text:
    SUPERINTENDENTS OF POOR OF JACKSON COUNTY v. SUPERINTENDENTS OF POOR OF HILLSDALE COUNTY.
    Indigent Insane — Support by County — Legal Settlement— Statutes Construed.
    1 Comp. Laws 1897, §§ 1915-1921, relating to the care of pauper and indigent' insane at the State asylums, provide that the expense of their maintenance shall be borne by the county - in which they have acquired a "legal settlement,” but do not define the term. 2 Comp. Laws 1897, § 4534, makes a year’s residence necessary in order that one may gain a settlement in a township under the poor laws. Held, that section 4534 may be taken as showing the intent of the legislature, and, therefore, residence of one year is required to constitute the legal settlement of pauper and indigent insane.

      Certiorari to Jackson; Peck, J.
    Submitted April 11, 1900.
    Decided May 2, 1900.
    Petition by the superintendents of the poor of Jackson county against the superintendents of the poor of Hillsdale county to determine the liability for the support of an indigent insane person. Prom an order in favor of petitioner, defendant brings certiorari.

    Affirmed.

      William H. Frankhauser, Prosecuting Attorney, for appellant.

      Charles H. Smith, Prosecuting Attorney, for appellee.
   Hooker, J.

Henry Jeffrey came to this country from England in 1886, and lived in Hillsdale county, where he worked- as a farm hand, until November, 1895, when he removed to Jackson county. He was unmarried, and was never aided as a pauper by either county until he was committed to the insane asylum from Jackson county in September, 1896. At that time his property consisted of a horse, harness, wagon, and a small sum of money which he had saved from his earnings as a farm laborer. Jackson county has paid to the asylum for his cai-e $419.03. Upon a proper application, the circuit judge having jurisdiction of Jackson county found Jeffrey’s legal settlement to be in Hillsdale county, and ordered that it refund said sum to Jackson county. The case is here on certiorari.

This case would be on all fours with In re Woodcock, 123 Mich. 369 (82 N. W. 71), but for the fact that the law upon which that case turned, viz., Act No. 178, Pub. Acts 1897, took effect nearly a year after Jeffrey was committed to the asylum. In order to sustain the decision of the learned circuit judge, it is therefore necessary to give that law a retroactive effect, or find that he had not gained a legal settlement in Jackson county under pre-existing laws.

The word “settlement,” as used in these and similar statutes, has a different meaning from the word “residence” in other statutes. For voting purposes, it is enough for an elector to have resided in a township 20 days, though, in order to entitle him to support as a pauper, a year has long been necessary, and his residence must have been under conditions which the law recognized as such as constituted his residence a legal settlement. See 18 Am. & Eng. Enc. Law, 778.

The statute (2 Comp. Laws 1897, § 4534) provides that a person shall gain a settlement under our poor laws by “residing and inhabiting” a township for a year. That chapter, which is devoted to the subject of “support of the poor by the public,” contains no other provision as to what shall constitute a settlement. Section 4536 provides Avhere a pauper shall be supported — First, by the township where he has gained a settlement; second, if he has not gained a settlement in any township in the county, then he is to be supported, at the expense of the county, by the superintendents of the poor. This is in accprd with section 4533, which declares that the poor shall be supported by the county in which they may be, where they have not acquired legal settlement in any town. Again, section 4502 provides for the support of poor persons by the county in which they may be, according to more specific directions which follow. The act then provides for county superintendents of the poor, and a fund for their use. It then prohibits the bringing of paupers into the county .under a penalty, and provides for the return of such, and reimbursement for expenses incurred by the superintendents of the county from which he was brought.

Construing all of these provisions together, there is some plausibility to the claims (1) that a township can never be liable for the support of a'pauper, unless he has been “a resident and inhabitant” of such township for a year; (2) when a settlement has not been gained in any township of a county where an indigent person may be the county must support him, temporarily at least, but may require his removal to, and reimbursement from, another county, from which he has been removed after becoming a pauper.

So far the statute has not provided for the raising of the question of settlement between counties, or between townships of different counties, it being apparently the duty of the county where one becomes a pauper to support him. This was held in the case of Superintendents of Poor of Kalkaska Co. v. Superintendents of Poor of Grand Traverse Co., 120 Mich. 247 (79 N. W. 196) where the statute was discussed.

This case is complicated by the application of another statute, viz., 1 Comp. Laws 1897, chap. 69, §§ 1915-1921, which provides for the care of the pauper and indigent insane at asylums maintained at public expense. This act provides that the burden shall be borne by the county where the person has acquired a legal settlement, and the probate judge is authorized to determine what county is chargeable. The term “legal settlement” is defined in but one statute, and that has been cited. It is there used in connection with the poor laws. It is plain that the legislature had in mind some period or circumstances which should constitute a legal settlement, as that should be sufficient to impose the burden of public support, and what more natural than that it should be the requirement established by law in ordinary cases? It is urged that the legislature has never made a year’s residence the rule as to counties. We reply that the period of a year has been fixed as necessary to gain a settlement as between townships of one county. For reasons satisfactory. to the legislature, the question of legal settlement has not been permitted to be raised between counties, or townships of different counties, in ordinary cases. But it is provided for in cases of the indigent insane, and we have not the slightest doubt that the statutory period was intended to constitute a settlement in these cases. Since this case arose, the legislature has indicated a similar understanding by passing the act referred to in Re Woodcock, 123 Mich. 369 (82 N. W. 71). See 2 Comp. Laws 1897, § 4550.

Order affirmed.

The other Justices concurred


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    GOUCHER v. JAMIESON.
    1 Assault and Battery — Provocation—Instructions.
    In an action for assault and battery, which defendant sought to justify by an opprobrious epithet applied by plaintiff to defendant’s son, an instruction that mere words, -though insulting, do not justify an assault and battery, and that no assault is justified, unless for some assault by the other party, was proper.
    2. Same — Damages—Injury to Feelings.
    Injury to feelings was a proper element of the damages recoverable in such action.
    Error to Wayne; Frazer, J.
    Submitted April 11, 1900.
    Decided May 2, 1900.
    Trespass vi et a/nnis by George B. Goucher against James Jamieson. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John Gf. Hawley, for appellant.

      Echvard M. Vining (J. Emmet Sullivan, of counsel), for appellee.
   Hooker, J.

The defendant has appealed from a verdict and judgment of $65 recovered by the plaintiff in a suit for assault and battery. The battery was not disputed, but the defendant claims that it was provoked by language used by the plaintiff derogatory to the defendant’s son, who appears to have picked some berries upon the plaintiff’s land. The plaintiff spoke to the defendant about it, and admits.that defendant said, “Do you call my son a thief?” while it is claimed upon the part of the defendant that plaintiff said, “Your boy Tom is a thief,” before any blows were struck.

A number of questions were raised upon the introduction of evidence. We have examined them, and think it unnecessary to say more than that they do not call for a reversal of the case.

The court instructed the jury that mere words, though insulting, do not justify an assault and battery, and that “no assault is justified, unless by some assault performed by the other party.” He also said, “The plaintiff would be entitled to recover such damages as he suffered on account of his feelings being hurt,” etc. The instructions given were, in our opinion, proper, under the circumstances of the case.

The judgment is affirmed.

The other Justices concurred.


text:
    O’CONNOR v. WHITE.
    1. Summary Proceedings — Commissioner’s Judgment — Review on Certiorari.
    On certiorari to review a commissioner’s judgment in summary-proceedings to recover possession of land, the questions of fact are not open for review, the case being reversible only for errors of law apparent on the face of the return.
    2. Landlord and Tenant — Rent Due — Garnishment.
    In view of 1 Comp. Laws 1897, g 1009, suspending a creditor’s right of action for money garnished during the pendency of the proceedings, a landlord is not entitled to sue to recover possession of leased premises for nonpayment of rent during the pendency of garnishment proceedings against the tenant by the landlord’s creditor.
    3. Same — Homestead Exemption — Notice to Tenant.
    The suspension of the landlord’s right of action is not affected by the fact that the tenant withheld the rent pending garnishment proceedings after notice that the landlord claimed it to be exempt as the proceeds of his homestead.

      4. Same — Collusion with Creditor.
    And the fact that the tenant informed the plaintiff in garnishment of his indebtedness to the landlord, and acted in collusion with him to enable him to collect his debt, is also immaterial.
    Error to Kent; Adsit, J.
    Submitted April 12, 1900.
    Decided May 2, 1900.
    Summary proceedings by Catherine O’Connor against James White to recover the possession of leased premises. From a judgment for complainant, defendant brings error.
    Reversed.

      Lombard & McAllister, for appellant.

      Nathan P. Allen (E. C. Watkins, of counsel), for appellee.
   Hooker, J.

The defendant rented premises from the complainant at five dollars per month. When the March rent became due, he was garnished at the suit of a judgment creditor of complainant. The complainant thereupon served the statutory notice, and began proceedings before a commissioner to recover possession of the premises for nonpayment of rent pending the garnishee proceeding; and the commissioner rendered judgment of restitution, which was affirmed on certiorari by the circuit court.

The circuit court seems to have treated the case as one to be heard de novo upon its merits, on the evidence returned by the commissioner, and accordingly filed a finding of fact and law. Our understanding is that this is not a proper practice. The decision of the commissioner upon controverted questions of fact is final, and cannot be reviewed, and the case can only be reversed for errors of law apparent upon the face of the return.

The garnishee proceedings appear to have been regular, and the complainant was apprised of them. She had notice of similar proceedings on one if not two prior occasions, and neglected to defend them, and was informed of this. The contention of her counsel appears to be that it was the defendant’s duty to disregard the garnishee proceedings and pay. the rent, and that, failing to do that, he was subject to ouster. The statute (1 Comp. Laws 1897, § 1009) suspends a creditor’s right of action for money garnished during the pendency of the proceedings, and we think that this statute should be construed to apply to actions of this kind, where the failure to pay'rent is excused by garnishment.

