text:
    DONOHUE v. VOSPER.

    1. Deeds — Warranty—Aeter Acquired Titee — Evidence—Execution — Estoppel.
    Complainant’s predecessor in title entered Ms claim to timber lands in the Upper Peninsula wbicb were part of the Federal grant for railroad construction enacted in 1866. Congress subsequently declared a forfeiture of all property so granted, excepting tona fide homestead claims, supported by actual occupancy; also confirming title in the Lake Superior Canal Company as to a portion. Some litigation arose between the canal company and the settlers, and the United States filed a bill in equity against the company and the claimants, aforesaid, whose rights were held to depend on the tona fides of their homestead occupaney — a question later raised and litigated in a suit involving the attempted forfeiture. In 1896 a decree was entered determining that the company that had succeeded to the title and rights of the canal company was vested with title and that the complainants had nó interest therein; and the company’s rights were quieted by the final order of the court. The predecessor in title obtained a quitclaim of these corporate rights and conveyed the lands to complainant. In 1908 the complainant and defendant joined in a lease of the property for mining purposes, carrying out the provisions of a previous option. Defendants’ rights were based on an alleged deed of a quarter interest from complainant, who denied its execution. Held, on appeal, that the evidence to impeach the deed was insufficient to satisfy the burden of proof in such cases and that the usual presumption arising from the acknowledgment should prevail; also that complainant was estopped by his deed, with the accompanying warranties, from asserting any claim upon the basis of interests secured thereafter.
    2. Same — Presumptions—Acknowledgment.
    The notarial certificate of a sealed conveyance carries with it the presumption that the officer who made it certified to the truth and that he was not guilty of wrongful action.
    3. Same — Decree—Recitals—Real Property.
    Where the Federal decree, in addition to other findings, recited that the title to the said real property at the time of commencement of suit was vested in the canal company (passing thence to its successor), and that complainant and defendants had no rights in the lands at the time of commencing suit, the decree did not transfer any interest from complainant and his grantee .to the corporation, hence, no warranties passed with the real estate to the corporation and its quitclaim deed to complainant and defendant created no rights in them hy reason of any covenants of warranty in a previous conveyance. Held, also, that it was not because of a release contained in the decree that defendant had no title, as found by the court, but the decree determined as of the time stated that he owned no interest to be affected by the release.
    4. Same — Inuring of Title.
    But possession of the said lands held by the warrantor necessarily inured to the benefit of the defendant when complainant later acquired title.
    5. Same — Eviction—Estoppel.
    One claiming estoppel by warranty must show that he has been evicted before he can set up the estoppel by virtue of covenants in his conveyance.
    6. Same — Remedy.
    The subsequently acquired estate passes by direct operation of law without the intervention of equity or of any other court.
    7. Same — Notice—Quitclaim.
    The grantee under a quitclaim deed takes with notice of any defects in his grantor’s title and subject to previous unrecorded warranty deeds.
    8. Same — Statutes—Construction—Retroactive Effect.
    Complainant is not aided by Act No. 199, Pub. Acts 1915, or 3 Comp. Laws, §-8988, changing the rule of law as to notice in case of conveyance by quitclaim, because nothing contained in the statute indicates the intent of the legislature to change the rule as to conveyances already made. It is a general rule that statutes are not to be construed retroactively, unless it clearly appears that such was the intention of the legislative body.
    9. Adverse Possession — Limitation of Actions — Cotenants— Notice.
    If one of several cotenants, in the occupancy of lands, purposes to acquire title by hostile tenure, as against his co-tenants, the proof of his denial of their right should be clear and unambiguous and must be brought home to their knowledge by express notice or by implication: the case may not be made out by inference.
    10. Same — Tenants in Common — Notice.
    The possession of one of two tenants in common is of right and does not import adverse possession, and the presumption arising from such occupation must be overcome by conduct inconsistent with the recognition of existing rights in other tenants in common.
    11. Same — Recognition—Tenants in Common — Arresting Operation of Statute.
    By executing with the several cotenants an option, and, thereafter, a mining lease of the holding in common, the tenant in possession recognized their rights and stopped the running of the statute as against them.
    Appeal from Iron; Flannigan, J.
    Submitted October 11, 1915.
    (Docket No. 38.)
    Decided December 21, 1915.
    Bill by Martin Donohue against Benjamin Vosper, Fred H. Abbott, Maurice J. Tonkin and the Buffalo Iron Mining Company, to quiet title to real property. From a decree for defendants, complainant appeals.
    Affirmed.

