, gentle team of horses attached to an open buggy. The night was somewhat dark and foggy, and he carried with him a lantern. He left the village of Fairgrove about 9 o’clock on his return home, having lighted his lantern just after leaving the village. He used it for a time; but, finding it unsatisfactory because it dazzled his eyes, finally placed it in the back of the buggy, and did not again use it. His horses were walking, and as he approached the culvert, he knew he was in its vicinity, “about to the culvert,” but did not realize that he was right there until his team stepped on the planking. He could not see the way to go along the road, but kept watch “ good as I could,” and trusted quite a good deal to his horses to pick their way safely. They would always stop when he wanted them to, upon pulling on the lines or saying “ whoa ” to them; but, when he discovered that he was at the west side of the bridge, he did not undertake to stop the team, merely trying to pull it to the north a little. He knew there was a possibility of getting into the holes in question, but did not stop to think much about it; he had frequently passed ■over this culvert on dark nights like the one in question, and thought he would get over all right; as the team passed over the bridge, the off horse stepped into the edge of the large hole at the southeast corner, floundered ahead, ,and pulled the other horse, together with the buggy and plaintiff, over, all falling together into three feet of water at the bottom of the ditch. The near horse fell over the off horse, and the buggy went into the ditch bottom side up, with plaintiff under it. One horse lay on its side struggling and trying to get up, being entirely under water except its head; the other horse was on the edge of the ditch, raised on her front feet, turned looking towards the buggy, and trying to get out; plaintiff got from under his buggy and out of the ditch as quickly as he could, took off his coat and endeavored to get his team out, but they were so entangled and the tugs drawn so tightly he could not get them loose, and was unable to disentangle and release the horses. He therefore went to nearby neighbors for help, some 50 rods away. Returning with assistance, they loosened the horses, and got them out, plaintiff again going into the water. After his team was out he took them home, two of the neighbors accompanying him. After taking care of the horses, which were wet and cold, they went back together to get the other property left in the ditch; it being a cold night and plaintiff fearing everything would freeze in. He returned to his home again about midnight. As a result of the wetting and exposure he found himself ill the next morning, and remained so for some time, requiring the attention of a physician and nurse. He experienced a serious illness, resulting ultimately in rheumatism, from which he has not yet recovered.

The foregoing general statement of the case is condensed from the testimony of plaintiff and his witnesses. There was much conflicting testimony touching the alleged defects in the highway and as to how safe it was for travel at the place of the accident, and also relative to the nature, cause, and extent of plaintiff’s illness, but those issues would require special consideration only in case plaintiff established prima facie as a prerequisite for submitting them to the jury that he was himself exercising due care, and was guilty of no contributory negligence.

It is fundamental in all actions for injuries caused by negligence, that the burden of proof is upon the plaintiff to show, not only that the party sued was negligent, but that he did nothing to contribute to the accident, was himself exercising due care and caution, and was free from fault or contributory negligence.

In considering that question as an issue of law, the testimony of plaintiff and his witnesses is to be taken as true and construed in the light most favorable to him.

Plaintiff was not guilty of negligence in traveling the highway in question in the night, even though he knew it was defective. It is not contributory negligence not to look out for danger when none is to be expected, but when a traveler along a highway on a dark night knows he is approaching, and about to cross, a defective and dangerous place, it is his duty to govern himself accordingly and exercise such reasonable caution and care as ordinarily prudent men with like knowledge would exercise under like circumstances, in default of which his own negligence bars him from recovery.