The commissioner held otherwise in this case, upon the ground that “the indebtedness sought to be reached through garnishment was the rental of a homestead, and exempt from execution, and that the same could not be impounded or held under garnishment proceedings during the pendency of the same. ” This is fallacious. The affidavit gave the justice jurisdiction in the garnishment case. Before it could be determined what the indebtedness was for, and whether subject to garnishment or not, a trial was necessary; and, when determined, the decision would be final, unless appealed from, not only against the garnishee, but the principal defendant also, if reasonably notified of the proceedings. The statute does not require the garnishee defendant to correctly determine in advance the question of liability, at his peril.

The learned circuit judge, in his finding of fact, found that the defendant had notice of the complainant’s claim that the rent was exempt, and acted in collusion- with the plaintiff in the garnishee proceedings. "We do not discover that the commissioner acted upon any such conclusion, and it would make no difference if he did. A debtor has a right to inform another of his indebtedness, and his motive in doing so is unimportant. There is no legal obligation arising from his relation to Miss O’Connor to keep the fact from her creditors, or to prevent him from aiding them to secure their claim against her by information of the fact. He did not conceal from her the pendency of the proceedings, and, while the disclosure does not show it,.there is no reason to believe that complainant’s claim that the money was exempt was concealed.

There seems to have been a bona ficle claim on the part of Miss O’Connor’s creditor that this rent was subject to garnishment, and he may be right about it. Her policy appears to be not to litigate that question directly, but to drive the garnishee defendant into the alternative of taking the risk of the litigation himself, or vacating the premises. The comments of counsel about the property of Miss O’Connor, and the oppression of counsel in compelling her to litigate to pay a debt admittedly just, and the implication that the magistrate would give her no chance, are out of place in the brief, as they furnish no aid in solving the questions of law upon which the case must turn. Her honest debt could doubtless have been paid for a moiety of the expense of this litigation.

The judgments of the circuit court and of the commissioner are reversed, with costs of all courts.

The other Justices concurred.


author: Long, J.

text:
    FAUL v. BEUCUS.
    Justices of the Peace — Attachment and Garnishment — Service and Return.
    1 Qomp. Laws 1897, § 731, relating to the service of writs of attachment issued from justice’s court, provides that if defendant cannot be found within the county, and has no last place of residence therein, a copy of the writ and inventory may be left with any person in possession of the goods attached; or, in case garnishment proceedings are commenced simultaneously with the issuing of the writ, and no goods are found on which to levy the writ, “then [service may be made] by leaving a certified copy of said writ with such garnishee defendant.” Held, that a return setting forth, merely, that defendant could not be found within the county, and had no last place of residence therein, nor any goods there subject to levy; that the officer had served garnishee summons on certain persons, and had served a copy of the attachment on a certain other person, who had acted as defendant’s agent,' — conferred no jurisdiction on the justice to render judgment against the defendant, even though the garnishee process did not issue until after the expiration of the time within which the attachment might lawfully be served.
    Error to Barry; Smith, J.
    Submitted April 12, 1900.
    Decided May 2, 1900.
    Attachment proceedings in justice’s court by George Eaul against Thomas Beucus and others, in which proceeding Frank F. Hilbert and others were garnishees. There was a judgment, for plaintiff, and the principal defendants removed the cause to the circuit court by certiorari. From a judgment there for plaintiff, defendants bring error.
    Reversed.

      Lombard & McAllister, for appellants.

      G. 8. Palmerton, for appellee.
   Long, J.

The above cause was commenced in justice’s court by suing out a writ of attachment on March 7,1899, against the principal defendants. On March lGth following, three affidavits in garnishment were filed with the justice by the plaintiff, and a writ of garnishment was issued in each case against the garnishee defendant. The writs of garnishment were in the usual form. The return to each of these writs recites that the writ was served on the garnishee defendant therein named by reading the same to him, and leaving him a copy, and paying him his fees of 50 cents. The attachment by which the proceeding was commenced against the principal defendants was not served on any one of the principal defendants, and no copy of the attachment was served on any one of the garnishee defendants. The officer’s return indorsed on the writ of attachment recites:

‘ ‘ I diligently searched for the within,-named defendants, or one of them, within said county of Barry, during all the time that I could legally do so, and was not able to find the said defendants, or either of them, within said county, nor find that said defendants, or either of them, had any last place of residence within said county’< of Barry; nor could' I find any property within said county of Barry belonging to said defendants, or either of them, to levy upon. I do further certify that I served garnishee summons on Frank F. Hilbert, Charles S. McIntyre, and Eddie McArthur, said to have property, money, and effects in their hands and under their control belonging to said defendants. I do further certify and return that I served a copy of the within attachment, duly certified by me, on B. S. Holly, who has acted in the capacity of agent for said defendants, on the lltli day of March, 1899.”

It appears that on the return day of the writ of attachment, no one appearing for defendants, the cause was adjourned to April 24th. On that day, none of the defendants appearing, the justice rendered judgment in favor of plaintiff and against the principal defendants in the sum of $16.86 and $4.08 costs. The garnishee defendants each filed disclosures, by which it appeared that garnishee defendant Hilbert was indebted to the principal defendants in the sum of $7.79, defendant McIntyre in the sum of $7.35, and defendant McArthur in the sum of $7.35. The justice, on the next day after the entry of judgment against the principal defendants, entered judgments against the garnishee defendants for the amount of plaintiff’s judgment against the principal defendants. The principal defendants removed the cause to the circuit court for Barry county by writ of certiorari. On the hearing there the judgment rendered by the justice was affirmed, and the defendants now bring the case into this court by writ of error.

The principal error assigned in the affidavit for the writ of certiorari is that none of the principal defendants was ever served with process; that no property of the principal defendants, or of any other party, was seized or attached under the writ of attachment; that none of the principal defendants ever appeared in the cause, nor did any of them waive service of said writ; that, therefore, the justice never had jurisdiction of the persons or property of the principal defendants, and could render no judgment against them; and, in consequence thereof, the judgments rendered against the garnishee defendants were void.

The only question in the case is whether the justice had jurisdiction. 1 Comp. Laws 1897, § 731, provides for service of attachment in such cases as follows:

“If the defendant cannot be found within the county, the constable shall leave a copy of the attachment and inventory, certified by him, at the last place of residence of the defendant, if there be any such place within the county, and, if not, then by leaving the same with any person in whose possession such goods and chattels, moneys and effects, may be found; or, in case garnishee proceedings shall be commenced simultaneously with the issuing of said writ, and no goods, chattels, or effects shall be found on which to levy such writ, then by leaving a certified copy of said writ with such garnishee defendant.”

The proceeding is statutory, and must be strictfy followed, to give the justice jurisdiction. No service was had as provided by the statute above quoted. All the service that was made on the principal defendants was by leaving a certified copy of the writ with one B. S. Holly, who, the constable says, “has acted in the capacity of agent for said defendants.’.’ Neither was there any service of the attachment and inventory on the garnishee defendants, as provided by the act. This is not such service as required by the statute, and the justice had no jurisdiction to render judgment in the cause.

The judgment of the circuit as well as of the justice’s court must be reversed, and a judgment entered here in favor of defendants for the costs of both those courts, as well as of this court.

The other Justices concurred.


text:
    RENAUD v. CITY OF BAY CITY.
    1. Evidence — Marital Relations — Public Policy.
    In an action by a married woman for personal injuries, claimed to have resulted in a miscarriage, it was proper to exclude an answer to the question, asked her on cross-examination, whether or not she had intercourse with her hus- . band after the accident and before the miscarriage, the testimony being inadmissible on grounds of public policy.
    2. Trial — Instructions.
    Refusal to give a requested instruction is not error, where the subject-matter is substantially covered in the general charge.
    3. Same — Credibility op Witnesses — Comments op Court.
    It was error for the court, in an action for injuries claimed to have been caused by a defective sidewalk, to comment in his charge to the jury upon the fact that certain witnesses, officers of defendant city, swore that the walk in question was perfectly safe, yet were continually repairing it, and rebuilt it immediately after the accident to plaintiff.
    Error to Bay; Maxwell, J.
    Submitted April 12, 1900.
    Decided May 2, 1900.
    Case by Odile Renaud against the city of Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Brakie J. Orr, for appellant.

      H. O. Haller and I. A. Gilbert, for appellee.
   Hooker, J.

The plaintiff claims to have been injured upon a sidewalk, for which she recovered a judgment for $1,000, and the defendant has appealed. There are many assignments of error, which we have found it necessary to examine and consider, but, with one or two exceptions, it would be unprofitable to discuss them, as most questions raised are covered by former decisions.

The question asked plaintiff concerning her marital relations was opposed to public policy, and an answer was, therefore, properly excluded. 1 Greenl. Ev. §§ 333-335, 344.

Complaint is made of the refusal to give the defendant’s third request, but it seems to have been substantially covered by the charge, which we have frequently said was a better practice that to give disconnected requests. Aikin v. Weckerly, 19 Mich. 501; Fisher v. People, 20 Mich. 144; Kimball & Austin Manfg. Co. v. Vroman, 35 Mich. 330 (24 Am. Rep. 558); Marquette, etc., R. Co. v. Marcott, 41 Mich. 439 (2 N. W. 795).

