text:
    ROUSE v. BLAIR.
    1. Appeal and Error — Law oe Case — Former Appeals — Res Judicata.
    The determination on a former appeal that the evidence made a question for the jury is the law of the case on a subsequent trial where the testimony is substantially the same as on the first trial.
    2. Same.
    In an action for damages for personal injuries sustained in a collision between plaintiff's automobile and defendant’s train at a crossing, the testimony was substantially the same as that presented on the first trial so as to render the determination on a former appeal that the evidence made a question for the jury the law of the case on the second trial, where the defendant offered no evidence on the first trial and called a large numbei of witnesses to establish its defense on the second trial and their testimony, if believed, would have warranted a judgment for defendant, but it related to questions within the realm of fact.
    Error to Berrien; North, J., presiding.
    Submitted June 13, 1917.
    (Docket No. 39.)
    Decided September 27, 1917.
    Rehearing denied December 28, 1917.
    Case by Elmer E. Rouse against Frank W. Blair and others, receivers of the Pere Marquette Railroad Company for personal injuries to himself, his wife, and child. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Parker, Shields & Brown (Gore & Harvey, of counsel), for appellants.

      Cady & Andrews (Thomas J. Cavanaugh, of counsel), for appellee.
   Moore, J.

This is the second appearance of this case in this court. Upon the first trial in the circuit court, after the plaintiff had put in his proofs, the judge directed a verdict in favor of the defendant. The case was brought to this court for review. Rouse v. Blair, 185 Mich. 632 (152 N. W. 204). A majority of the court were of the opinion that a directed verdict was error, and that plaintiff presented a case for the consideration of a jury. Upon the second trial in the circuit court after the plaintiff had closed his case defendant moved a directed verdict, which motion was overruled. The defendant then called upwards of 20 witnesses in its defense. At the conclusion of all the testimony a motion was again made by the defendant for a directed verdict. This motion was overruled, and the case was submitted to the jury in a charge, which covers nearly 14 pages of the printed record. After a few minutes the jury was recalled, and the record shows the following:

“The Court: I am very sorry to have had to disturb you in your deliberations, but after you had gone ' to your room I discovered upon checking up my notes that inadvertently I had overlooked one of the requests to charge, which I think is essential that it should be given to you in order that the charge, as a whole, may cover the law. You will remember that I said to you during the course of the charge that if you believed from the evidence that defendant’s employees did not give the customary signals, and were negligent in running the train backward, at a high rate of speed, across the highway, and that this was the proximate cause of the injury, and the plaintiff did under the circumstances all that a reasonably prudent man would have done, and the injury would not have occurred had the defendant’s employees been lawfully operating the train, then the plaintiff is entitled to recover.
“Now, I want to add to that this which I overlooked :
“ ‘The defendant company had a right to hack its train across ■ the highway crossing, hut in so operating the train, defendant’s employees were hound to he mindful of the manner and the place of operating the train, and to exercise care commensurate with the extra danger, if any, to persons and property in the highway.’
“You will probably recall the charge went on as follows:
“ ‘But if you And that the whistle was blown and the bell rung, and there were men as lookouts on the flat car, or leading car, so called, as the train approached the crossing, and that the train was running at a reasonable speed under all circumstances, and that the train was properly managed by the train crew, then I charge you no negligence has been shown, and it will be your duty to render a verdict of “not guilty.” ’
“I think you will recall that comes between two portions of the charge.”

The jury returned a verdict in favor of the plaintiff for $7,500. The defendants then made a motion for a new trial, alleging 18 reasons. In overruling this motion the judge expressed himself as follows:

“The matter is now before the court on the defendants’ motion for new trial. Various reasons are assigned in support of this motion, but the two which are principally relied upon in the presentation of this matter are:
“(1) That the verdict is clearly against the weight of the evidence; and
“(2) The approximate cause of the Injury was the negligence of the plaintiff, and therefore the court should have directed in favor of the defendants.
“This case was tried once before in the circuit court, and upon review in the Supreme Court it was held that the question' of the plaintiff’s contributory negligence was a question of fact which should have been submitted to the jury. I have had the assistance of somewhat lengthy arguments by counsel for the respective parties in an effort to ascertain whether or not there is any material variance between the records made at the second trial of this case and that made at the former trial so far as this phase of the litigation is concerned. I have also made a somewhat extensive investigation from the records furnished me by counsel of the showing made as to this question at the respective trials. While it is true that the testimony was concluded at-the first trial at the close of the plaintiff’s case, and..without the defendants offering their testimony, still I am of the opinion that there is not such a difference in the testimony found in the two records which is material and relevant to the plaintiff’s contributory negligence as would justify the trial court in disregarding the former ruling of the Supreme Court to the effect that this is a question of fact to be submitted to the jury.
“I do not think it can be said as a matter of law that the amount of damages awarded is excessive, or that the verdict is contrary to the weight of the testimony in the case.”

The case is brought here by writ of error.

The assignments of error are substantially the same as the reasons presented to the trial judge on the motion for a new trial. Upon the oral argument the assignments most dwelt upon were: (1) That the plaintiff’s testimony in this record conclusively shows him to have been guilty of contributory negligence; (2) that no negligence on the part of the defendants was proven; (B) the weight of' the evidence was so clearly in favor of the defendant that it was the duty of the trial court to so direct. The other assignments, were not waived..

When the case was in this court before, Justice Stone, writing for a majority of the court, stated the claims of the parties with considerable detail. A reading of his opinion will make it unnecessary to write so long an opinion now as might otherwise be necessary.

It has been repeatedly held that the determination on a former appeal that the evidence made a question for the jury was the law of the case on a subsequent trial where the testimony was substantially the same as on the first trial. See Foley v. Railway Co., 193 Mich. 233 (159 N. W. 506); City of Sault Ste. Marie v. Railway Co., 192 Mich. 65 (158 N. W. 164); Johnson v. Surety Co., 194 Mich. 292 (160 N. W. 548); In re Foerster’s Estate, 193 Mich. 440 (160 N. W. 459).

To meet the above counsel insist this record is different from the former one. We quote from the brief:

“We direct attention (1) to the material difference in the plaintiff’s case upon this record from the plaintiff’s case upon the former record, upon which the above decision was based; and (2) that this is the first time the testimony of the defendants’ witnesses has been before this court. * * * First, then, of the difference in material facts between the plaintiff’s proof upon this record and the former one:
(a) The former record contained not one word to the effect that Mrs. Rouse, in explaining their conduct in getting in front of the moving train, stated in the presence of Norman E. Main, plaintiff’s witness, that she ‘saw smoke,’ but she ‘thought it came from an engine attached to cars upon the switch track.’ This testimony is not only material; it is controlling. * * *
“(6) The former record failed to show such negligence on plaintiff’s part as may be fairly deduced from the testimony of plaintiff’s witness Henninger, who swears that as Rouse approached the crossing he saw two men, waving their arms and hallooing to Rouse to apprise him of the approach of the train and to stop his car.”

Mrs. Rouse testified on her direct examination:

“Q. Did you attempt to look to the south?
“A. I watched; as we were coming along I watched over the cars that were there, watched for any possible show of smoke that might be a train coming that way.
“Q. Did you see any smoke there?
“A. No, sir.”

On her cross-examination she testified that she had no recollection of saying anything in the presence of Mr. Main about smoke, and that she could not have said she saw smoke, for she did not see any. It is not claimed that Mr. Rouse said he saw smoke.

In the cross-examination of Mr. Henninger the following appears:

“I know F. L. Ackerman. I didn’t see him there that day. I did not see him holding his hands up and waving at Rouse. I heard a number hallooing to Rouse to stop. I didn’t call to him myself. He didn’t seem to stop. I saw two or three people at the railroad track signaling Rouse to stop. They were waving their hands for him to stay back. I know where the railroad crossing sign is there between the scales and the railroad track. That is within 30 or 35 feet of the track. He (Rouse) was about in there when those men were waving at him. He didn’t stop. I don’t know how fast he was going.
“Q. You would know whether he was moving along 18 miles an hour or 4 miles an hour? Wouldn’t you?
“A. Well, I don’t know.
“Q. It appeared to you if he had seen those men that he had plenty of time to stop?
“A. Maybe he was so close he couldn’t stop, something or other.
“Q. As it appeared to you?
“A. I didn’t any more than see the auto and the collision took place.”

Mr. Rouse testified on cross-examination:

“On the morning of the 19th, as I approached that crossing, I did not see some men holding up their hands and waving at me to stop.
“Q. What were you looking at?
“A. I saw no one except after I had seen the train, a man I believe is the station agent; he was waving his hands to stop when I had seen my danger and was endeavoring at that time to stop. I did not see a large man there near the track with both hands raised. I think I would if he had been there, but I did not see anybody. I was not in the least asleep that morning.”