Plaintiff lived near this culvert, had crossed it hundreds of times, and had absolute knowledge of its condition. It was familiar to him as his own dooryard; and when brought by memory into his field of eonsciousness he had a mental photograph of every defect and danger. He testified that on the night in question, had he stopped his team and alighted, he might have crossed safely, and would have had no trouble had he used his lantern; that his sight was good, and his mind was alert, and he knew the place was extremely dangerous. On those subjects he testifies, amongst other things, as follows:

“Q. Now this crossing and culvert you were entirely familiar with ?
“A. Yes.
‘Q. Did you consider it a dangerous place?
“A. Yes.
“Q. An extremely dangerous place?
“A. Yes.
To crosB?
Yes. “A.
"Q• But you had crossed over it a great many times?
“A. Yes.
How often?
“A. Oh, I can’t say.
How many times had you crossed over it that day?
“A. Three times; that was the fourth.
“Q-So that you knew all about these holes?
“A. Yes. * * *
Trusted a good deal to your horses?
“A. Yes. * * *
“Q• You didn’t realize you were at the culvert until the team got on it?
“A. No.
“Q. But you knew you were in that vicinity?
“A Yes. * * *
“Q. You didn’t undertake to stop the team when they got on the culvert ?
“A. No; I tried to pull them to one side.
“Q. To pull them to one side, but to keep on ?
“A. Yes. * * *
“Q. Of course, if you had had a light at the head of the horses, you could have got across all right ?
“A. I think so. * * *
“Q. You thought you could make the crossing, and that the horses would pick their way across ?
“A. I thought I could cross; in fact, I don’t know as I thought very much about it. I had been in the habit of going that way and thought I was going to make it all right.
l‘Q. You knew if the horses didn’t keep in the road there was a possibility or a chance of their getting into these holes that you speak of, didn’t you ?
“A. Yes.
“Q. You thought you would take a chance in getting over ?
“A. I don’t know as I thought anything about a chance.
l‘Q. Asa matter of fact, you did take a chance ?
“A. Yes; under the circumstances. * * *
“Q. You knew that you absolutely could make that point secure if you got out and led your horses across, you could have got across safely ?
“A. Yes; if I had used the lantern, I could have led them across there.
“Q. All right?
“A. Yes.”

While it is true that knowledge of danger, though always an important element, does not necessarily preclude recovery and even temporary forgetfulness of known danger has been held not to be negligence per se, the claim of temporary forgetfulness predicated on plaintiff’s statements, “ I don’t know as I thought much about it,” and “ I don’t know as I thought anything about a chance,” cannot be sustained against his positive testimony as to what he did think and did do or not do.

He testified his mind was alert and his sight was good. As his “perfectly quiet” horses, under perfect control, walked along the familiar highway, he kept as good watch as he could, he knew he was in the vicinity of, and “ about to the culvert,” which he considered an extremely dangerous place. Though he did not realize he was right there until his horses stepped on the planking at the west approach, he did then realize, and know, just where he was. With his familiar knowledge of the situation he mentally saw the holes across the bridge and all the extremely dangerous conditions of which he testifies, as plainly as though it had been daylight, and he knew the perils which were about to be encountered just ahead and after he crossed the bridge. He knew, if his statement and that of his witnesses is true, that to pass safely he must curve to the left on leaving the bridge in order to miss the hole into which he fell at the southeast corner, and must drive on a high, narrow roadway, only about six feet wide, between the holes, a failure to avoid either of which meant disaster. He had a lantern which he had previously lighted, sitting in the back of the buggy, though he states he cannot say whether it was then burning, and, with no proof of storm, anxiety to get home, fright of his horses, haste, or other occasion for anxiety, except the defects in the highway, he was in perfect control of a quiet team, then walking, which would stop when he pulled on the lines or said “whoa” to them, yet he “tried” to pull his horses “to the north a little” and kept right on, endeavoring in the dark to drive by a necessary curve onto and along this narrow way, as one blindfolded, when, according to his own testimony, he had it within his power and easily available to make the passage in safety. Under those circumstances he says he took a chance, thinking he was going to make it all right.

Where there are two known ways of doing a particular thing, one safer than the other, to adopt the more dangerous one because more convenient, and thus voluntarily increase the hazard, is contributory negligence in case of .accident.