      A. H. Ryall, for complainant.

      Dan H. Ball and Martin S. McDonough, for defendants.

      Removed to the Supreme Court of the United States by writ of error March 16, 1916.

   Kuhn, J.

The complainant seeks by his bill to quiet the title to an undivided one-fourth interest in certain land which it is the claim of the defendants was conveyed to the defendant Vosper by a warranty deed from the complainant’s grantor. This deed-.antedated a quitclaim deed given to the complainant by his grantor. In their answer the defendants, excepting the mining company, claimed the benefit of a cross-bill, and prayed that the title to the lands might be quieted against the complainant.

The land involved in this litigation was included in certain old grants by the United States government to the State of Michigan to aid in the construction of two railroads, one to Marquette and the other to Ontonagon. It was a part of the “common lands” at the intersection of the proposed railroads. The lands applicable to the Marquette road were released by the State to the United States, and later, in 1866, under an act of Congress (Act July 3, 1866, chap. 160, 14 U. S. Stat. p. 80), granting lands to the State for canal purposes, these lands inured to the benefit of a canal company by grant from the State. The lands to be used for the benefit of the Ontonagon road were not released, and the United States Supreme Court, in a suit hereinafter referred to, adjudged that the title to an undivided half of the “common lands” still remained in the State for the purposes, of th'is road, except as affected by an act of Congress in 1889 (Act March 2, 1889, chap. 414, 25 U. S. Stat. p. 1008), by which Congress declared a forfeiture of grants in the State of Michigan for all unconstructed railroads, and confirmed the title of all persons who had made cash entries within the limits of those grants, and all persons claiming under State selection, such as the canal company. By an exception' in the act, title was not confirmed in those lands on which they were bona fide pre-emption or homestead claims, asserted by actual occupation on May 1, 1888. Michael Donohue, the complainant’s grantor, together with various other persons, had entered upon these common lands as preemptors and homesteaders.

Prior to the act of 1889 the canal company had brought ejectment suits against these settlers. In 1890, at the instigation of persons claiming as pre-emptors and homesteaders under the act of 1889, the United States filed a bill against the canal company and others, claiming all these lands were lands of the United States and subject to entry under the homestead and preemption act, and prayed that the canal company be restrained from exercising acts of ownership on the land, particularly cutting timber. The canal company claimed the lands as having vested in it by the granting act and the confirmatory act of 1889, and that none of the pre-emption or homestead claims were within the exception of the latter act.

In 1894 the canal company’s' ejectment suit was decided by the judgment of the Supreme Court herein-before referred to, which adjudged that the title to an undivided half of the “common lands” still remained in the State after the release of the lands granted for the construction of the Marquette Railroad; that the title of the canal company to the lands selected to it by the State was confirmed by the Act of 1889, subject to the exceptions provided in the act; and that it should be determined in an equity suit in the United States court what lands came within the excepting clause. But by the act of 1889, referred to, the title of 'the State to the lands granted for the Ontonagon Railroad, including an undivided half of the common lands, was forfeited to the United States.

After the judgment in the Supreme Court of the United States, the defendant Vosper, who had defended the ejectment suit for Donohue and the other homestead and pre-emption claimants, took from Donohue a warranty deed on December 29,1894, for an undivided quarter interest in the land claimed by him, leaving a quarter interest in Donohue and a half interest in the canal company. It is asserted by defendant Vosper that he took this deed for legal services performed.