The conclusion of the charge was as follows:

“Now, gentlemen, I wish to add one word. The city is bound to make safe all of its sidewalks. How often an inspector shall pass over the walk, what efforts he shall make to ascertain their condition, is left without an arbitrary rule. They ought to be reasonably efficient, and, above all things pertaining to that subject, the inspector must be competent. He must be so competent that he can tell whether a walk is in repair or not in repair, and whether it is reasonably safe to pass upon or not safe. In this case there are some funny things. Men come here,— city’’ officers, — and swear that the walk was perfectly safe, and go right along and repair it, and keep repairing it, and almost immediately rebuild it. These things may be considered by you in this case as affecting the thoroughness and competency of these inspectors. ”

It is claimed for the defendant that this misstated the testimony upon the subject of repairs, and laid down too strict a rule as to the obligation of the city in regard to the condition and inspection of the walk, and that it was an improper expression of opinion upon the merits of the case, having a tendency to prejudice the juiy. We think this paragraph in the nature of an addendum should have been omitted. Without saying that a circuit judge may not discuss the testimony in his charges, such discussions should not be of a character to create a prejudice. See 3 Comp. Laws 1897, § 10243, and note. We think such was the tendency here, and that the implication that the testimony of the defendant’s witnesses was inconsistent with their admitted conduct was strong. The statement that the city must make safe all its sidewalks, standing alone, was too stringent a rule. This was qualified in the charge, however.

We feel constrained to reverse the judgment. A new trial is ordered.

The other Justices concurred.


text:
    VOSS v. LIPPERT.
    Appeal — Accounting—Affirmance of Decree.
    The decree of the circuit court dismissing a bill for an accounting, for the reason that defendant was shown to have fully-accounted to complainant before the filing of the bill, was affirmed.
    Appeal from Macomb; Eldredge, J.’
    Submitted April 13, 1900.
    Decided May 2, 1900.
    Bill by John Voss against William Lippert, Jr., for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Diuight N. Loioell, for complainant.

      O. C. Lungerhcmsen (Byron R. Er shine, of counsel), for defendant.
   Long, J.

This bill was filed for an accounting. It is claimed* by the bill that the complainant is a Prussian,' who emigrated to Canada in 1855, where he accumulated some property; that in 1866 he came to Michigan, and, being an unmarried man, made his home with the parents of the' defendant, the mother of defendant being his sister; that when he came to Michigan he had $1,000 in gold, and exchanged it for United States currency, receiving therefor $1,900; that some time after this he received $500 from parties in Canada; that he had no proficiency in speaking the English language, and defendant conducted his business for him, loaning his money, receiving money paid in, and loaning it out again, and reporting to complainant from time to time the amounts paid in and to whom loaned; that defendant continued to do business for him until shortly before the filing of this bill, in February, 1898; that shortly before that time defendant informed him that he had notes and mortgages in his hands belonging to complainant amounting to between $12,000 and $13,000; that, trouble arising between them, he left the home of defendant, who turned over to him $5,850. It is also charged in the bill that the defendant, while acting as the agent of complainant, took mortgages in his own name, and reported them to complainant as mortgages belonging to complainant. It is also charged that the defendant, combining and cooperating with others, has also loaned complainant’s money, and taken mortgages and securities in the names of otherá, but in trust for himself; and that he wrongfully withholds from complainant said mortgages, so that he has now the sum of $7,000 belonging to complainant.

It is the claim of the defendant that he never had chai’ge of the affairs of the complainant until 1890, when the latter went to Germany with defendant’s father and mother; that after complainant’s return he turned all moneys collected over to him, as well as his securities; that complainant kept them in his trunk until 1895, when the defendant purchased a safe, after which time complainant deposited his papers there for safe-keeping; that he never loaned any of complainant’s money, afid took securities in his own name or in the name of any other person. It is also the claim of defendant that, before going to Germany, the complainant and defendant’s mother had a settlement of all their affairs; that, acting together, they gave him (defendant) a list of securities that they had a partnership interest in, and he entered the same in a book, and gave each a list of such securities; that, upon complainant’s return from Germany, he and complainant had a settlement, and from that time to November, 1897, he looked after complainant’s papers, and received a commission of 1 per cent, each year; that they settled from year to year, and a new list of securities was entered upon the books, and all moneys paid in were at once paid over to complainant; that, after the difficulties between himself and complainant in the fall of 1897, the complainant left his house, and he then turned over.to him and his agent all the securities and moneys in his hands belonging to complainant.

The testimony was taken in open court, and upon the final hearing the court dismissed the complainant’s bill. In this we think the court was not in error. In our judgment, the complainant has utterly failed to make out his case. It is a pure question of fact, and we do not feel called upon to enter upon the discussion of the facts. The court below saw the witnesses and heard their testimony, and arrived at the conclusion that the defendant had turned over to complainant all the moneys and securities belonging to him. We think no one can read the record without arriving at the same conclusion.

The decree below must be affirmed, with costs.

The other Justices concurred!


author: Grant, J.

text:
    SMITH v. MARTIN.
    Married Women — Antenuptial Contracts — Liability of Husband.
    Article 16, § 5, 'of tlie Constitution, which provides that the property of a married woman shall not be liable for her husband’s debts, and 3 Comp. Laws 1897, § 8693, which provides that “the husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property,” abrogate the common law making a husband liable for his wife’s antenuptial contracts.
    Error to Hillsdale; Chester, J.
    Submitted April 13, 1900.
    Decided May 2, 1900.

      Assumpsit by Edward J. Smith against William T. Martin and Cora Martin, his wife, for goods sold and delivered to the wife prior to the marriage. From a judgment for plaintiff, defendants bring error.
    Reversed.

      F. A. Lyon, for appellants.

      B. F. Sheldon and Sampson & Barre, for appellee.
   Grant, J.

The sole question presented upon this record is, Have the Constitution and act relative to the rights of married women abrogated the rule of the common law that a husband is liable for the antenuptial contracts of his wife? The court below held that they had not: By section 5, art. 16, of the Constitution, all the property of every female acquired before marriage, and all property acquired after marriage by gift, grant, inheritance, or devise, remains her property during coverture, and is not liable for the husband’s debts, and may be devised and bequeathed by her as if she were unmarried. The first section of the married woman’s act of 1855 goes further than the constitutional provision, and authorizes the wife to contract, sell, transfer, mortgage, and convey her separate property. The third section provides for the bringing of actions by and against a married woman in relation to her sole property. The fourth section reads as follows:

“The husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement, and, in any case herein authorized, the cause of action shall be deemed to have accrued from and after the passage of this act.” 3 Comp. Laws 1897, § 8693.

It has been very generally held by the courts of the States that the married women’s acts, which make them the absolute owners of all their property, confer upon them the right to make contracts with reference thereto, and make them liable thereon, do not abrogate the common-law incidents of the marital relation which are not within the evident purpose of the act. Among these is the common-law liability of the husband for his wife’s antenuptial contracts. Kies v. Young, 64 Ark. 381 (42 S. W. 669, 62 Am. St. Rep. 198), and cases cited. Counsel for plaintiff rely much upon the fact that there is no express abrogation in the married woman’s act of this common-law liability, and upon the rule that statutes in contravention of the common law must be strictly construed. Courts will not hold the principles of the common law abrogated by implication, unless the common law and the statute are in direct conflict. The chief justice, in Kies v. Young, supra, dissented, applying the maxim, “Gessante r alione, cessat etiam lex.” Counsel, in their briefs, have not given us the benefit of the statutes of other States upon which the decisions are based. To have a controlling influence, the statutes of those States must be substantially like our own.

Counsel cite Bertles v. Nunan, 92 N. Y. 165 (44 Am. Rep. 361), where the contention was that the married woman’s act of that State changed by implication the common-law rule that, when land was deeded to husband and wife, they took by the entirety. The court held otherwise, saying: “The court certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished, and the best civilization of any age or country has grown up.” We are in entire accord with this statement; but there is a change by implication, and the duty of the courts is imperative to determine in each case what the manifest intent of the legislature was. If there is a plain conflict between the common law and the statute, the latter must control. There is nothing in the New York statute or in ours to indicate any purpose to change the common-law rule as to tenancy by the entirety. See Fisher v. Provin, 25 Mich. 347.

In both the cases above cited, the court held that, under the married woman’s acts in those States, the common-law right of tenancy by the common curtesy remains, while we have held that, under our statute, tenancy by the curtesy is abolished. Tong v. Marvin, 15 Mich. 60.

We have examined the statutes of several States whose decisions are cited to support plaintiff’s contention, and we find none which contains provisions like that of section 8693 óf our statute. The Arkansas decisions differ from ours in other respects. That court holds that, under their statute, the husband and wife cannot contract with each other, while this court has held to the contrary. Randall v. Randall, 37 Mich. 563. The decisions of the court prior to 1883 upon the effect of this act are cited in Edwards v. McEnhill, 51 Mich. 160 (16 N. W. 322). Decisions since rendered are in harmony with those.

At the common law, the husband is not liable for any postnuptial contracts made by the wife in regard to her separate property, but is only liable for her contracts dum sole. Unless, therefore, the statute included antenuptial contracts, there would seem to be some force in the contention that there would be none to which it could apply. However this may be, the contract of a feme sole remains her contract when she becomes a married woman, and is then the contract of a married woman. We think the above section clearly includes those contracts which she made while a feme sole. They relate to her sole property, become the contracts of a married woman, and are within the statute declaring that the husband cannot be sued upon any contract made by her in relation to her sole property.

Judgment reversed, and entered in this court for defendants.

The other Justices concurred.


author: Moore, J.

text:
    LELLIS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Negligently-Loaded Car — Connecting Lines — Death op Switchman — Liability.
    A railroad company which delivered to a connecting line, for transshipment, a car of lumber negligently loaded, is not liable for the death of a switchman of the latter company, caused by the shifting of the lumber, where the accident happened after it became the duty of the latter company to provide for the inspection of the car.
    2. Same — Negligence op Inspeotor — Fellow-Servants.
    Where a railroad company provided a competent inspector to determine if car loads of lumber received from other roads were properly loaded, and the inspector either failed to make an inspection of a car which was not securely loaded, or made a faulty one, and some of the lumber fell off and killed one of its switchmen, the company is not liable, as the accident was due to the negligence of a fellow-servant;
    Error to Washtenaw; Kinne, J.
    Submitted November 16, 1899.
    Decided May 15, 1900.