Counsel are so insistent in their briefs, and were in the oral argument, that a different case is’presented now than was presented before, that we have gone over this long record with great care. We are quite convinced the case presented on the part of the plaintiff is substantially the same that was. presented on the first trial. It is true that upon the second trial defendant called a large number of witnesses to establish its defense. Their testimony, if believed by the jury, would have made a defense, but it related to questions, well within the realm of fact. Some of the testimony of some of the witnesses offered by the defendant must have afforded comfort to the attorneys for the plaintiff.

Much of the testimony was conflicting. The case was ably tried by zealous and capable counsel before a painstaking and careful judge, who endeavored to, and did, protect the rights of the respective parties.

Judgment is affirmed.

Kühn, C. J., and Stone, Ostrander, and Bird, JJ., concurred with Moore, J.

Brooke, J. The law of the case having been settled by the former opinion, I concur in the result.

Steere and Fellows, JJ., concurred with Brooke, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WILCOX v. JENISON.
    1. Boundaries — Documentary Evidence — Records of Surveys— Admissibility in Evidence.
    Surveys of State, but not Territorial, surveyors, are admissible in evidence under Act No. 196, Pub. Acts 1915, § 102 (1 Comp. Laws 1915, § 2486), providing that “records of surveys, field notes, and calculations made by any former county surveyor which has been, or shall be, on file in the office of the county surveyor, register of deeds or county clerk for a period of fifteen years or upward * * * shall be admissible in evidence of the facts they contain in any court of record.”

      2. Same.
    Records of surveys and other papers that have heen subject of statutory regulation are not admissible as ancient records.
    3. Evidence — Records of Surveys — Admissibility.
    Under Rev. Stat. 1846, chap, xiv, §§ 96, 97, 102, providing that certain records of surveys made by the county surveyors since the organization of the State government may be received in evidence, records of surveys are not competent evidence unless made by county surveyors.
    4. Same — Surveyors—Mistakes—Declarations of Deceased Surveyor — Admissibility.
    Declarations by a surveyor, since deceased, to his employer that he had made a mistake in a former survey are admissible where such mistake was discovered during the course of the second survey, but it is not apparent whether the surveyor made the declaration in the course of such second survey.
    5. Appeal and Error — Instructions—Chakge as Whole.
    Where the charge of the court, taken as a whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute reversible error.
    6. Adverse Possession — Boundaries—Instructions — Ejectment —Government Surveys — Burden of Proof.
    In an action of ejectment, in which the boundary line between two tracts of land was in dispute, the charge dealing with the manner of making government surveys and their conclusiveness, the establishment of boundary lines by adverse possession, and the burden of proof, held, to be sufficient.
    Error to Oakland; Smith, J.
    Submitted June 18, 1917.
    (Docket No. 64.)
    Decided September 27, 1917.
    Ejectment by Mary M. Wilcox against Eugene A. Jenison. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Merriam, Yerkes & Simons and John H. Patterson (Lewis H. Paddock, of counsel), for appellant.

      Peter B. Bromley and Felton & McGee, for appellee.
   Moore, J.

Ejectment was brought by plaintiff against defendant to recover possession of approximately 16 acres of land which she claims is located in the northwest quarter of section 27, and northeast quarter of section 28, Royal Oak township, Oakland county. Defendant’s claim is that the land in question is located in the southeast quarter of 28, and the southwest quarter of 27, so that the important question in dispute is as to the location of the east and west quarter line of sections 27 and 28. In the opening of his charge to the jury the trial court stated somewhat in detail the claims of the parties to the litigation, and, after doing so, turning to counsel, he said:

“Do you think of anything, further I need to say without going into details ?
“Mr. Bromley: No, your Honor.
•“Mr. Patterson: No, sir.”

He then read to the jury a great many written requests which had been preferred by counsel. Among them the following:

“On the part of the plaintiff I charge you as follows: It is the claim of the plaintiff in this case that her husband procured the premises in question under a land contract in January, 1889. And that in May, 1889, the plaintiff went .into possession of the premises and remained in possession of the premises from May, 1889, until the disputed strip was fenced in by the defendant, Jenison, in March, 1903. There is no dispute but that the description of the deeds to the plaintiff recite that the southern boundary of their lands should be the quarter section line. In other words, it is undisputed that the deeds themselves recite that the premises in the northeast quarter of section 28 and also that portion of the northwest quarter of section 27 lying west of Woodward avenue should belong to the plaintiff. It is also undisputed that the defendant’s land, according to the description contained in his deed (or deeds it should be), should lie immediately south of plaintiff’s land. The question therefore for you to determine is Where is the true quarter section line?’ ' It is the claim of the plaintiff that the true quarter section line is a straight line approximately equidistant from the north and south boundary line of the section.
“(8) I further charge you that the government lands are required by the United States government to be surveyed into sections one mile square. The government surveyors are required in making such surveys to place monuments at the corners.of the sections and also on the four sides of the sections halfway between the corners. These latter are called quarter posts, being half a mile from the north and south lines of the section and dividing it into quarter sections of equal size. The lines between the quarter posts are not run by the government surveyors, but are found by extending a straight line from one quarter post to that on the opposite side of the section. I further charge you that when a boundary line between adjoining proprietors is disputed, the true line is to be determined in accordance with the original government survey, unless fixed by agreement, acquiescence, or adverse possession. I further charge you that as between surveys the original government survey must control, although it may have been incorrect at the time it was made.
“(9) I further charge you that it is the duty of the surveyor to follow monuments as called for in the original government field notes; and if they find a quarter section corner extinct, that is lost, and are unable to determine its original location from the field notes and plats of the government surveyor, then it is their duty to re-establish it equidistant, that is equal distance and in a straight line between the section corners.
“It should be quarter section corner shouldn’t it?
“(10) It is the claim of the plaintiff that the original government survey marked the quarter section corners of sections 27 and 28 at the point designated at the Wilmarth corner; that the original government field notes call for a birch tree at that point. It is the claim of the plaintiff that the evidence of the birch tree was found and seen by Surveyor Wilmarth and by Mr. Wilcox and by Mr. Thomas Tracey, the chainman. If you are satisfied by a fair preponderance of evidence that the government survey called for a birch tree at the disputed quarter section corner, and if you further find by a fair preponderance of the evidence .that there had been a birch tree at about the quarter section .corner as claimed by the plaintiff, and that the said birch tree was a monument marked under the original government survey as the quarter section comer, then I charge you you have the right to consider that corner indicated by a birch tree in the original survey as the true quarter section line between sections 27 and 28, and in that event your verdict should be for the plaintiff, unless it is settled by the other proposition in this case.
“(11) I charge you that it is a well-settled law in this State that surveyors making surveys after the original government survey is made cannot make monuments of their own which shall control the government surveyors’ measure, and that the original government survey must always control, and the effort of the surveyor should be to find, if possible, where the lines are on the ground; the original survey must control as between the surveys, I mean, although it may have been incorrect at the time'it was made. If you find, therefore, that the Wilmarth survey was based upon the government survey and the government field notes, and if you find that the line located by Mr. Wilmarth is on the line located by the original government survey, then you should treat the line as established by Mr. Wilmarth to be the true line, and your verdict should be for the plaintiff, and I add, unless the line between these parties has been settled by agreement, acquiescence, or adverse possession; that is, by the second proposition in the case.
“(12) The defendants have been permitted to offer in evidence some records of field notes and plats purported to be made by Surveyors Russell and Serrell, but I say to you that unless you are satisfied from the evidence that such surveys were based upon the original government field notes, and that they were made in accordance with the monuments as called for in the original government survey, or the original govemment field notes, then I charge you that such survey should not prevail as against the Wilmarth survey, provided (notice) provided you find the Wilmarth was made in accordance with and based upon the field notes of the United States government as offered in evidence by the plaintiff; in other words, unless you find that the Wilmarth survey coincides with the original government line. * * *
“(19) It is the defendant’s claim that he received the property by. deed in 1897, but that no fence was built around the premises until 1903. It is the claim of the plaintiff that the defendant never actually occupied the land and never claimed to own the disputed ■strip in question until on qr about the time he put the fence around the disputed land, which was in 1903. Now in order for the defendant to avail himself of title by adverse possession, which would apply to both parties by means of the fence he built in 1903, such possession under the statute must be open, notorious, continuous, exclusive, visible, and distinct, as well as adverse, and such possession must have been for a period of 15 years prior to the starting of this suit. * * *
“(22) I further charge you that the United States statute requires that the government surveyors, that is, men surveying government lands, to set the quarter section posts at equidistance from the north and south lines of the sections, and that the quarter section lines shall run through the middle line of the said sections; and it is the duty of the government surveyor to make his survey and set the .quarter section posts in this manner, and he is presumed to have done his duty and to have placed these lines and posts as the law requires him to do.
“(23) The burden therefore is upon the party who claims the government surveyor made a mistake in his survey to show that the government surveyor did commit the blunder as claimed and failed to do his duty, and unless the defendant has shown that the government surveyor did make a mistake, and that the Wilmarth line is incorrect, then on this branch of the case, you must find for the plaintiff. * * *
“ (30) Taking up now gentlemen, the claims of the defendant, I charge you as follows: The United States government in its original survey fixed section corners- and quarter posts. The division of the section was afterwards done by surveyors and points established thereon from the original corners and quarter posts thereon, and if the government surveys had all been accurate and in accordance with the rules laid down for the guidance of the surveyor there would commonly be no difficulty in locating the government subdivisions with reasonable certainty even if the monuments had disappeared. But government surveyors were not always accurate in their work, and monuments do sometimes disappear. That a fence of long standing erected upon what the parties have called the true line and up to which they have improved and cultivated is better evidence of the true line than a survey made after the monuments had disappeared and not while they were in existence.
“ (31) It is the claim of the defendant that the north boundary of def endant’s land is the east and west quarter line running through a part of sections 27 and 28 in the township of Royal Oak, and is the line indicated in red on the map received in evidence and designated as plaintiff’s Exhibit No. 3, and that this line does not run due east and west in a straight line, and has been referred to in this case by defendant’s counsel as the ‘true quarter line,’ while the plaintiff claims that the quarter line is the line referred to as the ‘Wilmarth line,’ and if the jury find by a preponderance of the testimony in the case that the quarter line is substantially along the line as contended for by defendant as the true quarter line, then the plaintiff cannot recover, and your verdict would be for the defendant. I add the same as I did to the plaintiff’s requests, unless the boundary line has been settled under the second proposition by means of adverse possession.
“(32) I further charge you that it is the claim of the defendant that this so-called ‘true quarter line’ was marked by an old fence substantially along such true quarter line, and that such fence constituted a boundary line between the lands of adjacent owners for more than 15 years. Now if you find from a fair preponderance of the testimony that such old fence did exist and was acquiesced in as a boundary line, then the plaintiff cannot recover, and your verdict would be for the defendant.
“ (33) I further charge you that in determining the true boundary line between the parties to this suit, you may consider the testimony with respect to any old fences between the disputed strip of land, and if you find from the testimony that an old fence for 15 years continuously or more ran along the north edge of the wood lot in dispute, and that such fence constituted the boundary line between the disputed strip of land adjoining to the north and was acquiesced in as such boundary line by such owners, then it will be your duty to return a verdict for the defendant regardless of whether such line actually constituted the east and west quarter line of sections 27 and 28 or not. That is, you would settle it upon the- second proposition, without regard to the surveyor’s lines.
“(34) I further charge you that long acquiescence in a supposed boundary line extending for a period of 15 years or more between adjoining landowners, should be considered as such an agreement upon such lines as to be conclusive, even if originally located erroneously, and if you should find that the north line of the wood lot, so-called, has been acquiesced in for a period of 15 years or more by the owners of the lands adjoining on the north and south as the boundary between said lands, then you must find that such line is the true boundary between the parties to this suit, and in that event your verdict must be for the defendant.
“(35) I further charge you that long acquiescence in and recognition of a boundary line between adjoining owners of land extending over a period of 15 years or more is sufficient to support a claim that said line is the true boundary between such owners, and such line should not be disturbed or upset by any surveys based on alleged original monuments or courses of direction.
“The law was evidently framed by the legislature to fix and end litigation, so that after a while parties cannot bring their suits; that is, if not brought within 15 years they shall be precluded thereby from an attack of a survey.
“(36) The sole question for determination by you in this case is the true boundary line between the adjoining lands owned respectively by the plaintiff and the defendant, regardless of the fact whether- the true boundary line between .these parties is also the true quarter line of sections 27 and 28 or not. (This is the part I think it is meant to cover.) If you find from the testimony that the line as claimed by the defendant has been acquiesced in for 15 continuous years or more by the plaintiff or his predecessors in title and the defendant or his predecessors in title as the boundary line between said lands, the plaintiff is not entitled to recover, and the verdict in that event should be for the defendant. * * *
“(42) Now notice this, gentlemen, because there will be some changes made in it. The burden of proof is on the plaintiff to establish her claim by a fair preponderance of the evidence; unless the plaintiff has so established her claim by a fair preponderance Of the evidence, your verdict would be for the defendant. There is an exception to this rule, to wit: If she has established by a fair preponderance of the evidence that the Wilmarth survey, Wilmarth line, is in fact-the original government survey line, then the burden is upon the defendant to show that the boundary line between these parties ought to be elsewhere. Now that will require a little explanation to make it consistent and harmonious. . I have said to you that the presumption was in favor of the government surveys always, but that presumption may be overcome by evidence. The presumption also is that the government surveyors do their duty and make no mistakes, and that the center line will be in the actual center of the section, that is, the quarter line will be, but that presumption also can be overcome.
“(43) Now it devolves upon the plaintiff to establish as it would in most cases to prove by a fair preponderance of the evidence along with the presumption where the center line is, and the plaintiff has endeavored to do that by presenting the Wilmarth line. Of course the burden of proof would be upon the plaintiff because Wilmarth surveyed it out first as a lost line, and. not as the true government line, but a few years later Wilmarth and Wilcox and the chainman— I forget his name; Tracy I think it was — claim to have discovered such a monument as indicated that the line, the Wilmarth line, was in fact also the government line. Now, to that point the burden of proof is upon the plaintiff, but if you are satisfied by a fair preponderance of the evidence that Wilmarth did finally establish what was the actual government line, then the burden of proof shifts to the defendant, and the burden of proof would be on the defendant then to prove by a fair preponderance of the evidence that Wilmarth was wrong, and that the government survey was not in the center of the section, and that is what it was attempted to do by means of other surveyors.
“(44) The burden of proof would be upon the defendant- to prove by a fair preponderancé of the evidence what he claims under the second proposition, namely, fixing the line where it is because of adverse possession.
“In other words, to state it as the lawyers put it, if the plaintiff has established by fair preponderance of the evidence where the government survey line is, and' that it is actually in the center, then the defendant assumes the affirmative of the defense, because he must assume, as far as the affirmative of the defense is concerned, the burden of proof. Now the burden of proof does not necessarily depend upon the number of witnesses sworn on the part of any party on any one proposition. * * *
“(46) The usual definition of preponderance of the evidence is such evidence as, when weighed with that which is offered to oppose it, has more convincing power in the minds of the jury. It is not a technical term at all, but means simply that evidence which outweighs that which is offered to. oppose it. It does not necessarily mean that a greater number of witnesses shall be produced on the one side or the other, but that upon the whole evidence the jury believes the greater probability of the truth to be upon the side of the party having the affirmative of the issue.”

There was much more of the charge than we have quoted. The jury found a verdict in favor of the plaintiff. The case is brought here by writ of error.

The errors assigned are grouped by counsel as follows:

“(1) Was there error in the exclusion and admission of evidence at the trial?
“(2) Was there error in the charge of the court?
“(3) Was there error in the court’s refusal to charge as requested by defendant?
“(4) Was the verdict against the defendant contrary to law and against the weight of evidence?
“(5)- Should the motion for a new trial have been granted?”

It is said the court erred in excluding certain old surveys, field notes, and other papers. The old records mentioned do not appear in the printed record, and it was agreed that the originals might be used in the oral argument. Counsel are not agreed as to which of these records were excluded. It is claimed that a book of surveys made by Hervey Parke in 1845-46 and a book of surveys made in 1865 were excluded, while counsel for appellee state they were admitted, and cite from the record as follows:

“Q. I show you page 28, and ask you what that plat refers to?
“A. Section 27, town 1 north, range 11 east, recorded on page 39, Book of Oakland County Records, county survey by Hervey Parke.
“Q. Does that show the east and west quarter line through section 27 on that plat ?
“A. It does. This is the line at an earlier day; consequently a little at variance with the other one. North 88° 20" W.
“Q. Are there any figures to note how far it is from the quarter section corner on the west side of the section to the north line of the section?
“A. Yes, sir; it is marked 33 chains 75 links. * * *
“Q. Now what connection does the book show with reference to this quarter line? Without taking time to go over all the monuments, give us the monument that the book shows with reference to the east and west quarter line of that plat. * * *
“Q. On page 30 you will state whether there is an explanation, or can you read the explanation of the survey on page 30 ?
“A. Yes. To re-establish or find the west quarter post on section 27. * * *
“Q. Yes.
“A. That gap 1 chain 45 links was described by—
“Mr. Bromley: Now I object to that; that is not a part of the record.
“A. Yes it is. Found a discrepancy of 1 chain short.
* * *
“Q. Well what does it show about that quarter post on page 31 ?
“A. Set quarter post being the intersection of the line and (witness hesitating, using reading glass) the proportionate measurement made upon corner and records and set recorded survey, yes, and said point was recognized and identified by residents of a number of years.
“Q. Mr. Slater, I show you page 32 of book, Exhibit 10, and I will ask you if you will read what page 32 is?
“The Court: Is that the same exhibit?
“Mr. Patterson: Yes, sir.”