Certain of the language found in the case of Conrad v. Upper Augusta Township, 200 Pa. 337 (49 Atl. 770), can well be applied to the undisputed facts in this case. There the plaintiff was driving in the darkness of early morning, along a highway, with which he was familiar, running through a hilly country. He had attached a lighted lantern to the front of his wagon to enable him to see the highway ahead. When he reached the summit of .a hill approaching a portion of the road flanked by an embankment the light in his lantern went out. Instead of relighting it, he allowed his team to continue, and, failing to keep the beaten track, then went too close to the edge and over the embankment. The court held he was so well acquainted with the road that he must have known he was approaching that portion of the way which, owing to the embankment, was dangerous. Amongst other things it is said:

“The plaintiff was traveling quietly along the road, just before the accident. It was so dark that prudence had suggested to him the necessity for a light. For some reason, the light went out. Obviously, the prudent thing for him to have done would have been, to stop immediately, and relight the lantern. As he did not choose to do so, and, knowing the road as he did, he must be presumed to have taken the risk of his horses going over the embankment and falling down the slope.”

Were it shown in this case, or could it be claimed from the testimony, that plaintiff, even though he knew the highway was defective, did not know the exact location and nature of the defects, or that, knowing them, he was taking precautions accordingly and doing all he could to get safely by, or that fright of his team, storm, sickness in his family, and haste to get home, or any other distracting anxiety occupied his thoughts and diverted his attention, or even that he temporarily forgot that there were defects in the road, this question would fall within that numerous class of cases where contributory negligence is an issue of fact for the jury; but this case is of that class where a defect, the full nature of which was well known to the plaintiff, was in his mind at the very time of the injury, and could have been avoided by due care. This distinction is clearly pointed out by Chief Justice Montgomery in the case of Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075). Referring to certain cases there cited, the court said that in each of those cases in which plaintiff was held guilty of negligence, as a matter of law, “the defect was in the mind of the plaintiff at the very time of the injury.” In the case of Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), which was one of the cases referred to, it was said:

“If this had been a defect of which the plaintiff merely had had previous knowledge, and which knowledge was not in her mind at the time, or if her attention had been diverted from the obstruction, there would be ground for the plaintiff to stand upon.”

Plaintiff’s own evidence shows conclusively that he was taking a chance for convenience, rather than go to the trouble of taking the precautions which he states would have insured a safe passage by the defects, and was not exercising that degree of care which a reasonably careful and prudent man should and would ordinarily exercise, with like knowledge, under like circumstances, pointing irresistibly to the conclusion that his own negligence contributed to the accident of which he complains.

With the burden of proof resting upon plaintiff to show, before he can recover, that he himself did nothing to contribute to the accident, and is himself free from negligence, he has not only failed to establish the same prima facie, but rather has made proof to the contrary.

We are therefore constrained to hold that the judgment must be reversed, and no new trial ordered.

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


author: Per Curiam.

text:
    LEVITAN v. HOUGHTON NATIONAL BANK.
    Banks and Banking — Equity Jurisdiction — National Banks— Venue.
    Under Act of Congress July 12, 1882, chap. 290, 22 U. S. Stat. 162, section 4, a bill of complaint may be filed in Washtenaw county, where complainant resides, against a national bank of the county of Houghton. The act of 1882 providing that-jurisdiction should be the same as in aotions against other than national banks was not superseded or repealed by 24 U. S. Stat. 554, as amended by act of August 13, 1888, 25 U. S. Stat. 436 (U. S. Comp. Stat. 1901, p. 514). Nor does the former statute refer only to the jurisdiction of Federal courts it applies to actions instituted in the courts of the State in. which the defendant is a resident.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 9, 1912.
    (Docket No. 14.)
    Decided April 8, 1913.
    Bill by Rae Levitan against the Houghton National Bank. Defendant filed a plea to the jurisdiction, which the court sustained, dismissing the bill. Complainant, appeals.
    Reversed.

      Arthur F. Fixél and Max Finkelston (Bernard B. Selling, of counsel), for complainant.

      Allen F. Bees, for defendant.
   Per Curiam.

A bill of complaint was filed against the defendant in the circuit court for the county of Washtenaw, which is the home of the complainant. The defendant is a national bank organized under the laws of the. United States and is located in the county of Houghton in this State, where it conducts its business.

Upon the filing of the bill of complaint, the defendant filed a plea to the jurisdiction, upon the ground that a State court could not entertain jurisdiction in a proceeding or suit against a national bank, except in the county or city in which the association is located. This plea was sustained, and, in accordance with the rule, the bill of complaint was dismissed, and this appeal is from the order so made.