      Case by Cecelia R. Lellis, administratrix of the estate of Stephen Lellis, deceased, against the Michigan Central Railroad Company and the Ann Arbor Railroad, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lehman Bros. & Stivers (Navin & Sheahan, of counsel), for appellant,

      Laivrence & Butterfield, for appellee Michigan Central Railroad Co.

      T. W. Whitney (Alexander L. Smith, of counsel), for appellee Ann Arbor Railroad.
   Moore, J.

Stephen Lellis, plaintiff’s intestate, was a switchman at work in the yards of the Michigan Central Railroad Company in Detroit. A car load of timber had been loaded at Cadillac, Mich., upon a flat car. The Ann Arbor Railroad Company brought this car to Ann Arbor, where it was transferred to the Michigan Central Railroad, and conveyed by it to Detroit. There were pockets on the sides of the flat car, 4 inches by 4 inches in size, into which to put stakes to hold the load in place. It is claimed the persons loading the car used for stakes 2x4 scantling, joining the tops together by nailing a strip of board thereto. During the switching of the car in the yard at Detroit, one or more of these stakes gave way. Some of the timbers fell upon Mr. Lellis, who received injuries from which he soon thereafter died. His widow was appointed administratrix, and brought.this suit. The circuit judge directed a verdict in favor of the defendants. The case is brought here by writ of error.

It is the claim of the defendants that the stakes are not part of the equipment of the car, but are part of the load. One witness so swore. It is also claimed that it is a matter of common knowledge upon the part of those at all familiar with the loading and shipping of lumber and timber upon flat cars in this State that the stakes are no part of the car, but the stakes are furnished by the shipper, and, when the timber or lumber is unloaded, the stakes are not returned with the empty flat car, but a new set of stakes is provided each time the car is loaded. It is said that, the stakes being regarded as a part of _ the load, the company was not liable. The Michigan Central Railroad employed an inspector, whose duty it was to inspect the cars upon their arrival at the junction before the cars passed into the switching yard. This inspector, Mr. Fen-wick, was on duty when this car arrived. It was the duty of the inspector, if he found a car was not in a condition to go forward safely, to mark it, “Rejected,” and send it to the transfer house. A record is kept of the rejected cars, but no record is kept of those which are not rejected. The record did not show that this car was marked, “Rejected.” It is said, if the inspection was faulty, and would have revealed the defect if the inspector was not negligent, the negligence of the inspector was the negligence of a fellow-servant, and the plaintiff cannot recover,—citing Smith v. Potter, 46 Mich. 258 (9 N. W. 273, 41 Am. Rep. 161); Dewey v. Railway Co., 97 Mich. 329 (56 N. W. 756, 22 L. R. A. 292, 37 Am. St. Rep. 348); Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32).

The defendant, the Ann Arbor Railroad Company is not liable, under the authority of Fowles v. Briggs, 116 Mich. 425 (74 N. W. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537). The question whether it was the duty of that company to' furnish and equip its cars with stakes is not necessarily in the case, and upon it, therefore, we express no opinion.

If the defendant the Michigan Central Railroad Company is liable, it must be because it failed to provide inspection which would have disclosed to the inspector the dangerous condition of this load. It is established by the testimony that this company did provide a competent inspector. He either failed to make any inspection, or made a faulty one. In either case, under the decisions of this court, the defendant is relieved from any liability. This inspector and Mr. Lellis, the switchman, were fellow-servants engaged in the same common employment. This is not a case involving the duty to furnish safe machinery, and to see that it is kept in proper repair; it is a case involving the duty of a railroad company which is daily receiving, as it is bound to do, cars from other companies for immediate transshipment over its own road. Its duty towards its employés is to provide a competent inspector to inspect these cars when so received, and to determine whether they are in proper condition for transshipment,— this for the reason, as is well known, that cars are apt to become injured while being transported. Immediate supervision in such cases by “either the ultimate or representative principal” is impossible. When a company has employed such £,n inspector, it has performed its full duty. The rule is a just and reasonable one. Employés understand this, and contract with reference to it. They know that the master is not liable where it has employed competent servants to perform the work of the same common employment. ' The rule is so well stated by the late Justice Campbell in Smith v. Potter, 46 Mich. 258 (9 N. W. 273, 41 Am. Rep. 161), that I quote it:

“In such a business as requires the employment of a multitude of persons, beyond the possible constant supervision of either the ultimate or representative principal, there can be no negligence, without the failure to use such precautions in choosing agents and guarding against perils as diligent prudence and foresight require. When the principal has done all that can be reasonably required of him to prevent risks to his servants, he has done all that he owes them. In the present case he appears, beyond dispute, to have done all this; and if the inspectors committed an error, or were guilty of negligence, he is not to blame for it. The work done is .to be done at all hours, and at every place where there are railroad connections with other roads. It is not a duty of management or general supervision, but a task for which nothing is required but fidelity, and mechanical knowledge of a comparatively limited kind. It is such work as would seldom be delegated to an officer of extensive responsibility, who has other interests to look after. But, whatever be its quality, it was in this case not claimed to have been placed in wrong hands. Nothing more could be asked of the employer.”

The facts in that case are not materially different from those in the present.

It was also said in Dewey v. Railway Co., 97 Mich. 334 (56 N. W. 757, 22 L. R. A. 294, 37 Am. St. Rep. 351), Mr. Justice Long delivering the opinion :

“The master must undoubtedly exercise care in the selection of inspectors to see that cars are not improperly loaded or overburdened, so that they are dangerous to employes; but, after this has been done, it cannot be claimed that the master is to be held responsible for the faithful performance of the inspectors’ duty. Any other rule than this would make railroad companies insurers of the lives and limbs of employés.”

Is not this case within the reasoning of the Potter Case? In that case the deadwoods of one car, which was rather lower than the other, had been loosened, and were leaning down, so that the deadwoods of the lower car went partially under those of the higher one, catching the plaintiff’s arm. Whether the car was started out by the other road in this condition, does not appear. Would it have made any difference had this been the case ? Is the receiving railroad liable when another road has transferred to it a car defective in construction, and not liable when the defect has occurred during the transshipment? Is not the duty of the inspector the same in both cases ? Is he not as much bound to reject the car in one case as in the other ? Can the receiving company act in any other way than through an inspector ? It does not have, cannot have, and is not by law required to have any other employe than an inspector to determine when cars received from another road are in condition fit for transportation over its own road. Suppose a case where the stakes used were originally sufficient, but one or more had become broken by accident in transportation, and new stakes supplied by the trainmen, which were insufficient; would the receiving road be liable for the failure of judgment or neglect on the part of the inspector ?

The case of Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111), has no bearing upon the question now before the court. The question of inspection now before us was not involved in the case. The brake chain, furnished by the defendant company itself, was found to be insufficient in size and strength. The company sought to defend on the ground that it had provided a suitable person to test and inspect the chaih. The Potter Case was not mentioned in the decision, and there was no occasion for referring to it.

In Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572), the sole question was the duty of the defendants — ■ lumber manufacturers — to construct safe docks. Held, that the duty could not be' delegated to an inspector. That decision has nothing to do either with the facts or the principle of this. Smith v. Potter, supra, was cited with approval and distinguished. Mr. Justice Morse, who wrote the leading opinion, cast no "doubt upon the Potter Case. Chief Justice Sherwood concurred in the result. Justice Champlin concurred in reversing the judgment because in that case he did not think the duty of inspection could be delegated, while Justice Campbell concurred in reversal for errors upon the record. The only doctrine, therefore, established by that case is that the defendants could not delegate their duty to construct safe docks, so as to relieve themselves from liability. Smith v. Potter, supra, has been cited with approval by this court in the following cases: Jarman v. Railway Co., 98 Mich. 135 (57 N. W. 32); Brewer v. Railway Co., 56 Mich. 627 (23 N. W. 440); Hunn v. Railroad Co., 78 Mich. 513, 518 (44 N. W. 502, 7 L. R. A. 500); Peterson v. Railway Co., 67 Mich. 102 (34 N. W. 260, 11 Am. St. Rep. 564); Hewitt v. Railroad Co., 67 Mich. 61 (34 N. W. 659); Illick v. Railroad Co., 67 Mich. 632 (35 N. W. 708); Adams v. Iron Cliffs Co., 78 Mich. 271, 289 (44 N. W. 270, 18 Am. St. Rep. 441); Van Dusen v. Letellier, 78 Mich. 492, 504 (44 N. W. 572); Balhoff v. Railroad Co., 106 Mich. 606, 614 (65 N. W. 592); McDonald v. Railroad Co., 108 Mich. 7 (65 N. W. 597).

The judgment is affirmed.

The other Justices concurred.


text:
    WYANDOTTE ELECTRIC LIGHT CO. v. CITY OF WYANDOTTE.
    1. Municipal Corporations — Franchise—Duration of Grant.
    Where a nuinicipal corporation grants to an electric-light company an easement in its streets for the maintenance of poles and wires, without specifying the time of user, the grant is good for the corporate lifetime of the grantee.
    2. Same — Electric-Light Companies — Right to Question Corporate Existence.,
    Whether an electric-light company, incorporated, not under chapter 191, 2 Comp. Laws 1897, relating specifically to the formation of such companies, but under chapter 188, relating to the incorporation of manufacturing companies generally, is authorized to exercise a franchise for manufacturing electric light, and selling it to the inhabitants'of-a municipality, is a question which cannot be raised by the municipality granting the use of its streets for that purpose; the right to question the validity of corporate existence being open only to the State.
    3. Same — Use of Streets — Poles and Wires — Regulations.
    Municipal authorities may adopt reasonable rules and regulations for the erection and maintenance of the poles and wires of electric-light companies.
    Appeal from Wayne; Grove, J., presiding.
    Submitted January 9, 1900.
    Decided May 15, 1900.