We have a statute reading as follows:

“All such records of surveys, field notes, and calculations made by any former county surveyor, which have been or shall have been on file in the office of either the county surveyor, register of deeds or county clerk for a period of fifteen years or upwards, even though such records or the certification thereof shall not conform to the requirements specified in section one hundred of this act, shall be admissible in evidence of the facts they contain in any court of record in this State.” Act No. 196, Pub. Acts 1915 (1 Comp. Laws 1915, § 2486).

The record is clear that all the records coming within the terms of the above statute were admitted, but it is claimed this law was unquestionably passed to include Territorial as well as State surveyors, and under it the Hervey Parke survey should have been received in evidence. It would seem to be a reply to this claim that the statute does not so read. It is also claimed that these old surveys commencing with the Wampler survey of 1816 should have been admitted in evidence, not only under the statute, but also because of their being ancient records, counsel citing Murphy v. Cady, 145 Mich. 33 (108 N. W. 493), and other authorities. A reference to them will show that they do not relate to records of surveys and other papers that have been the subject of statutory regulation.

In addition to the statute quoted we should mention sections 96, 97, and 102, chap. 14, Rev. Stat. 1846, which provide, in substance, that certain records of surveys made by county surveyors since the organiza-tion of the State government may be received in evidence. Our attention has not been called to any statute making any records of surveys competent evidence unless they are made by county surveyors.- And all the records offered were admitted if shown to have been made by county surveyors. The legislature having provided what records of surveys are admissible, does it not follow that all others are excluded? To permit a party to procure any surveyor to make and file an ex parte survey which may affect the lands of another would be a dangerous construction to put upon the statute.

A survey made by Mr. Russell was introduced in evidence, and much reliance was placed upon it by defendant. Mr. Wilcox assisted Mr. Russell in making this survey, and was allowed to testify as to what was said and done by Mr. Russell during its progress, and was also allowed to testify that Mr. Russell later, after making a second survey, told him he had made a mistake in the former survey. This is said to be error for the reason that it is a self-serving declaration made by an employee to his employer.

As to the declarations of a surveyor who is dead it is said:

“The acts and declarations of a surveyor since deceaséd, while surveying an adjoining lot, are admissible on the question of a boundary, if he was not interested as owner in either lot at the time he made such declarations. If the location of a tract of land is in dispute, declarations of a surveyor, since deceased, made by him while on the ground and at .the time of examining the lines of the tract, are admissible in evidence.” 2 Jones on Evidence, § 306.

See, also,. 1 Elliott on Evidence, § 403.

The rule as given in 15 Am. & Eng. Ann. Cas. p. 874 (Collins v. Clough, 222 Pa. 472), is as follows:

“Subject to some qualifications, it is a general rule that upon questions of either public or private boundaries the declarations of deceased surveyors or their assistants in respect thereto, as, for- example, in respect to the location of a comer or line, are admissible in evidence” (citing a number of cases).

As to the last conversation it appears the surveyor made a second survey, at which time he discovered the error made in the first survey. It does not appear whether the surveyor made this last declaration when engaged in the survey, but it does appear he discovered the error while determining the lines of these parcels; that Mr. Wilcox was living upon the land, and the surveyor, Mr. Russell, directed him to correct the error which he had previously made. There is such a direct connection with the last statement of Mr. Russell with the last survey in which he discovered his mistake as to bring the testimony within the rule.

Groups 2 and 3 may be considered together.

It has been said:

“Where the charge of the court, taken as a. whole, correctly states the law as applicable to the particular case, and clearly defines the issue, the fact that sentences are objectionable, when considered independent of the context, does not constitute reversible error.” Provost v. Brueck, 110 Mich. 136 (67 N. W. 1114).

See, also, Smalley v. Railway Co., 131 Mich. 560 (91 N. W. 1027) ; Beattie v. City of Detroit, 137 Mich. 319 (100 N. W. 574); Bouma v. Dubois, 169 Mich. 422 (135 N. W. 322).

We have quoted sufficiently from the charge to show that the material questions involved were very fully and fairly stated to the jury.

The other assignments of error have been examined, but do not call for discussion.

Judgment is affirmed, with costs to the plaintiff.

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


text:
    OTIS v. ARNTZ.
    Wills — Perpetuities—Suspending Power of Alienation — Statutes — Estates in Trust.
    A will devising an estate in trust to be distributed in a certain number of years after the death of the testator, the income in the meantime to be paid to designated persons, is void under 3 Comp. Laws, § 8796 (3 Comp. Laws 1915, § 11532), providing that every future estate shall be void in its creation, which shall suspend the absolute power of alienation for longer than the period prescribed by law, and such power of alienation is suspended when there are no persons in being in whom an absolute fee in possession can be conveyed, and 3 Comp. Laws, § 8797 (3 Comp. Laws 1915, § 11533) providing that the absolute power of alienation shall not be suspended by any limitation or condition for a longer period than the continuance of two, lives in being at the creation of the estate, and 3 Comp. Laws, §§ 8805, 8818, 8839 (3 Comp. Laws 1915, i§§ 11541, 11554, 11575) providing that limitations of terms of years, disposition of rents and profits of lands and trust estates in land shall be governed by the same rules, and 3 Comp. Laws, § 8847 (3 Comp. Laws 1915, § 11583) providing that no person beneficially interested in a trust estate for tlie receipt of rents and profits can dispose of such interest.

    Appeal from Montcalm; Davis, J.
    Submitted June 27, 1917.
    (Docket No. 144.)
    Decided September 27, 1917.
    Bill by Clark C. Otis against Byron Arntz, administrator, with the will annexed, of the estate of Norman L. Otis, deceased, and others to set aside said will as in violation of the statute against perpetuities. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      William B. Darnels (Edward A. Barnes, of counsel), for plaintiff. ' j

       On validity of restraint on tlie alienation of a fee simple during a limited time, see note in 3 L. R. A. (N. S.) 668.

   Moore, J.

The following statement is taken from the brief of the attorneys for the appellant, and is justified by the record:

“This is a bill for the construction of the will of Norman L. Otis, deceased. It is filed by Clark C. Otis, a son and heir of the testator, and a beneficiary under the will. The administrator with the will annexed, the other beneficiaries under the will, and the only other heir of the deceased, all of whom are of age, are all made defendants. No answers were filed by any of the defendants, and the bill has been taken as confessed. From a decree dismissing the bill plaintiff appeals.
“Norman L. Otis, many years a resident of Montcalm county, died on the 20th day of May, 1916, leaving an estate of approximately $13,000, of which $3,000 was in personal property, and $10,000 in real estate, consisting of a single farm. A will dated February 26, 1910, with several codicils of later date, was duly admitted to probate in Montcalm county on June 23, 1916.
“After providing for the payment of his debts and making several small legacies, the will undertook to dispose of the residue of the estate in the following terms:
‘Fifth. I give, devise and bequeath to my son Clark C. Otis and to my daughter Grace Otis Harter, share and share alike, the income oí the residue of my property, real, personal and mixed, of which I shall die possessed, for the period of twenty-five years after my decease, said income to be paid to them annually and in the case of their decease to their heirs, unless they otherwise direct by will.
‘Sixth. I give, devise and bequeath to my natural grandchildren (the children of the body of the said Clark C. Otis and Grace Otis Harter begotten) share and share alike, all of my real and personal estate not hereinbefore disposed of. The share of any deceased grandchild shall go to his children if living, otherwise to revert to the surviving grandchildren.
‘Seventh. I hereby order and direct that my farm in Bloomer township consisting of one hundred and sixty acres shall remain intact for twenty-five years from my decease. That no part of it shall be sold or mortgaged, and it shall remain as my estate until the expiration of the said term of twenty-five years, when it shall be partitioned among my said grandchildren, or if deemed best to be sold and the proceeds divided together with the personal property of my estate, as directed in section six above.
‘Eighth. I hereby order and direct that the fences and buildings of my said farm shall be kept in good repair, the taxes promptly paid, the land properly fertilized and farmed in a workmanlike manner and the woods allowed to remain intact, excepting what dies of its own accord, or is blown down.’
“The first clause of the first codicil modifies the fifth clause of the will by providing that in the event that the daughter, Grace Otis Harter, shall not survive the term of 25 years the interest devised to her shall for the balance of the 25-year term go ‘to the children of my son Clark C. Otis, share and share alike.’
“In one of the clauses in the codicils he increased one of the specific legacies in the will; in another he gave another legacy of a hundred dollars; and in a third he bequeathed to a church society ‘the sum of twenty-five dollars a year for ten years after my decease for the pastor’s support only, the said sum to be taken from the income of my estate’; and in the last codicil he transferred this annuity to a different church. The remaining clauses of the codicils were made up of elaborate and specific obligatory directions for the management of the farm by the executor and conditions to be inserted in leases, with provisions that upon failure of the tenant to keep the conditions ‘his lease shall become null and void and my executor shall re-enter the said premises and said tenant remove and put out, terminating his. tenancy,’ and he provided for the removal of the executor and the appointment of another iii case the executor should fail to see that such provisions were faithfully carried out.
“The prayer of the bill asks the court to construe and interpret the will, and particularly paragraphs 5, 6, 7, and 8 and paragraph 1 of the first codicil, and that the court construe and declare those paragraphs as void and of no effect, as suspending the power of alienation contrary to the provisions of the statute, and that the court declare the residue of the estate which the testator attempted to dispose of under these paragraphs to be intestate property and as such to belong to the plaintiff and Grace Otis Harter, testator’s only heirs, absolutely, in equal shares, and that the administrator be directed to turn over to the plaintiff and said Grace Otis Harter,all of said residue.”