At present the sole question before the court is as to the jurisdiction of the circuit court for the county of Washtenaw. The complainant claims jurisdiction for the circuit, court of Washtenaw county under the provisions of section 434, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 11951). The defendant’s position is based upon the Federal legislation with respect to national banks.

The statutes bearing upon the controversy are as follows:

“(434) Sec. 22. Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local, and if it is not local, in the county where one of the parties in interest resides, if either is a resident of the State.” etc. 1 Comp. Laws, § 434.

Section 5198 of the Revised Statutes of the United States, found in the United States Compiled Statutes of 1901, vol. 3, p. 3493, provides as follows:

“ The taking, receiving, reserving or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same; provided such action is commenced within two years from the time the usurious transaction occurred. That suits, actions, and proceedings against any association under this title may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located having jurisdiction in similiar cases.” Act February 18, 1875, chap. 80, 18 U. S. Stat. 320.

In 1882 Congress passed “An act to enable national banking associations to extend their corporate existence and for other purposes.” Act July 12, 1882, chap. 290, 22 U. S. Stat. 162 (U. S. Comp. Stat. 1901, pp. 3457-3460). Section 4 of that act reads as follows:

“ Sec. 4. That any association so extending the period of its succession shall continue to enjoy all the rights and privileges and immunities granted and shall continue to be subject to all the duties, liabilities and restrictions imposed by the Revised Statutes of the United States and other acts having reference to national banking associations, and it shall continue to be in all respects the identical association it was before the extension of its period of succession: Provided, however, that the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking association may be doing business when such suits may be begun; and all laws and parts of laws of the United States inconsistent with this proviso be, and the same are hereby, repealed.”

It is upon this act that complainant bases her right to maintain this proceeding.

In 1887 Congress passed an act entitled:

“ An act to amend the act of Congress approved March third, eighteen hundred and seventy-five, entitled ‘An act to determine the jurisdiction of circuit courts of the United States and to regulate the removal of causes from State courts, and for other purposes, and to further regulate the jurisdiction of circuit courts of the United States and for other purposes.”

This act is known as the act of March 3, 1887. Certain corrections in the act of March 3, 1887, were made by the act of August 13, 1888. Section 4 of this act reads as follows:

“Sec. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.” Act March 3, 1887, chap. 373, § 4, 24 U. S. Stat. 554, amended by Act Aug. 13, 1888, chap. 866, 25 U. S. Stat. 436 (U. S. Comp. Stat. 1901, p. 514).

The questions involved are:

(1) Is the act of 1882, above referred to, providing “that the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States or its officers and agents, shall be the same as and not other than the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking association may be doing business when such suits may be begun, and all laws and parts of laws of the United States inconsistent with this provision be and they are hereby repealed,” still in force ?

(2) Does the act of 1882 mean that the complainant residing in Ann Arbor may maintain a chancery proceeding in the Washtenaw circuit court, in chancery, against the Houghton National Bank (over its objection to the jurisdiction), just as she could if the defendant were a Houghton county State bank ? The complainant answers both of these questions in the affirmative.

After the enactment of the national banking act of 1864, the courts were not agreed whether State courts had jurisdiction in suits against national banks where the suit was started in a county other than the one where the bank was located.

It is the claim of complainant that, to do away with this uncertainty, section 4 of the act of July 12, 1882, was enacted, and that its provisions are still in force. It is the claim of defendant, and we cannot do better than quote from his brief:

“There are two reasons for the statement that the contention of the complainant cannot be sustained:
“ (1) The proviso of the act of July 12, 1882, is no longer in force and has not been in force since the act of 1887, which superseded it.
“(2) The proviso of the act of July 12, 1882, did not repeal or in any manner affect the provisions of section 5198, Revised Statutes, relating to the venue of actions against National Banks.
“The act of July 12, 1882, constituted an amendment of certain sections of the national banking act, and did not constitute a revision of the national banking laws, as stated by complainant on page 6. The title of the act was ‘ To enable national banking associations to extend their corporate existence and for other purposes,’ and in section 4 of the act, which related to the extension of corporate existence, there was added the proviso in question in the following words:
“‘Provided, however, that the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking association may be doing business when such suits may be begun; and all laws and parts of laws of the United States inconsistent with this proviso, be and the same are hereby repealed.’
“We have stated above that this proviso has been superseded by later legislation and is no longer in force. On the contrary, section 5198 of the Revised Statutes has been deemed to have remained in force, is included in present editions of the Revised Statutes, and, as stated at page 6 of complainant’s brief, is now included in the United States Compiled Statutes of 1901, vol. 3, p. 3493, where the section is set out in full, including the proviso with relation to the venue of suits. But the act of July 12, 1882, so far as concerns the proviso in question, is not included in the later editions of the Revised Statutes, because it has been superseded and is no longer in force. Thus in the Annotated Federal Statutes published in 1905, section 5198 is included as in force, volume 5, p. 196.
“ With regard to the proviso of 1882, the same work, at page 193, includes as in force section 4 of the act of August 13, 1888, and says, ‘ This section supersedes the following sections of the Revised Statutes,’ and then quotes section 563 of the judiciary act of 1864 and section 629 of the same act which provided that district and circuit courts of the United States shall have jurisdiction of suits by or against national banking associations, and the text also says, ‘ The section in the text also superseded the closing paragraph of section 4 of the act of July 12,1882.’ It thus appears in this compilation that the proviso of section 4 of the act of 1882 has been superseded and is no longer in force and has not been in force since the act of August 13, 1888.
“ It is also true that section 4 of the act of 1882 is not included in other recent editions of the Revised Statutes of the United States, nor, we believe, in the United States Compiled Statutes of 1901, again showing that it is not deemed to be in force and has been superseded, whereas section 5198 is published as one of the acts of the United States still in force.
“The proviso of 1882, which has thus been superseded, is as above set out, and it was superseded by the provisions of the act of March 3, 1887, re-enacted in the act of August 13, 1888, and now in force as follows:
“'That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be •deemed citizens of the States in which they are respectively located ; and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State. The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.’
“ The authorities hereinafter cited clearly indicate that the proviso of the act of July 12, 1882, has thus been superseded and is no longer existent as in force for any purpose whatsoever. If it has been superseded by the later provision of 1888, then section 5198 is in force and is a bar to the maintenance of the pending suit in the circuit court for the county of Washtenaw.”

It is true, as stated by counsel, that in the Annotated Federal Statutes of 1905, published by Edward Thompson Company, the note says that the proviso in section 4 of the act of 1882 has been superseded. That annotation, however, does quote part of section 4 of act of 1882, at page 91, down to the words “provided, however,” when the balance of the section is filled in with asterisks and a reference is made to page 194. It is evident that the only authority the editor had for doing this is to be found in the construction he put upon section 4 of the act of August 13, 1888. The solicitor for the defendant is mistaken in saying “that section 4 of the act of 1882 is not included in other recent editions of the Revised Statutes of the United States, nor we believe in the United States Compiled Statutes of 1901.” As already appears in this opinion, this section does appear in full at page 3458 in volume 3, Revised Statutes of 1901, published by the West Publishing Company, and which publication states upon the title' page that it embraces the statutes of the United States of a general and permanent nature in force March 1, 1901. The 1911 supplement to the 1901 United States Compiled Statutes, purporting to bring the statutes of a general and permanent nature down to August 22, 1911, at page 1514 says:

“Act July 12, 1882, c. 290, mentioned in this act is set forth in Comp. St. 1901, p. 3457.”

There is not a suggestion in this compilation that section 4, act of 1882, is not still in force. We think the act shows a disposition upon the part of Congress to enlarge the jurisdiction of all State courts so that national banks could sue and be sued wherever State banks similarly located could. The language of the act clearly indicates its purpose to place State and national banks similarly located in the same position as regards jurisdiction and locality for suits against them. In the absence of words of repeal in the act of August 13, 1888, we do not think it should be said that there is a repeal by implication, but that each section of the statute was passed to take care of a contingency that was not covered by the other sections.