      Bill by the Wyandotte Electric-Light Company against the city of Wyandotte and others to restrain interference with complainant’s poles and wires. Defendants filed an answer in the nature of a cross-bill, praying that complainant be required to remove such poles and wires from the streets. From a decree for complainant, defendants appeal.
    Affirmed.
    The complainant was organized September 19, 1889, with four incorporators. Its articles of association recited that it was incorporated under Act No. 232, Pub. Acts 1885, as amended by Act No. 170, Pub. Acts 1889 (2 Comp. Laws 1897, chap. 188), entitled:
    “An act to revise the laws providing for the incorporation of all manufacturing companies (except such as are contemplated by Act No. 42 of the Session Laws of 1867, which provides for the incorporation of persons or corporations engaged in the manufacture of salt), and mercantile companies, or any union of the two, and to fix the duties and liabilities of such corporations.”
    Its declared purpose was the manufacture and supply of electricity for power, heating, and lighting purposes. Its capital was $25,000, and its term of existence fixed at 30 years.
    On September 25th it addressed to the mayor and common council of the city of Wyandotte the following communication :
    “ Gentlemen: We, the undersigned, a body corporate under the laws of the State of Michigan, do most respectfully request your honorable body to grant us a franchise to erect and maintain poles and wires through the streets of Wyandotte under the direction of the committee on streets; and your petitioners will ever pray,” etc.
    The records of the common council show that, “on motion of Alderman Gartner, the prayer of petitioner was granted, by the following vote: Ayes, 7; nays, none. ”
    Under the franchise thus conferred, the complainant had, until the filing of this bill, September 12, 1898, continued to enjoy its plant, and extend its service to the inhabitants of defendant city. This extension had been made by the acquiescence of the city, without any further action or any attempt upon its part to control the location or erection of poles. Complainant then had about 1,700 lights, and was engaged in extending its poles and wires quite extensively to other parts of the city. On August 3, 1898, the common council passed a resolution directing the city clerk to notify complainant tó remove from the streets and other public places of the city all unused electric wires, all unused hoods, appliances for electric lights, and all other unused electric-wiring appliances within 10 days from the date of the passage of the resolution. It further instructed the clerk to notify complainant to remove all electric wires that were not properly insulated, and all from which the insulation had been worn or removed, within 20 days from the passage of the resolution. This notice was served on August 4th. At the time this action was taken, complainant was engaged in removing these unused wires, hoods, and appliances. It continued such removal after receiving such notice, and claims to have complied therewith as far as practicable.
    On August 17, 1898, the common council adopted a resolution revoking and canceling “ all previous licenses, permissions, or other acts of said common council giving complainant permission or authority to erect poles, wires, etc., in the streets, alleys, and other public places of the city, until it secures from the common council a franchise or ordinance giving it permission and authority so to do.” This notice was duly served. Complainant replied, insisting upon its rights; that the action of the common council was null and void; but saying that, if the council would present the terms of the proposed new agreement, it would be glad to consider it, in the hope that the matter would be disposed of satisfactorily to both parties. To this communication the defendants made no answer, and, after waiting 10 days, complainant filed this bill, claiming that it had a contract with the city co-extensive with its life, subject to the reasonable regulations of the common council with reference thereto, and praying for an injunction restraining the proposed action of the defendants. The defendants answered, claiming the benefits of a cross-bill, insisting that the petition and action of the common council in 1889 created a mere license, revocable at the will of the defendants; that such license was revoked by the resolution of August 17th; and praying that complainant be decreed to remove its poles and wires from the streets, and be restrained from any further use thereof. The case was heard upon pleadings and proofs taken in open court, and decree entered for the complainant.

      Edwin F. Conely and Orla B. Taylor, for complainant.

      Charles H. Marr (Elliott G. Stevenson and Robert F. Eldredge, of counsel), for defendants.
   Grant, J.

(after stating the facts). There is one controlling question in the case. Upon its determination depend the rights of the parties. It can, perhaps, be better stated by stating the several contentions. The defendants contend that complainant, by organizing under the general manufacturers’ act, obtained no franchise direct from the legislature to use the streets and highways, such as it would have acquired under the electric-light companies’ act. Their second contention results from the first, namely, that the city had no authority to grant the franchise claimed by complainant. The complainant contends :

1. That the defendant city cannot make this collateral attack upon its act of incorporation; that the State had for nine years recognized the validity of its incorporation, and that the State alone is the party which can complain.

2. That the city is estopped to claim in this suit that the complainant ought to have been organized under some other statute, or ought not to have exercised the franchise of manufacturing and vending electric light to its inhabitants.

If complainant were organized under chapter 191, 2 Comp. Laws 1897, entitled. “Electric-Light Companies,” it would be clearly entitled to the relief asked. It would come within the doctrine enunciated in Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87), and Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104). Section 7141, 2 Comp. Laws 1897, expressly gives to electric-light companies the authority—

“To lay, construct, and maintain conductors for conducting electricity through the streets, lands, and squares of any such city, town, or village, with the consent of the municipal áuthorities thereof, under such reasonable regulations as they may prescribe; _ and such corporation may make all such contracts and by-laws as may be deemed necessary and proper to carry into effect the foregoing powers.”

By this statute electric-light companies are given the same rights in the streets as are telephone companies, when the assent of the municipality is obtained. An incorporation under this act, a petition to the city to erect poles and wires, or for a franchise for that purpose, and the grant of the same by the city, would make a contract binding for the life of the corporation. It would be immaterial that no time for the existence of the right or the franchise was specified. The grant in such case would be limited to the period of existence fixed by the charter. If a railroad company were organized for a period of 30 years, and a party, natural or corporate, should grant it a right of way without specifying the time of user, the grant would be for the lifetime of the corporation. The law would imply that both parties contracted with reference to its period of existence. The same rule is applicable here. St. Clair County Turnpike Co. v. Illinois, 96 U. S. 63, 68.

The purposes for which complainant was organized are precisely those covered by the electric-lighting act. It could not carry on its proposed business without the use of the streets, and immediately applied to the city for such use. The city so understood it. That the inhabitants of a municipality should be supplied with light is as essential as that they should be supplied with water and telephones. They are all recognized by the law as necessary, made so by modern methods of living and business. The people of the State, through their legislature, have so determined by authorizing the formation of corporations for these purposes. Whether the defendant city knew under what act complainant was organized does not appear. Why complainant organized under this act is unexplained. No good reason appears or is suggested for its doing so. The only reasonable excuse is that somebody blundered. Whether the act under which it was organized would permit its incorporation, we need not determine. The State for nine years recognized its incorporation as valid. The defendant city dealt with it for the same time as a valid corporation, granted it the franchise as requested, permitted it to erect and maintain an extensive plant; and now, when the city has gone into the business of municipal and commercial lighting, seeks to crush it, to utterly destroy its property, and compel its patrons to become the patrons of the city, which charges more for its service than does complainant. It is needless to say that defendants are without equity, and that their contention ought not to prevail if the courts of equity have the power to prevent it.

We are of the opinion that the defendants are not in a position to raise the question of lack of power in the complainant, and that that question is one which the State alone can raise. Detroit City Railway v. Mills, 85 Mich. 634 (48 N. W. 1007), and authorities cited in paragraph 2 of the opinion, page 647. Where national banks have exceeded their authority in taking securities, the United States Supreme Court held that the parties interested could not complain so long as the government did not. National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99. Applying the same rule to this case, defendants cannot complain so long as the State does not. The contract is not ultra vires the corporation, but, on the contrary, is one expressly authorized by the statute above cited and the charter of the city. It now seeks to interpose a mere technicality to destroy a valuable property. This courts of equity will not permit. “A court of equity is always reluctant in the last degree to make a decree which will effect a forfeiture.” National Bank v. Matthews, 98 U. S. 621.

The common council are authorized to enact reasonable rules and regulations for the erection and maintenance of the poles and wires, and to compel the removal of those that are dangerous. This authority is fully defined in the telephone cases above cited.

Decree affirmed.

The other Justices concurred.


text:
    DONOVAN v. DAIBER.
    1. Brokers —Sales —Future Delivery —Margins —Gambling Contract — Question for Jury.
    Under 3 Comp. Laws 1897, § 11373, making it unlawful for persons to contract for the purchase or sale of stocks, grain, etc., on margins, without any intent to receive or deliver the property so bought or sold, it was for the jury to say whether a contract, executed through a broker, purporting to be for the sale of wheat on margins for future delivery, was a valid undertaking, where the broker’s memorandum stated that in all transactions actual delivery was contemplated, and his testimony was to the effect that in the particular transaction he did not know but that the seller possessed the wheat, and the seller testified that it was simply a gambling contract, and was so understood by all the parties.
    2. Same — Unlawful Intent — Mutuality.
    In an action by a broker to recover loss on the sale of wheat for future delivery on margins, the fact that defendant intended merely to speculate on the rise and fall of prices did not make the contract void under 3 Comp. Laws 1897, § 11373, prohibiting such contracts, where plaintiff did not participate in such intention.
    3. Same — Validity of Contract — Ownership of Property Sold.
    A contract for the sale of grain for future delivery is not void under said statute merely because the seller has not the grain to deliver, he having the right to procure the same in the market before the time fixed for delivery.
    Error to Wayne; Hosmer, J.
    Submitted February 6, 1900.
    Decided May 15, 1900.