No brief was filed on the part of the appellee, and in reply to a request for a brief the attorney for Harrison Gray Otis filed a waiver of the right to file a brief accompanying it, with a letter stating in part:

“All the children of C. C. Otis including my client Harrison Gray Otis prefer to have the will construed .as prayed for by the plaintiff.”

The statutes applicable to the situation disclosed by the provisions of the will and codicil which it is asked shall be,construed are as follows:

“Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.
“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.” (The exception referred to has no bearing here.) 8 Comp. Laws, §§ 8796, 8797 (3 Comp. Laws 1915, §§ 11532, 11533).

Sections 8805, 8818, 8839, 3 Comp. Laws (3 Comp. Laws 1915, §§ 11541, 11554, 11575), provide that limitations of terms of years, disposition of the rents and profits of land and trust estates in land shall be governed by the same rules.

“No person beneficially interested in a trust for the receipt of rents and profits of lands, can assign or in any other manner dispose of such interest; but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created, are assignable.” 3 Comp. Laws, § 8847 (3 Comp. Laws 1915, § 11583).

A construction of these statutes has been made by this court, and we quote a part of the opinion then handed down as follows:

“New York has * * * a statute similar to sections 8796, 8797, 3 Comp. Laws, which has been construed a good many times. The effect of these decisions is that a suspension of the power of alienation not based on lives is void, and that the power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. See Moore v. Moore, 47 Barb. (N. Y.) 260; Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 102 N. Y. 161 (6 N. E. 898) ; Cruikshank v. Home for Friendless, 113 N. Y. 337 (21 N. E. 64, 4 L. R. A. 140); Haynes v. Sherman, 117 N. Y. 433 (22 N. E. 938); People v. Simonson, 126 N. Y. 299 (27 N. E. 380); Booth v. Baptist Church, 126 N. Y. 215 (28 N. E. 238) Trowbridge v. Metcalf, 5 App. Div. 318 (39 N. Y. Supp. 243).
“Our own statute has been construed by this court in Trufant v. Nunneley, 106 Mich. 554 (64 N. W. 469), in which it was held that, if effect was given to certain provisions in the will, there would be a time during which there would be no person or persons in whom the estate could vest in fee simple absolute, hence no person in being who could convey, and that this will in that regard was void, and, as to the property affected by the void will, it must be distributed ntiílúT* fVio cfQ'fnfo
“In State v. Holmes, 115 Mich. 456 (73 N. W. 548), Justice Geant, speaking for the court said:
“ ‘The law of this State in regard to estates in possession and in expectancy is found in 2 How. Stat. § 5523 et seq. The provisions controlling this case are sections -5530 and 5531, which read as follows:
“‘“Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended whe-i there are no persons in being by whom an absolute fee in possession can be conveyed.
“ ‘ “The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section.”
“ ‘This statute was adopted in the State of New York in 1830. It was .subsequently adopted in this State verbatim- et literatim, and is found in the Revised Statutes of 1846. The construction placed upon this statute by the courts of that State has a controlling influence, and courts will presume that the legislature recognized and accepted such construction. Greiner v. Klein, 28 Mich. 12. The court of appeals of New York had passed upon this statute several times before its adoption here. Coster v. Lorillard, 14 Wend. 265, 312; Hawley v. James, 16 Wend. 61; Hone v. Tan Schaick, 7 Paige, 231; Irving v. De Kay, 9 Paige, 529. It has been before that court many times since. Yates v. Yates, 9 Barb. 324, 347; Tayloe v. Gould, 10 Barb. 398; Tucker v. Tucker, 5 N. Y. 417; Rose v. Rose, 4 Abb. Dec. 108; Moore v. Moore, 47 Barb. 260; Garvey v. McDevitt, 72 N. Y. 556; Rice v. Barrett, 102 N. Y. 161 (6 N. E. 898); Cruikshank v. Home for Friendless, 113 N. Y. 337 (21 N. E. 64, 4 L. R. A. 140); Haynes v. Sherman, 117 N. Y. 433 (22 N. E. 938); People v. Simonson, 126 N. Y. 299 (27 N. E. 380); Booth v. Baptist Church, 126 N. Y. 215 (28 N. E. 238); Trowbridge v. Metcalf [5 App. Div. 318] 39 N. Y. Supp. 243.
“ ‘The rule established by these authorities is that a suspension of the power of alienation not based on lives is void, and that the power of alienation is suspended when there are • no persons in being by whom an absolute fee in possession can be conveyed. It is said in Moore v. Moore:
“ ‘ “In all the adjudicated cases upon this statute the courts have uniformly held that the period of suspension of alienation could not be measured by time alone; that life must, in some form, be the measure of the period of suspension.” ’ ”

Casgrain v. Hammond, 134 Mich. 419, at pages 429, 430 (96 N. W. 510, 104 Am. St. Rep. 610).

In that case it was held that, where land is conveyed to a trustee under a trust which is void on the death of the grantor, the land should be distributed under the statute. We think the case on all fours with the instant case, and that the fifth, sixth, seventh, and eighth paragraphs of the will and paragraph 1 of the codicil dated December 24, 1910, are void. The other bequests made in the will and codicils stand.

The decree is reversed, and one will be entered here in accordance with this opinion. No costs will be given to either party.

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


author: MOORE, J.

text:
      In re GARDNIER’S ESTATE. GARDNIER v. SMITH.
    1. Wnxs — Testamentary Capacity — Burden of Proof — Presumptions — Instructions.
    In a will contest an instruction that the contestant has the burden of proof to show mental incapacity, as the law presumes, in the absence of any proof at all, that a man was not influenced in making his will, and that all men are sane until proved insane, held, to be correct.
    2. Same.
    Under Act No. ' 314, Pub. Acts 1915, chap. 17, § 58, the contestant in a will contest has the burden of proof to show mental incapacity of testator, as the law presumes, in the absence of any proof at all, that a man was not influenced in making his will, and that all men are sane until proved insane.

    Error to Oakland; Smith, J.
    Submitted June 21, 1917.
    (Docket No. 117.)
    Decided September 27, 1917.
    Frank A. Gardnier presented for probate the last will and testament of Esther J. Gardnier, deceased. The will was allowed in the probate court, and Henry Harvey Smith appealed to the circuit court. Judgment for proponent. Contestant brings error.
    Affirmed.

      Washington I. Robinson, for appellant.

      Patterson & Patterson, for appellee.

       On burden of proof as to testamentary capacity, see notes in 17 L. R. A. 494; 36 L. R. A. 724, 733.

   MOORE, J.