In the suit of 1890 by the United States against the canal company, the latter filed a cross-bill against the claimants, including Donohue, claiming the title to all the land. The issue in that litigation, therefore, was whether Donohue and the other claimants were bona fide homesteaders or pre-emptors on May 1, 1888. On September 8, 1896, a number of the claimants, including Donohue, and Vosper claiming Under him, consented to a decree, quieting title to the lands in the Keweenaw Association, Limited, successor to the canal company, which was entered on November, 1896. That decree, the effect of which is disputed and becomes important in this litigation, contained the following provisions:

“It is ordered, adjudged, and decreed * * * that the title to the lands hereinafter described, * * * at the time of the commencement of this suit, was fully and completely vested in the Lake Superior Ship Canal, Railway & Iron Company, as in part satisfaction of the grant to the State of Michigan by the act of Congress of July 3, 1866, and has, since the commencement of this suit, become, and is now fully and completely vested in said Keweenaw Association, Limited, and that neither the United States of America nor any of the defendants aforesaid, consenting to this decree, has any right, title, or interest therein.
“And it is further ordered, adjudged, and decreed that the title of said Keweenaw Association, Limited, in and to each and every of the parcels of the land hereinafter described, be, and the same is hereby, forever quieted in the said Keweenaw Association, Limited, as against the. said United States of America and each and every of the said defendants in the said cross-bill hereto consenting and herein named.
“This decree shall stand and operate as a release and conveyance from the United States, and each and every of the other of said defendants, of all right and title to said lands, and may be recorded as such in the records of the proper county.”

On November 19, 1896, the Keweenaw Association, Limited, conveyed the land in suit by quitclaim deed to Donohue. It is the contention of Vosper that he and Donohue agreed to this arrangement, by which a sum of money was to be paid for the timber cut and the land was to be conveyed by the Keweenaw Association, Limited, to Donohue. On December 3,1896, Michael Donohue delivered to the complainant, Martin Donohue, a quitclaim deed of the premises. On April 3, 1908, defendant Vosper quitclaimed an undivided one-eighth interest in the lands to the defendant Abbott, and on December 18, 1908, the complainant joined with the defendants Vosper and Abbott in the execution and delivery of an option for a mining lease of the premises. On or about February 3, 1909, defendant Abbott quit-claimed an undivided one thirty-second interest in the mineral to the defendant Tonkin, and on March 7,1910, complainant joined with the defendants Vosper, Abbott, and Tonkin in the execution and delivery of a mining lease of the premises pursuant to the option given before. The mining lease, which was for a term of 39 years, was issued to the Niagara Iron Mining Company as lessee, and was by that company assigned to the defendant, the Buffalo Iron Mining Company. From the date of the lease until the assignment thereof to the defendant mining company, the Niagara Iron Mining Company was, and from that time forward the defendant mining company has been and is now, in •possession of the premises for mining purposes.

The complainant makes the following contentions:

(1) That the deed of 1894 from Michael Donohue to Vosper, was not signed, acknowledged, nor delivered by Donohue,
(2) That the decree of 1896 entirely cut off any right Vosper may have had in the land under the warranty deed of 1894.
(3) That he was a purchaser in good faith without notice of Vosper’s claim.
(4) That the record of Vosper’s deed was defective, and therefore not constructive notice to the complainant.
(5) That the complainant and his grantor have been in continuous adverse possession'of the land since 1883, by virtue of which he has acquired a valid title as against Vosper.

1. The first contention of complainant raises the only material question of fact in dispute in this case, as to whether the warranty deed of December 29, 1894, which purports to have been executed by Michael Donohue, was executed and delivered by him to the defendant Vosper. Complainant seeks to disprove the execution of this deed by the testimony of Michael Donohue, to the effect that he does not recollect the making of such a deed, and that he was not at Iron River on the 29th day of December, 1894, and by his testimony that both he and Michael were at Iron River on Christmas day of that year, but went back to the camp where they were working, some 10 or 12 miles away, on the 26th of December; and the testimony of Jesse Allen that Michael Donohue was cooking at the camp mentioned at or about Christmas time in 1894. Upon hearing all the testimony, seeing the witnesses, and comparing the signature on the deed with other signatures of Donohue which were fully authenticated, the learned trial judge found as a matter of fact that Michae* Donohue, with full knowledge of what he was doing, and with an intention to convey as in the instrument set forth, signed, acknowledged, and delivered to the defendant a warranty deed on December 29, 1894, and that the consideration which he received therefor was valuable and adequate. After careful examination of the testimony, we are of the opinion that the complainant has not met the burden of proof which rests upon a person who seeks to deny the execution and acknowledgment of such a deed. It is a well established rule that the certificate of a notary carries with it the usual presumption that the officer making it has certified to the truth, and has not been guilty of wrongful or criminal action. See Hourtienne v. Schnoor, 33 Mich. 274; Johnson v. Van Velsor, 43 Mich. 208, 219 (5 N. W. 265); Cameron v. Culkins, 44 Mich. 531 (7 N. W. 157); Dikeman v. Arnold, 78 Mich. 455, 470 (44 N.. W. 407). We are therefore in agreement with the circuit judge’s finding of fact as to the complainant’s first contention.