      Assumpsit by James H. Donovan against Philip Daiber for money paid to defendant’s use. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was a member of the Detroit Board of Trade. His business was that of a commission merchant, buying and selling wheat and other produce upon commission. His version of the transaction is as follows: Defendant deposited with him $200, and gave him orders to trade for him in grain in Chicago. On June 14, 1897, defendant gave plaintiff an order to sell for him in Chicago 5,000 bushels of wheat for July delivery. Plaintiff had four or five houses in Chicago with which he dealt. He wired one of these houses to sell as directed; received from a Chicago correspondent a telegram stating that he had sold that day at 70|-. He showed the telegram to the defendant, and gave him a memorandum of the sale. This memorandum reads as follows:
    “We have this day made the following trade for your account, upon condition that James H. Donovan & Co. shall have the right to close this contract, at their discretion, whenever the usual margin of ten cents a bushel, or such other margin' as has been agreed upon, is not kept good with them. Further, it is understood and agreed that these transactions are made subject to the rules and regulations of the market in which they are made; and it is expressly understood that we solicit and will receive no business except with the understanding that the actual delivery of the property bought or sold upon orders is in all cases contemplated and understood:
    Quantity. Month. Articles. Price. . Remarks.
    Sold 5,000 July Wht. 70⅜ In Chicago.”
    On June 15th, defendant ordered plaintiff to buy 5,000 bushels for July delivery. Plaintiff wired one of his correspondents in Chicago, receiving a reply notifying him of the purchase, and showed it to the defendant. Other purchases and sales were made upon the same basis; plaintiff receiving a verbal order from defendant in each instance, wiring one of his correspondents in Chicago,-receiving a reply, showing it to defendant, and giving him a memorandum like the above. On some of these deals there were losses, and on some there were gains. On August 12th the market was such that it became necessary for defendant to advance more margins to plaintiff in order to keep his contracts good. Defendant declined to advance, and ' instructed plaintiff to close the contracts. This the plaintiff did, with the loss of $141.25, for which this suit was brought. Plaintiff had paid this to his Chicago correspondents. Plaintiff kept money with these correspondents to keep any contracts he made for his customers good.
    Defendant testified that he went to plaintiff because he had been recommended to him as a sharp broker; that he told plaintiff he had had bad luck, and was almost ruined; that he asked plaintiff if he could make money on the board of trade, dealing in or scalping wheat; that plaintiff told him he could; that he gave plaintiff $200, saying this was all the money he was going to invest in the speculation in wheat; that he would be glad to make money, but, if he lost it, that was all the money he wanted to lose,- and would not be responsible for anything beyond that; that plaintiff assented to this, and gave a receipt for the money. He testified that he told plaintiff he had no wheat to sell; that he just wanted to speculate” that he never knew the names of the parties plaintiff claimed to deal with in Chicago; that he never gave him a statement with the name of the party that plaintiff was dealing with; that he gave plaintiff $40 to hold his deals.
    The court instructed the jury that, if they believed the testimony of the plaintiff, and if they found the transactions were legitimate, involving the actual purchase or sale of grain for future delivery, he was entitled to recover. He also instructed the jury that if they found that defendant only agreed to invest the sum of $200, and that the transaction was a gambling one, verdict must be for the defendant. Plaintiff recovered verdict and judgment.

      Charles C. Stewart, for appellant.

      Chamberlain & Guise, for appellee.
   Grant, J.

(after stating the facts). The case comes squarely within Gregory v. Wendell, 40 Mich. 432, where contracts of this character were ably discussed by the late Justice Cooley, unless the act of 1887 (3 Comp. Laws 1897, § 11373) makes such contracts as were approved in that decision void. The statute is printed in the margin. Under the plaintiff’s testimony, he did not know whether defendant had 5,000 bushels of wheat to sell, and did not ask him. A party may make a binding agreement to sell that which he does not have. He may go into the market and purchase it, and he cannot defend, when called upon to perform his contract for future delivery, by saying, “ I did not have the property when I made the contract.” Commission merchants and others make such contracts, expecting to go into the market and buy. The same rule applies to his purchases. Both parties, under the testimony of plaintiff., understood that actual delivery of the property bought or sold upon these orders could be enforced. This agreement brings it without the statute. If, however, it was understood that this was a mere evasion of the statute, and neither party contemplated an actual sale or delivery, then the transaction was void, and plaintiff could not recover. Upon these points there was a conflict of testimony, which was submitted to the jury upon the theory of both sides. The jury sustained the plaintiff’s version, and there was testimony to sustain it. It is quite likely, and in fact very probable, that this was an evasion of the statute, and was so intended by the parties. But, where there is a conflict of testimony, the question becomes one for the jury, and appellate courts cannot interpose their judgment for that of a jury. Carland v. Telegraph Co., 118 Mich. 369 (76 N. W. 762, 43 L. R. A. 280). We cannot say that this was a mere wager, based upon the rise and fall of prices. Under the defendant’s contract to sell, as stated by plaintiff, plaintiff, or his correspondent in Chicago, could have recovered damages for failure to perform the contract. So, if the seller in Chicago had declined delivery to defendant on his purchase, defendant could also have recovered damages for failure to do so. Under defendant’s testimony, the contract was contra bonos mores, and within the prohibition of the statute. It ip not enough^that defendant intended merely a speculation upon margins, — a mere wager upon the rise or fall of prices, — and no delivery. Plaintiff must also have participated in that intention. Wagner v. Hildebrand, 187 Pa. St. 136 (41 Atl. 34); In re Taylor & Co.’s Estate, 192 Pa. St. 304 (43 Atl. 973, 18 L. R. A. 855); Anthony v. Unangst, 174 Pa. St. 10 (34 Atl. 284); Peters v. Grim, 149 Pa. St. 163 (24 Atl. 192, 34 Am. St. Rep. 599); Counselman v. Reichart, 103 Iowa, 430 (72 N. W. 490); Pratt v. Boody, 55 N. J. Eq. 175 (35 Atl. 1113); Waldron v. Johnston, 86 Fed. 757; Embrey v. Jemison, 131 U. S. 336 (9 Sup. Ct. 776); Whitesides v. Hunt, 97 Ind. 191.

Judgment affirmed.

The other Justices concurred.

       Comp. Laws 1897, § 11373: “That it shall be unlawful for any corporation, association, firm, copartnership, or person to keep, or cause to be kept by any agent or employé, within this State, any office, store, or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions, or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, when the party selling the same, or offering to sell the same, does not have the property on hand to deliver upon such sale, or when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased or to deliver the same if sold; all such acts, and all purchases and sales, or contracts and agreements for the purchase and sale, of any of the property aforesaid in manner aforesaid, and all offers to sell the same or to purchase the same in manner aforesaid, as well as all transactions in stocks, bonds, petroleum, cotton, grains, and provisions in the manner as aforesaid, on margins, for future or optional delivery, are hereby declared gambling and criminal acts, whether the person buying or selling, or offering to buy or sell, acts for himself or as an agent, employé, ®r broker for any firm, copartnership, company, corporation, association, or broker’s office.”


author: Montgomery, C. J.

text:
    CHRISTIAN v. SODERBERG.
    Mortgages — Foreclosure — Deficiency — Conclusiveness of Decree — Liability of Wife.
    A decree of foreclosure against a husband and wife on a note and mortgage executed by them, declaring that both are liable for the amount of the debt, is conclusive as to the liability of the wife, and she cannot interpose the defense, in proceedings for the issuance of an execution for a deficiency, that, as the note was not given with reference to her separate estate, she is not personally liable thereon.
    Appeal from Muskegon; Russell, J.
    Submitted February 6, 1900.
    Decided May 15, 1900.
    Bill by Antoine Christian against Sam A. Soderberg and Anna Soderberg to foreclose a mortgage. Complainant appeals from an order denying, as to defendant Anna, an execution for a deficiency.
    Reversed.

      James E. Sullivan ( Charles S. Marr, of counsel), for complainant.

      Arthur Jones, for defendant Anna Soderberg.
   Montgomery, C. J.

Defendants are husband and wife. On the 19th day of April, 1890, they made and executed a promissory note in the sum of $1,000, payable to complainant, and executed a mortgage collateral thereto. A bill was duly filed to foreclose this-mortgage, a subpoena served, together with a memorandum stating that a personal decree was sought against both defendants. Default was made by defendants, and a decree declaring both defendants liable for, and determining, the amount due, was duly entered. A sale of the mortgaged premises was had, and a deficiency reported. Application was thereupon made for an execution for deficiency. The petition was dismissed as against Anna Soderberg on the ground that she was a married woman when the note was given, and, as it was not given with reference to her separate estate, she was not personally liable upon it. Complainant appeals.

The defense attempted should have been interposed before decree. Haldane v. Sweet, 58 Mich. 431 (25 N. W. 383); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440); Ward v. Obenauer, 119 Mich. 17 (77 N. W. 305). It was competent for the court to determine the liability of the defendant by the decree. Simons v. McDonnell, 120 Mich. 621 (79 N. W. 916). A judgment or decree is binding upon a married woman. See Wilson v. Coolidge, 42 Mich. 112 (3 N. W. 285); Evans v. Calman, 92 Mich. 427 (52 N. W. 787, 31 Am. St. Rep. 606).

The order will be reversed, and an order entered for execution, with costs of this court.

The other Justices concurred.


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    KULLING v. KULLING.
    1. Vendor and Purchaser — Exchange op Land — Vendor’s Lien.
    Where an exchange of real estate was effected with the understanding that'one of the parties should be paid a difference in cash, for which no security was given him, he was entitled, in the absence of waiver, to assert a lien for such balance, if unpaid.
    2. Same' — Allowance op Interest.
    Where, in a suit to establish and enforce a vendor’s lien,'the complainant does not know to what time the purchaser has paid interest on the unpaid balance of the purchase price, interest will only be allowed from the time of filing the bill.
    Appeal from Wayne; Donovan, J.
    Submitted February 6, 1900.
    Decided May 15, 1900.
    Bill by Veronica Nulling against Frantz Nulling and wife to enforce a vendor’s lien. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Bloom & Bloom, for complainant.

      Overton L. Kinney, for defendants.
   Montgomery, C. J.