Esther J. Gardnier died at Eochester, Mich., where she had lived many years, on the 14th day of January, 1915, leaving a last will and testament, bearing date October 9,1906, and a codicil thereto, bearing date September 12, 1918. She was the widow of Richard O. Smith who died in 1891, leaving property of the value of $24,000. Richard O. Smith died intestate, leaving the widow and one child, Henry R. Smith. The property of Richard O. Smith was equally divided between Esther J. Smith and Henry R. Smith. Two years and ten months after the death of Richard O. Smith, his widow, Esther J. Smith, was married to Frank A. Gardnier, a man a good deal younger than herself, and they lived together more than 20 years, until the death of Mrs. Gardnier. Henry R. Smith was not a success as a business man or socially. After the death of his father, his mother came to his rescue many times, and finally was appointed his guardian on the ground of his mental incompetency. He died October 2, 1906, at the age of 55 years, leaving a widow, Cynthia Smith, and a son, Henry Harvey Smith. Henry Harvey Smith, the grandson, was 29 years old in November, 1915. He lived in the village of Rochester nearly all his life. He had not seen his grandmother, to talk with her, more than four times in his life. He was divorced from his first wife, and was often in trouble, sometimes under arrest, and at one time was sentenced to the Detroit house of correction. The will of Esther J. Gardnier is dated October 9, 1906. The record shows that when Henry Harvey Smith was arrested on this charge, and while his father was still living, Esther J. Gardnier signed his bail bond. The father died October 2, 1906, and when Esther J. Gardnier was requested to sign another bail bond, after his father’s death, she refused, saying that he was no grandson of hers.

Mrs. Gardnier left property, consisting of real estate aggregating, according to the appraisal, $9,500, and personal property appraised at $708.88. At the time of her death she was 81 years of age, and was in good health until the time of her death. She had the charge and the management of her property. The will in question was executed October 9, 1906, one week after the death of Henry R. Smith, and a little more than a month after Henry Harvey Smith, the grandson, was arrested on the charge that sent him to the house of correction. The will gave to the husband, Frank A. Gardnier, a house and lot in Detroit, and all of the household goods, and one-half of all other property, real and personal, provided he survived testatrix, but, if not, then the whole of the estate was devised to Mrs. Gardnier’s brother. The record shows testatrix in her own handwriting, before she signed the will, inserted after the provision for Frank A. Gardnier, the words, “his lifetime, then to my brother, John J. Anderson.” She also left $5 to her grandson, Henry Harvey Smith, and $5 to the widow of her son, Henry R. Smith. The codicil, executed September 12, 1913, was made after testatrix had sold the house and lot in Detroit, and her brother had died. The codicil gave to her husband the use during his life of the house and lot and household goods, occupied by testatrix and himself as a homestead, and the use during his life of one-half of all her other property, subject to the payment of her debts and the legacies of $5 each to Cynthia Smith and Henry Harvey Smith, and the other one-half to the children of her deceased brother.

Henry Harvey Smith contested the will and codicil on three grounds:

(1) Mental incompetency.

(2) Undue influence.

(3) An insane delusion that Henry Harvey Smith was not her grandson.

The court instructed the jury there was no evidence of mental incompetency, but left the other two grounds of contest to the jury. From a verdict establishing the will and codicil, the case is brought here by appeal.

Several minor assignments of error are presented, which do not call for discussion more than to say we think the assignments of error as to them are not well taken. The important question is stated by counsel as follows:

. “It is the claim of contestant that the court erred in charging the jury as follows: ' ‘That the burden of proof to establish the two propositions that the court will submit to you for your consideration by a fair preponderance is upon the contestant. * * * - The contestant has the affirmative of the issue, because the law presumes, in the absence of any proof at all, that a man was not influenced in the making of his will, and because it presumes that all men are sane until they are proven insane.’ ”

Counsel insists that it is well established in this State that the burden of proof is upon the proponents upon the question of mental capacity, and rests with the proponents throughout the case, quoting from In re Mansbach’s Estate, 150 Mich. 348 (114 N. W. 65), and citing McGinnis v. Kempsey, 27 Mich. 373, Prentis v. Bates, 93 Mich. 245 (53 N. W. 153, 17 L. R. A. 494), Beaubien v. Cicotte, 8 Mich. 9, Taff v. Hosmer, 14 Mich. 309, Aiken v. Weckerly, 19 Mich. 482, Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566), and In re Thayer’s Estate, 188 Mich. 269 (154 N. W. 32).

In disposing of a motion for a rehearing the trial judge said the case of In re Mansbach’s Estate, supra, was not called to his attention, that, if - it had been, he might have charged the jury differently, but that, as he gave verbatim contestant’s requests to charge, the jury was not misled. He expressed himself as of the opinion that another jury would reach the same result, and denied the motion for a new trial.

It may be conceded that until recently the rule as to the burden of proof has been as stated by counsel for contestant, but this rule was recently changed by the provisions of section 58, chapter 17, of Act No. 314 of the Public Acts of 1915 (3 Comp. Laws 1915, § 12546). The provisions of this section were construed in a carefully considered opinion written by Justice FelloWs, which construction justifies the charge of the trial court in the instant case. The opinion of Justice Fellows is in the case of Soule v. Henry, 197 Mich. 473 (163 N. W. 944), and was filed July 27, 1917. This opinion is so recent, so exhaustive in its discussion, and so accessible, that we content ourselves by referring to it.

The judgment is affirmed, with costs to the proponent.

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


author: Steere, J.

text:
    FREEMAN v. MITCHELL.
    1. Injunction — Preliminary Injunction — Motion to Dismiss— Judicature Act.
    A .contingent application for dissolution of a preliminary injunction may be combined with a motion to dismiss tbe bill as insufficient on questions raised by demurrer prior to the passage of tbe judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12004 et seq.).

    2. Same — Discretion of Court — Abuse of Discretion.
    To grant ot dissolve an interlocutory injunction is a discretionary order of the trial court with which the courts will rarely interfere, and then only on special application and a strong showing of palpable abuse of discretion.

      3. Appeal and Error — Preliminary Injunction — Motion to Dismiss.
    An order dissolving a preliminary injunction is not a final, appealable order.
    4. Corporations — Rights op Stockholders — Fraud—Actions— Equity.
    Where the directors- of a corporation are charged with fraud in carrying out a scheme to wreck the corporation by giving a mortgage for an unwarranted amount, timed and intended to be promptly foreclosed, as is done, if is unnecessary that a stockholder apply to such directors to commence a suit for redress before individually seeking relief in equity.
    5. Same.
    A bill of complaint by a stockholder against directors of a corporation charging fraud and conspiracy in giving a mortgage for an unwarranted amount, timed and intended to be promptly foreclosed, and the purchase by such directors indirectly of all the assets of the corporation at the foreclosure sale, Tield, sufficient to warrant a court of chancery taking cognizance under its general equity jurisdiction.
    6. Appeal and Error — Motion to Dismiss — Judicature Act— Demurrer.
    A motion to dismiss a bill as insufficient, under the judicature act (Act No. 314, Pub. Acts 1915, chap 14, § 4, 3 Comp. Laws 1915, § 12456), raises only such questions as previous to the enactment of such law could be raised by demurrer.
    7. Same.
    On demurrer to a bill the allegations of facts properly pleaded are treated as true.
    8. Same.
    In a suit in equity defendant’s affidavits in denial and explanation have no place in a demurrer.
    Cross-appeals from Hillsdale; Collingwood, J., presiding.
    Submitted June 18, 1917.
    (Docket No. 67.)
    Decided September 27, 1917.
    Bill by Amariah F. Freeman against C. T. Mitchell and others, executors of the estate of William W. Mitchell, deceased, the Alamo Manufacturing Company and others to enjoin the foreclosure of a mortgage against defendant corporation. From an order dissolving a temporary injunction and denying a motion to dismiss, both parties appeal.
    Affirmed.

      A. F. Freeman and F. M. Freeman, for plaintiff.

      F. A. Lyon, for defendants.
   Steere, J.

This proceeding presents for review an order of the circuit court of Hillsdale county in chancery disposing of a motion by defendants asking dismissal of a bill of complaint filed against them by plaintiff, and for dissolution of a preliminary injunction granted when plaintiff filed his bill.

Aside from the request for dissolution of the injunction, the motion is in effect a demurrer to plaintiff’s bill under former practice; motions to dismiss being now substituted for demurrers under section 4, chap. 14, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12456]). With the motion to dismiss, which is purely a demurrer, is combined a motion for dissolution of the injunction, affidavits being filed in support of the latter feature, as we assume, for it would scarcely be contended that a question of the sufficiency of plaintiff’s bill as heretofore raised by demurrer will be tested by affidavits to the merits of the controversy.

Upon hearing said motion the trial court dissolved the injunction and denied the motion to dismiss plaintiff’s bill. Defendants appealed from denial of their motion to dismiss the bill, and plaintiff from that portion of the order dissolving his injunction.