The solicitor for defendant contends that, even though section 4 of the act of 1882 has not been superseded, it applies to Federal courts. We again quote from the brief:

“The fact that the act of 1888, which undeniably has reference only to the jurisdiction of the Federal courts, has been held to have superseded the act of 1882, which, since 1888, has not been in force, is also a clear indication that the act of 1882, like the act of 1888, must have had reference only to the jurisdiction of the Federal courts; but the act of 1882, if applied to Federal courts only, did not in any manner interfere with the provisions of section 5198, specifying the Federal courts in which actions must be brought. It continued to be, and is now, the law that suits against national banks must be brought in the Federal court held within the district in which the bank is situated. To the same extent, if it is considered that the act of 1882 had any reference to State courts (which we submit it did not under the decisions of the Supreme Court of the United States), it is true that the fixing by that act of the limits of the jurisdiction of courts did not in any manner affect the provisions with relation to the particular courts in which actions should be brought. The act of 1882 constituted an additional limitation upon the jurisdiction of courts and not an enlargement of jurisdiction. As stated in the above citations, it was intended by Congress as a limitation upon jurisdiction, and further it was intended as a limitation upon the jurisdiction of Federal courts.”

We think a careful reading of the section itself does not harmonize with this view of counsel. There is a reference made to this statute by Justice Harlan in First Nat. Bank of Charlotte v. Morgan, 132 U. S. 141 (10 Sup. Ct. 37), which was a suit brought, before the act of 1882 took effect, in a State court other than the county where the bank was located. In that case it was held that, by going to trial upon the merits, the bank had waived the question of jurisdiction. The court then said:

“It is proper to say that we lay no stress upon the proviso of the fourth section of the act of July 12, 1882, entitled ‘ An act to enable national banking associations to extend their corporate existence, and for other purposes.’ 22 Stat. 162-168, c. 290, § 4. That proviso refers only to suits by or against national banking associations, brought after the passage of that act. The present suit was commenced before that date.”

This is a pretty clear intimation that the learned justice thought the section referred to State courts.

There is also a reference to the statute by Justice Holmes in Freeman Manfg. Co v. National Bank, 160 Mass. 398 (35 N. E. 865), in which the following language is used:

“Then a proviso in U. S. St. July 12, 1882, § 4, enacts that ‘ the jurisdiction for suits’ by or against the banks, with certain exceptions not material, ‘shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States which do or might do banking business where such national banking associations may be doing business when such suits may be begun,’ and repeals inconsistent laws.
“ It is true that one result of this act is to put an end to the special jurisdiction of the United States courts over national banks, and thus to end the power of citizens of the same State as the bank to get an injunction anywhere, while it leaves that power to citizens of another State, who have a right to sue in the circuit court by virtue of their citizenship. Pacific Nat. Bank v. Mixter, 124 U. S. 721, 727 [8 Sup. Ct. 718]; Petri v. National Bank, 142 U. S. 644, 649 [12 Sup. Ct. 325]. But this accidental advantage is not sufficient ground to affect our construction of the act. Obviously the purpose of the law is to limit the jurisdiction of the United States courts and to do away with the limitations of venue imposed by the earlier statutes on the State courts. Petri v. National Bank, 142 U. S. 644, 648, 649 [12 Sup. Ct. 325]. By the earlier acts, suits might be begun ‘ in any State, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases.’ U. S. St. June 3, 1864, c. 106, § 57 (13 U. S. Sts. at Large, 116, 117); U. S. St. February 18, 1875 (18 U. S. Sts. at Large, 320). We are of opinion that the language denotes merely what courts shall have power to entertain suits by or against national banks, and that the phrase as to jurisdiction does not repeal the prohibition of preliminary injunctions in U. S. Rev. Sts. § 5242.”

It is true neither of these cases is controlling, but the views of these two able jurists are illuminating upon the meaning of the language. We think the learned trial judge reached a wrong conclusion and that he should have taken jurisdiction and tried the case.

The decree is reversed, with costs to appellant.