This is a bill to enforce a vendor’s lien. The defendant Frantz Nulling is the son of complainant. Complainant and her husband were in 1893 owners by the entirety of a house and lot in the city of Detroit. Defendant was the owner of a 60-acre farm in Macomb county, incumbered by a mortgage of $1,300. The parties made an exchange. The house and lot were called $1,600, the farm $2,100, and the equity $800. Defendant paid $300 of the difference, and complainant, who by the death of her husband has succeeded to all rights to the unpaid purchase price, asks a vendor’s lien. The record shows these facts with sufficient clearness. The circuit judge dismissed the complainant’s bill without prejudice, — evidently for the reason that he thought she should be left to her suit at law.

We think complainant is entitled to assert the lien. Carroll v. Van Rensselaer, Har. Ch. 225; Dunton v. Outhouse, 64 Mich. 419 (31 N. W. 411). We do not discover any waiver of the right to assert this lien as against defendants. Some payments of interest were made, but the record is not quite clear as to the amount. The bill states complainant’s inability to give the amount. Under these circumstances, we think the decree should provide for the payment of the unpaid principal, with interest from the date of filing the bill. Sale may take place after 60 days from the date of this decree. The complainant will recover costs of both courts.

The other Justices concurred.


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    NATIONAL MUTUAL BUILDING & LOAN ASSOCIATION OF NEW YORK v. BURCH.
    1. Building and Loan Associations — Foreign Corporation-Usurious Contract.
    2 Comp. Laws 1897, § 7584, which provides that the premiums, fines, and interest accruing to building and loan associations organized under our statute shall not be deemed usurious, does not aid the usurious contract of a foreign association' which would be in violation of our laws if executed by an association in this State.
    2. Same — Locus op Contract.
    A loan made by a foreign building and loan association, secured by mortgage on property in this State, which, by its terms, X>rovides for the payments to be made in the State of the association, yet which the parties understand will be paid to the local agent in Michigan, will be governed by the laws of this State as to interest.

      3. Same — Objection to Jurisdiction — Appeal.
    The right of a foreign building and loan association to enforce a contract in the courts, it not having filed a copy of its articles of incorporation, or paid a franchise fee, according to 2 Comp. Laws 1897, § 7592 et seq., passed after the execution of such contract, cannot be questioned on appeal, where the record does not show any objection to the jurisdiction in the court below, and the defendant does not appeal.
    Appeal from Muskegon; Russell, J.
    Submitted February 8, 1900.
    Decided May 15, 1900.
    . Bill by the National Mutual Building & Loan Association of New York against Albert H. Burcb, Esther A. Burch, and Francis L. Thorpe to foreclose a mortgage. From a decree in its favor for less than the amount claimed to be due, complainant appeals.
    Affirmed.

      Charles 8. Marr, for complainant.

      Bunker & Carpenter, for defendants.
   Moore, J.

In July, 1898, complainant filed a bill for the purpose of foreclosing a mortgage given to it by the defendants Albert H. Burch and wife upon lands in Muskegon, Mich. The complainant claimed there was due upon the inortgage at the time the decree was made upwards of §1,000. The circuit judge granted a decree in favor of the complainant for the sum of §157.14, from which decree the complainant has brought the case here by appeal.

It is claimed upon the part of the defendants that the bond and mortgage are usurious, and that the circuit judge gave a decree for all that complainant is entitled to. Defendants did not appeal. It is claimed on the part of the complainant that the contract is a New York contract, governed by the New York law, and is not usurious. The complainant is a corporation organized under the laws of New York. It claims to be a building and loan associa'ion. Its articles of association provide that the principal office shall be in the city of New York. Section 2, art. 4, provides: ‘ ‘ The board of directors may appoint a general advisory board and local advisory boards from among the shareholders at such places as they may deem best.” The articles provide the capital of the association to be accumulated shall be $50,000,000. The shares are $100 each. Three kinds of shares may be issued, among them:

“Paid-up shares of the par value of $100 will be issued for $70 per share, upon which there will be paid to the holder semi-annually, from the earnings of the share, interest at the rate of six per cent, per annum upon the purchase price. Such shares shall be liable for no further dues or assessments, and will be payable at the maturity of, and in the same manner as, installment shares of the same date.” Section 4, art. 8.

One person may hold 200 shares, enabling him to invest $14,000, upon which he shall receive 6 per cent, interest on the purchase price, and share in the profits the same as the installment shares. Another section provides:

“Interest at the rate of six per cent, per annum will be charged upon all loans, which interest must be paid monthly, with the monthly dues, on or before the last business day of each month, until the maturity of the pledged shares, and a premium of fifty cents per month will be charged on each one hundred dollars borrowed, which premium must be paid on or before the last business day of each month, for the period of eight years, or until the maturity of the pledged shares, should they mature before the expiration of the eight years. The premium for six months in advance will be deducted and retained from such loans.” Section 2, art. 13.

The mortgage follows the terms of this provision.

Article 13 provides for loans upon the withdrawal value of shares upon the same rates for interest and premiums as charged in the case of loans upon real estate. It is then provided:

‘ The residue of the loan fund not required by shareholders may be invested in such securities as the laws of New York permit for investment of savings banks deposits.” Article 14.

In 1890 the complainant appointed George W. Howell its agent at Muskegon, ‘ ‘ with full power and authority to solicit and receive applications for shares of our association in the said territory, and he is fully authorized and empowered to collect and receipt for entrance fees on all shares of the association so taken by him, but has no authority to collect any other moneys of the association.” A local board was organized at Muskegon. Mr. Howell was supplied with the literature of the company, and was active in its interests. His testimony, in part, is:

'' The association had a local board here. I organized it. There was a president, vice-president, secretary, treasurer, and board of appraisers. The object of the local board was to look after the interest of their business here in' Muskegon, — to do the local business of the association. It did this up to the time when the local board was dissolved. This local board was in existence at the time this mortgage was given by Mr. Burch, and for some time afterwards; I have forgotten how long. I think the first treasurer of the local board was W. R. Laughray. The local treasurer gave a bond, and collected the money here.”

Mr. Burch was the owner of a lot upon which there was a mortgage of $400. He was interviewed by Mr. Howell, and assured that, if he would become a member of the association, he could obtain from it a loan of $1,000, which would enable him to pay off the mortgage and build a house upon his lot, and could obtain this money at a cost of 6 per cent., and that all sums of money above that amount paid by him would be applied upon the principal of the loan. Mr. Burch says that, relying upon these statements, and for the sole purpose of borrowing the money to enable him to pay off the mortgage on his lot and build a house thereon, he subscribed for 10 shares of stock, and soon thereafter applied for a loan of $1,000. Mr. Howell’s version of the matter is not very different from that of Mr. Burch. He undoubtedly believed the statements he made to be true. The application for the loan was accepted by-the company, and for the purpose of securing its payment Mr. Burch assigned to the company his shares of the stock as collateral security, and executed a mortgage on his land in Muskegon for $1,000. Mr. Howell took the application for the loan. The land was appraised by members of the local board, and the loan approved by the officers in New York city. The loan, according to the terms of the mortgage and the bond accompanying it, was payable at the office of the company in New York. After the loan was approved, a check for $582 and one for $18 were sent to the local attorney of the company at Muskegon. They were both indorsed by Mr. Burch, who was allowed to retain the one for $582. The $18 check was used by the company as six months’ premium on the loan. Afterwards a check for $379.87 was given to Mr. Burch, the company retaining $11.13 as premium on the loan, and $9 as interest. These items made up the $1,000 for which the mortgage was given. The local attorney examined the title to the lands, and turned over the checks to Mr. Burch. The mortgage was delivered to the local attorney, put upon record, and sent to the complainant. Mr. Burch made payments to the treasurer of the local association. He paid, in all, the sum of $1,080.26. It is claimed by the association that the paypaents were applied as follows: For dues on the shares, $402; fines, $42;'interest on loan, $318.13; premium on loan, $318.13. Mr. Burch was unable to keep up his payments. The association, in June, 1898, applied the withdrawal value of the shares, said by them to be $381.66, upon the mortgage, and filed this bill to foreclose it, claiming, as we have before stated, that more than $1,000 was due.

The first thing to be considered is, Was the contract in violation of our usury law ? According to the articles of the association, and the terms of the mortgage also, Mr. Burch was to pay for this loan 6 per cent, interest, and as premium five dollars a month for eight years, or until the loan was all paid or the shares matured. If we eliminate the payment of dues upon the shares, it is apparent the mortgage calls for a payment for interest of upwards of 12 per cent, on the loan for a period of eight years, or until the pledged shares mature, and would be usurious, under our usury laws (section 4856, 2 Comp. Laws 1897), unless it is saved by the provisions of our laws governing building and loan associations (section 7584, Id.). That section refers only to corporations organized under the act. The Michigan act also requires the directors to loan the surplus to the stockholder who shall bid the highest premium (section 7581); while it will be observed there is no such provision in the New York association, but, on the contrary, it requires a borrower to pay, in addition to 6 per cent, interest, a fixed premium on the sum borrowed. In this State such a contract could not be enforced by an association organized under our law. Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944). Such a provision is contrary to the spirit and purpose of a building and loan association. See McCauley v. Saving Ass’n, 35 L.R. A. 244 (97 Tenn. 421, 37 S. W. 212, 56 Am. St. Rep. 813), and note, where there is a full collation of the authorities. The articles of association also provide for loans on shares, at the withdrawal value thereof at the same rate of interest charged uppn real loans. The directors are authorized to .invest the residue of the loan fund in such securities as the laws of New York permit for the investment of savings banks deposits. Our statute applying to building and loan associations (section 7584, 2 Comp. Laws 1897) reads as follows: !