We see no objection to combining a contingent application for dissolution of a preliminary injunction with a motion to dismiss the bill as insufficient on questions heretofore raised by demurrer. If the motion to dismiss the bill is well.founded and prevails, the injunction falls with the bill; if not, the right remaining to urge an application for its dissolution after demurrer and before answer may be promptly disposed of at the one hearing, the applications being correlated and to a degree seeking the same relief.

To grant or dissolve an interlocutory injunction is a discretionary order of the trial court with which the appellate courts rarely interfere, and then only on special application and a strong showing of palpable abuse of discretion. It is fairly indicated in this proceeding that plaintiff will not be deprived of the benefits sought' by his suit should he prevail, and, conceding the question properly here for review, we discover no abuse of discretion; neither does this order dissolving a preliminary injunction appear to deprive the plaintiff of any strict, legal rights, so as to be in its nature a final, appealable order. This rule has been applied to orders, denying motions to grant, modify, and dissolve preliminary injunctions. Wing v. Warner, 2 Doug. 288; Spencer v. Stearns, 28 Mich. 463; Simmons v. Board of Sup’rs of Alcona Co., 144 Mich. 591 (108 N. W. 282). The order of the trial court dissolving the injunction will therefore not be disturbed.

Against the court’s refusal to grant defendants’ motion to dismiss the bill as fatally defective upon the questions raised, as formerly by demurrer, defendants filed various assignments of error covering the court’s failure to recognize as tenable the several grounds set out in their motion, which are condensed in counsel’s brief to “questions involved” as follows:

“Did the bill of complaint set forth facts authorizing the plaintiff as a stockholder to bring and maintain this suit as a stockholders’ suit?
“Did the bill of complaint set forth facts sufficient to authorize the plaintiff to prosecute the suit and to put the defendants to the trouble and expense of trying said cause on the merits?”

The bill is filed by plaintiff as a stockholder in the Alamo Manufacturing Company, a corporation, of Hillsdale, Mich., with a capitalization of $600,000, of which $250,000 was preferred and $350,000 common stock. He alleges that it had been doing business “for a long term of years,” and he has been a stockholder, owning 100 shares of its preferred and 300 shares of its common stock since March, 1908.

The substance of his grievance as detailed in his somewhat verbose bill is that in 1916, without his knowledge or consent, or that of the general stockholders, as he is informed and believes, defendants in unlawful combination and by a “species of fraud and conspiracy to cheat and defraud the general stockholders and this plaintiff and cut them and him'off from further connection or relation to the properties of this defendant company,” developed and carried out a scheme to wreck the corporation as such and absorb all its corpus of value, by having its president and secretary exécute to the representatives of the estate of William W. Mitchell, deceased, a large mortgage on the entire assets of the company payable presently, and by promptly causing the same to be foreclosed in chancery by default and bidding in the property, obtained title and control of all assets of the corporation, taken in the name of the Mitchell estate, for and in the interest directly or indirectly of said defendants, or part of them, to the exclusion of the general stockholders and all others in interest not parties to the conspiracy.

It is strenuously urged that plaintiff has no standing in court as a stockholder because the bill fails to show that he first made application to the board of directors asking or demanding of them that they bring suit or take some action to remedy the alleged wrong for and in behalf of the corporation, and that they neglected or refused to take such action, citing numerous authorities to the effect that such course is a prerequisite to action by an individual stockholder, and it is said:

“There is absolutely no attempt made to charge the directors or any number of them with having gotten control of the assets of the company and converted them to their own use, nor with having wasted and squandered the assets in any manner, shane. or form.”

We cannot so construe plaintiff’s complaint. The burden of his bill is that the directors were intentionally false to the trust they had assumed as officers of the corporation; that, being in complete control of its business and assets, they clandestinely and fraudulently conspired, planned, and acted against its interests in the matter of this mortgage, given by their direction for an unwarranted amount, timed and intended to be promptly foreclosed, as it was, on default, by one of their number acting in the foreclosure suit as attorney of the mortgagees, recognized prior thereto as the advisor and attorney of the corporation; further charging, in connection with a cited annual report made by the majority of the directors just before authorizing the mortgage, that:

“There is no such amount as stated properly as mortgage indebtedness nor as a proper decree or obligation against defendant'company, and that said mortgage is fraudulent, * * * conceived * * * to cheat and defraud the stockholders of defendant company and gain titles away from defendant company and its stockholders and to the person or persons whom they might select or name as bidders at a foreclosure' sale,” etc.

It is evident that, if such charges of fraudulent, conduct are well founded (and for the purposes of a demurrer they are so assumed if well pleaded), it would be idle for plaintiff to apply for redress to the board of directors whose conduct he thus impugns. The following language in Torrey v. Cement Co., 150 Mich. 86 (113 N. W. 580), is well in point here:

“This is not a case for the application of the rule that redress must be sought through the corporation before individual stockholders can seek redress in equity. The officers of the corporation are charged with fraud from the beginning, and it would be useless to ask them to cause suits to be commenced in which they are directly interested. The case is well within the principle of Miner v. Ice Co., 93 Mich. 97 (53 N. W. 218, 17 L. R. A. 412) ; Edwards v. Investment Co., 132 Mich. 1 (92 N. W. 491).”

There is some foundation for the charge against this bill that many of its allegations are generalities, conclusions, and assertions of belief with scant averment of definite facts to bear them out, but with them run others more tangible. It is also true that certain of the material allegations are upon information and belief, which could not well be otherwise under the circumstances alleged, but it does not follow that the bill is demurrable if it contains distinct charges and material allegations well pleaded. As foundation for the charge that the mortgage was given for an excessive amount and in bad faith plaintiff alleges, amongst other things, that it purports to be given to secure a series of notes in the principal sum of $250,-000, was executed by the president and secretary of the corporation acting under authority of its board of directors, was acknowledged before one of said directors as notary public, bears date January 10, 1916, and was recorded January 11, 1916, and within 50 •days after it was given a bill of complaint was filed to foreclose it claiming past due and unpaid $269,-808.37, principal and interest, and:

“That it will appear by reference to the said last annual report filed and to be filed with the secretary of State as aforesaid as of December 31, 1915 (and sworn to February 29,1916), and only ten days before said mortgage of $250,000 was given, that there was no mortgage indebtedness whatever against defendant company property, and that the liability on all other secured indebtedness was $190,926.28, and on all unsecured indebtedness was $21,643.39, or a total of $212,569.57, and that by that report it will also appear that the company had of assets $191,620.12 in goods, chattels, material, etc., and credits owing the company of $98,322.64 and of other assets which in all aggregated in value according to that sworn report to the munificent amount of $517,621.12.”

It is further alleged as evidence of fraud in combining to give and foreclose the mortgage that the correctness of this report was attested by a majority of the board of directors who authorized the mortgage, including the attorney who 'foreclosed it for the mortgagees. Particular reference is also made to this and preceding reports as sustaining plaintiff’s theories and averments of fraudulent conduct inimical to the interests of the corporation. The merits of these charges are contingent on the truth of the facts alleged and the inferences to be drawn from them.

We find scattered through this bill sufficient definite allegations of fact and charges of conspiracy and fraud to move a court of chancery to take cognizance under its general equity jurisdiction; they are not such as to be summarily met and dismissed on motion, nor can their merits be tried out on affidavits. This motion raises only such questions as could heretofore be raised by demurrer. On demurrer the allegations of fact properly pleaded are assumed as true. . Defendant’s affidavits in denial and explanation, wherein lies the chief strength of their argument, have no place in a demurrer, and cannot be considered in this proceeding.

The order of the trial court will stand affirmed, with costs of this motion, as on demurrer, in favor of plaintiff ; defendants being granted the usual time to plead over issuably herein as they may be advised.

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


text:
    McPHEE v. MILLERS' NATIONAL INSURANCE CO.
    1. Insurance — Fire Insurance — Partnership — Right of Partners.
    One partner may insure his interest in partnership property in his own name.
    2.. Same — Fire Insurance — Contracts—Breach of- Condition— Forfeiture — Statutes.
    Act No. 128, Pub. Acts 1911, § 1 (2 Comp. Laws 1915, § 9481), providing that no policy of fire insurance issued thereafter shall be declared void for the breach of any condition, wheré a loss has not occurred during such breach and by reason of such breach of condition, must be construed as meaning that no forfeiture is to take effect if the insurer has not been injured by a breach of the condition, nor if the fire was not caused by a breach of the condition, even though the breach was existing at the time of the fire.

    Error to Sanilac; Beach, J.
    Submitted June 21, 1917.
    (Docket No. 121.)
    Decided September 27, 1917.
    Assumpsit by Hugh McPhee against the Millers’ National Insurance Company on a policy of fire insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Walters & Hicks and Barger & Hicks, for appellant.