“Corporations organized under this act being of the nature of codperative associations, therefore no premium, fines, nor interest on such premiums that may accrue to .the said corporation, according to. the provisions of this act, shall be deemed usurious, and the same may be collected as other debts of like amount may be collected by law in this State. ”

Our law does not authorize the issuance of paid-up shares, thus allowing persons to make investments which shall bring them rates of interest much in excess of that allowed by our usury laws. We think it very clear that a Michigan building and loan association could not do what was done here.

It is said the contract is a New York contract, and must be governed by the New York law, and for that reason can be enforced. We db not think it at all clear this is a New York contract, or that it was so understood to be when it was made. While by the terms of the mortgage the loan was to be paid in New York, it was expected the money would be paid to the treasurer of the local branch at Muskegon, and most of it was paid to him.

A case quite similar to this was passed upon in Meroney v. Loan Ass’n, 116 N. C. 882 (21 S. E. 924, 47 Am. St. Rep. 841), where the following language is used:

“Wharton, in his treatise on the Conflict of Laws (section 510), says of the question ‘whether, when a mortgage is given as security for a loan, and the mortgage is in one State and the place of payment of the loan in another, the law of the former State or that of the latter State is to prevail in the settlement of interest,’ that it has been frequently litigated in the United States, and ‘ with results which, on their face, are .irreconilable.’ And the learned author says:

• ‘ ‘ The true test is, Was the mortgage merely a collateral security, the money being employed in another State and under other laws, or was the money employed on the land for which the mortgage was given ? If the former be the case, then the law of the place where the money was actually used, and not that of the mortgage, applies. If the latter, then the law of the place where the mortgage is situate must prevail.’

“ It is stated in the elaborate brief of the learned counsel #or appellant that the authorities cited by Wharton do not sustain the rule thus laid down by him. Among these cases is Chapman v. Robertson, 6 Paige, 627 (31 Am. Dec. 264), in which it was adjudicated, as stated in the head-notes of that case in 31 Am. Dec. 264, that ‘the construction and validity of personal contracts depend on the laws of the place where they were made, unless they were entered into with the view of being performed elsewhere;’ and also that ‘ transfer of lands or other heritable property, and the creation of liens thereon, is governed by the laws of the place where such property is situate.’ Of this case Folger, J., said in Dickinson v. Edwards, 77 N. Y. 573 (33 Am. Rep. 671):

" ‘ Chapman v. Robertson is a case often cited and relied upon, but it does not impugn the general rule that the validity of a purely personal contract is to be tried by the law of the place of its performance. The learned chancellor concedes that the case would have come clearly under that principle if the contract in suit had been only the personal contract of the defendant; but he holds that, as it was a mortgage actually executed here, by a resident here, upon lands here, for moneys loaned to be used here, though to be repaid elsewhere, the law of this State would fix the legality of the rate of interest reserved; and he further reasons that the contract was partly made here actually in reference to our laws, with an appeal to our courts contemplated by the parties, if necessary:’

“A distinction seems thus to be clearly recognized between a contract ‘purely personal’ (as, for instance, a promissory note executed in this State, but made payable bona fide in Georgia) and a contract not ‘ purely personal ’ (as, for instance, a loan of money by a citizen of Georgia to a resident here to be repaid in that State, and to be evidenced by note so payable, and mortgage on land in this jurisdiction).

“In Jackson v. Mortgage Co., 88 Ga. 756 (15 S. E. 812), Bleckley, C. J., speaking of a loan of money made by the defendant to the plaintiff in New York, but secured by a mortgage on land in Georgia, where he resided, says;

“ ‘There was not one contract for making notes and another for securing them by a conveyance, but a part of one and the same contract was expressed in the notes, and a part in the deed executed at the same time. * * There was no intention to make a loan without having it secured both by notes and a deed. It was, therefore, impossible to accomplish the object without calling in the law of Georgia as to a part of the transaction. New York had no law which could make any contract conveying land situated in Georgia operative or obligatory. As the law of Georgia would thus be essential with respect to a part of the transaction, that law, if possible, ought to be applied to the whole. There was no intention to make a mere personal contract, but the scheme was to make one partly personal, and partly confined by its very nature to a given situs, to wit, the State of Georgia.’

“See, also, Martin v. Johnson, 84 Ga. 481 (10 S. E. 1092, 8 L. R. A. 170), which was a suit to foreclose a mortgage, the debt being payable, in Massachusetts. It is there said:

“ ‘There is a portion of this contract which, under no circumstances, could he enforced in the State of Massachusetts,— that as to the land upon which it is sought to set up a lien. Nor can we very readily see how any portion of this contract could he enforced in the State of Massachusetts against a person resident in the State of Georgia.’

“The difference in the contracts makes a difference in the rule applicable to their enforcement. Hence, in Pine v. Smith, 11 Gray, 38, it was decided, that a note made in, Massachusetts, and secured by mortgage on land in that State, although payable in New York, was to be construed by the Massachusetts law; and in Thompson v. Edwards, 85 Ind. 414, it was held that if A., of Indiana, borrowed in Indiana, on notes secured by a mortgage on land there, money of a citizen of New York, some of the notes being payable in New York and some specifying no place of payment, the' contract was an Indiana contract, and the question of its being usurious was to be tested by the law of that State. In Pancoast v. Insurance Co., 79 Ind. 172, the notes and mortgage were payable in Connecticut, and the court said:

‘“It is true that the notes and mortgage are made payable at Hartford, in the State of Connecticut. But it is true that they were executed in this State, the mortgagor lives in this State, the lands lie in this State, and from the terms of the mortgage it is clear that the intention of the parties was that the contract was to be enforced in this State. The mortgage could be enforced nowhere else. In such a case the law of this State governs, the rate of interest being fixed in accordance with the laws of this State.’

‘ ‘ The doctrine which Dr. Wharton announces seems to us just and reasonable. It has been repeatedly held that such transactions would constitute ‘ doing business ’ in this State, so as to subject the foreign money lender thus conducting himself to a license tax. Murfree, Foreign Corp. §§ 65, 69, and cases cited. The contention of the defendant corporation seems to us to amount to this: That it must he allowed to do business in North Carolina in total disregard of North Carolina’s statutes and the decisions of her courts; that it shall be allowed to take mortgages on North Carolina land, from a resident owner, for money loaned to the resident, to be used here, and foreclose them in North Carolina courts, where alone jurisdiction for foreclosure could reside, and where alone it must have contemplated enforcing its rights, if a resort to courts should be necessary, not by North Carolina statutes and the decisions of her courts, but by Georgia statutes and the decisions of its courts; in fine, that it shall be allowed to override, in the courts of this State, the laws of this State, and its well-settled policy as to the borrowing and lending of money. We cannot accede to this-proposition, but, instead, we choose to adopt the doctrine announced by Wharton, quoted above, which seems to us more reasonable, and which he assures us is sustained by the authorities.”

In Freie v. Savings Union, 166 Ill. 128 (46 N. E. 784, 57 Am. St. Rep. 123), the following language is used:

“ But it is insisted that a foreign corporation organized as a building and loan association cannot contract for premiums and fines in addition to interest without violating the statutes against usury. The rule as to foreign corporations is that such a corporation created in another State may, upon the principle of comity, exercise within this State the powers conferred by its charter, if not inconsistent with the public laws or policy of this State. Stevens v. Pratt, 101 Ill. 206; Santa Clara Female Academy v. Sullivan, 116 Ill. 375 (6 N. E. 183, 56 Am. Rep. 776); Barnes v. Suddard, 117 Ill. 237 (7 N. E. 477). By the statute of Indiana, under which complainant was organized, it had power to enter into the contract in this case, and it was not contrary to the laws or policy of this State, which permit the organization of like corporations with the same powers.”

To the same effect is Rhodes v. Loan Co., 173 Ill. 621 (50 N. E. 998, 42 L. R. A. 93). See, also, Lindsay v. Loan Ass’n, 120 Ala. 156 (24 South. 171, 42 L. R. A. 783); Interstate Sav. & Loan Ass’n v. Strine, 58 Neb. 133 (78 N. W. 377); National Mut. Bldg. & Loan Ass’n v. Keeney, 57 Neb. 94 (77 N. W. 442); Falls v. Building Co., 97 Ala. 417 (13 South. 25, 24 L. R. A. 174, 38 Am. St. Rep. 194); Cotton States Bldg. Co. v. Reily, (Tex. Civ. App.) 50 S. W. 961.

These cases are not in conflict with Russell v. Pierce, 121 Mich. 208 (80 N. W. 118), or Phelps v. Loan Ass’n, 121 Mich. 343 (80 N. W. 120). It does not appear in either of those cases that what was done would be in violation of our law if done by a Michigan building and loan association.

In 1895 the legislature passed a law making it unlawful for a building and loan association, organized outside of the State of Michigan to conduct or engage in business in this State without filing with the secretary of state a copy of its articles of incorporation, and paying at the same time a franchise fee. % Comp. Laws 1897, § 7592 et seq. The record discloses this company never complied with this provision of the law. The question is now raised as to whether it can resort to our courts to enforce contracts, even though they were made before this law was enacted,—counsel citing People’s Mut. Ben. Soc. v. Lester, 105 Mich. 716 (63 N. W. 977); Equitable Loan & Investment Ass’n v. Peed, 153 Ind. 697 (52 N. E. 201); Seamans v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457). The record does not disclose that the jurisdiction of the court was questioned in the court below. The defendants did not appeal from the decree. We decline to enter upon a discussion of that branch of the case.

The taxes of 1892 upon the mortgaged- land were not paid. The defendant Thorpe obtained a tax title thereon. The bill charges a conspiracy between Mr. Burch and Mr. Thorpe to allow this land to be sold for the purpose of cutting off the lien of the mortgage. The circuit judge dismissed the bill as to Mr. Thorpe. We think the conspiracy is not shown.

The decree of the court below is affirmed.

The other Justices concurred.