      Charles F. Gates, for appellee.

       For authorities passing on the question of formation of partnership or change in personnel of as affecting a change of title or ownership, see note in 21 L. R. A. (N. S.) 442.

   Steere, J.

Plaintiff recovered a verdict and judgment for the full amount, with accumulated interest, of a $5,000 insurance policy issued to him by defendant on February 28, 1912, insuring the stock and buildings of his retail lumber business in the village of Melvin, Sanilac county, where he conducted a lumber yard. The policy insured this property against loss, or damage by fire or lightning for a period of five years, $950 of the insurance being placed upon his building' and sheds, and $4,050 on his stock of lumber, etc. The premium was payable annually, in advance as called for; the total amount, however, not to exceed the amount of plaintiffs deposit note given under the terms of the policy. All premiums were paid when due.

On November 11,1915, the buildings and stock were entirely destroyed by fire. ■ No question is raised as to the extent and honesty of the loss. It is admitted to have exceeded the combined insurance upon the property, and that ten-twelfths of the value of the stock or personal property destroyed by the fire was in excess of the insurance upon it under the policy.

It was shown without question that at the time plaintiff made application for and obtained the policy upon which this action is brought he represented himself to be and was the sole owner of all the property described in the policy, and was then engaged in the retail lumber business at Melvin in his own name, so continuing alone until 1914, when he disposed of a one-twelfth interest in the stock and business to his son, William, in return for his services in that business, which was thereafter conducted in the name of the H. J. McPhee Lumber Company. About a year later he “took in” and sold a one-twelfth interest in the personal property to another young man named Dennis, continuing to operate under the same firm name as before. They “had no writings” except the statutory certificate filed with the county clerk showing who composed the partnership.

Plaintiff did not notify defendant that he had taken these young men into partnership with him or obtain its consent to the transfer of a one-twelfth interest in the personal property to each of them, but the premiums on the policy were paid thereafter under the name H. J. McPhee Lumber Company. A check for premium, dated February 18, 1915, payable to defendant and signed by “H. J. McPhee Lumber Company,” with a receipt therefor given by defendant to “Hugh Mc-Phee,” dated February 20, 1915, were produced in evidence. On the check appeared in print, “H. J. Mc-Phee, dealer in lumber and building material.”

Defendant declined to pay the loss on the ground that at the time it occurred a change had taken place in the interest of the property insured by the voluntary act of plaintiff without its knowledge or consent, and this action was brought.

The facts were concededly undisputed, and at the conclusion of the evidence plaintiff moved the court to direct a verdict in his favor for the amount of the policy with interest, while defendant moved the court to direct a verdict in its favor for the following reasons:

“That the policy in suit was void at the time of the fire because the plaintiff was not then the sole and unconditional owner of the personal property described in the policy.
“That the plaintiff had, before the fire, without the knowledge or consent of the defendant, .sold and delivered a one-twelfth interest in the insured property to each of two persons, William J. McPhee and Melvin Dennis, respectively, and these interests, were outstanding in partnership form at the time of the fire.
“The personal property described in the policy was owned at the time of the fire by a copartnership, the H. J. McPhee Lumber Company, composed of H. J. McPhee, the plaintiff, W. J. McPhee, and Melvin E. Dennis.”

It being undisputed that plaintiff was sole owner of the buildings, and had transferred to the two young men but a one-twelfth interest each ‘in the personal property, leaving in him a largely preponderating insurable interest, the trial court said in part:

“Plaintiff still having such an insurable interest, under Act No. 128, Pub. Acts 1911 (2 Comp. Laws 1915, § 9481), the burden was on the defendant to show that the insurer had been injured by the nominal transfer, and that the loss occurred by reason of such nominal breach. No proof of such injury or that the loss occurred by reason of such breach was made in the case.”

A verdict was thereupon directed in plaintiff’s favor for the full amount of the policy.

Defendant thereafter moved for a new trial, renewing and elaborating the reasons urged in its motion for a directed verdict, which was also denied.

Plaintiff was insured under a Michigan standard policy in form prescribed by Act No. 246, Public Acts 1911 (2 Comp. Laws 1915, § 9475), which contains a lengthy paragraph providing that the entire policy shall be void upon the breach of any one of 14 different detailed conditions, the tenth of which is in part:

“Or, if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupant without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise.”

These conditions are disjunctively conjoined by “or if,” and the paragraph concludes with the following qualifications:

“Provided, A loss shall occur on the property insured while such breach of condition continues, or such breach of condition is the primary or contributing cause of the loss.”

Defendant contends that under this contract of insurance, which it was required by statute to adopt, the entire policy is void, because a change in the interest or title of the property insured took place without its knowledge or consent, by the voluntary act of plaintiff in transferring to each of the young men he took into partnership a twelfth interest in the personal property insured.

It is not claimed to have been shown, nor is it inferable in any manner from the fact as proven, that the hazard (moral or otherwise) was increased by the alleged breach of condition, nor that the same was in any way a primary or contributing cause of the loss, but it is a fact that the loss occurred while it continued, and upon this defendant predicates the contention that the policy was then inoperative.

Although no exception is directly made, we assume it is not intended to include in this contention the buildings. When the loss occurred plaintiff was the sole owner of them, they were being used for the same purpose, in the same business. As to them the ownership and actual contracts remained as when the policy was issued insuring them divisibly for a separately specified amount.

It needs no citation of authorities to sustain the proposition that plaintiff had in any aspect of the case an insurable interest in the personal property at the time of the fire, by which he sustained a pecuniary loss exceeding the amount of the policy. He not only owned the buildings outright, but had a five-sixths interest in the personal property which exceeded in value the insurance on all of it. One partner may insure his interest in partnership property in his own name, Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25; Warren v. Insurance Co., 31 Iowa, 468 (7 Am. Rep. 160). As limited by the amount of the policy, his loss .was as large as though he had been the sole owner, and by reason of his dominant ownership he was as much interested in and had as full possession and control of this business and property as before. But defendant contends that he had changed the title to the subject of insurance by taking in these two young men as partners, with a one-twelfth interest each, thus making the stock partnership property, and so breached a condition of his policy; that the partnership interest he had at the time of the fire was not the interest it insured; that it insured the property , itself to him as sole owner, and therefore, although the breach did not contribute to the loss, defendant is entitled to stand upon the forfeiture stipulated in the policy in case of a change in title and interest in the property insured, as here shown.

Forfeitures are not, as a general rule, favored in law (Insurance Co. v. Norton, 96 U. S. 234; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452 [14 Sup. Ct. 379]), and courts are reluctant to enforce them if the rights of parties can otherwise be protected; but the phraseology of contracts of insurance and supporting statutes have often made that duty imperative as the many decisions cited upon the subject by defendant’s counsel, from this and other jurisdictions, make manifest. The legislature of 1897 apparently took note of this and passed a law, Act No. 167, entitled.

“An act to prevent the forfeiture of fire insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer.”

The construction put upon section 1 of this act left the law of forfeiture substantially as before, and Act No. 128, Public Acts 1911, was passed, amending said section 1 to read:

“No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition * * * where a loss has not occurred during such breach and by reason of such breach of condition.”

So amended, the act was construed by this court in Lagden v. Insurance Co., 188 Mich. 689 (154 N. W. 87, 158 N. W. 848), to mean:

“(a) That no forfeiture is to take effect if the _ insurer has not been injured by a breach of condition.”
“(b) That no forfeiture is to take effect if the fire was not caused by a breach of condition, even though the breach was existing at the time of the fire.”

It is also there said:

“By this provision the legislature has prescribed the conditions under which such a defense can be made, and it has in effect read this provision into each condition of the policy.”

Neither is the construction nor act itself limited to any particular kind of fire insurance policies or companies. The act begins with the broad and positive prohibition that “no policy of fire insurance shall hereafter be declared void by the insurer for any breach of condition of,” etc., and the decision construes this legislation as prescribing the conditions under which such a defense can be made. Those conditions for defense do not exist in this case.

The contention against this construction, which is here renewed, was strenuously urged, argued, and extensively briefed on hearing and rehearing in the Lagden Case. Admittedly the questionable and sometimes inharmonious use of “or” and “and,” which infests our insurance legislation, gives opportunity for diversity of opinion as to the legislative intent, but in that case it was found and held by the majority opinion of this court that the clearly obvious purpose of the amendment was to accomplish what the title of the act indicated, and avoid the construction for which defendant is here contending. This court, as such, finds no occasion to overrule that decision, which is controlling against the contention defendant renews here, and the judgment of the lower court will therefore stand affirmed.

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