2. The next contention of complainant involves the effect of the decree of the Federal court. It is urged that this decree should stand and operate as a release and conveyance from the United States, Donohue, and Vosper to the Keweenaw Association, Limited,-of “all right and title to said lands;” that since the covenant of warranty in the deed runs with the land, it went with, the decretal conveyance to the association with the consent of Vosper, and from the association back to-Michael Donohue, in whom it was extinguished; and that Vosper therefore lost any rights which he might have had under the covenant. The difficulty with this contention, however, is that the decree in terms provides that neither Donohue nor Vosper had any right, title, or interest in the land, as it recites that Donohue, Vosper, and the United States “acknowledge that the said Keweenaw Association, Limited, is, and the said Lake Superior Ship Canal, Railway and Iron Company was, at the time of the commencement of this suit, the lawful owner in fee of the lands hereinafter described, * * * ” and adjudges— “that the title to the lands hereinafter described * * * at the time of the commencement of this suit, was fully and completely vested in the Lake Superior Ship Canal, Railway & Iron Company, * * * and has, since the commencement of this suit, become, and is now fully and completely, vested in said Keweenaw Association, Limited,” etc.

Now if the title was completely in the canal company at the'commencement of the suit (December 18, 1890, which antedates the time of the warranty deed to Vosper), and went from it to the Keweenaw Association before the decree, how could the decree carry any interest in the land from Donohue and Vosper to the Keweenaw Association? And we do not think that it can be contended that Vosper was adjudged to have no title as a result of the release clause in the decree, since there was nothing to be released if he had no interest. As was said by the learned trial judge, the right which accrued to Vosper under the breaches of the covenants of warranty found in the Donohue deed was a mere right of action for damages for the breach up to the time that Donohue acquired title under the deed to him from the Keweenaw Association, which right of action it is not claimed was transferred to the Keweenaw Association by the operation of the decree. The effect of the decree then was to oust Vosper from the land, of which he had the actual or constructive possession of an undivided quarter interest, it appearing that Michael Donohue continued in possession of the undivided one-half of the claim from the time' of his original entry until his quitclaim deed to the complainant, despite the alleged trespasses of the canal company and its successor, which possession would inure to Vosper under the warranty deed. (For it must be said that Donohue was holding possession under Vosper after December 29, 1894, of the undivided quarter interest.) The decree established a paramount title in a third party, and thus evicted Vosper from his title and possession in the undivided quarter. This is important because Vosper must show an eviction before he can claim the remedy of an estoppel by the covenant of warranty in his deed. See Matteson v. Vaughn, 38 Mich. 373; Rawle on Covenants for Title (5th Ed.), §§ 131-140.

It thus becomes a clear case for the application of the doctrine of estoppel by warranty in Vosper’s favor. The rule is that a grantor who assumes to convey property by warranty deed when the title is in a third person will, together with his subsequent grantees with notice, be estopped from setting, up against the first grantee an after-acquired title. The American courts have uniformly held that the after-acquired estate passes by direct operation of law, without the intervention of any court or the aid. of a suit in equity or action at law on the covenants, to the covenantee. See Rawle, supra, § 248; Maupin on Marketable .Title to Real Estate (2d Ed.), § 213. This doctrine has received the approbation of this court. Lee v. Clary, 38 Mich. 223, 226; Fisher v. Hallock, 50 Mich. 463, 465 (15 N. W. 552); Pfirrman v. Wattles, 86 Mich. 254, 258 (49 N. W. 40). Therefore, whatever title Michael Donohue acquired, by the quitclaim deed from the Keweenaw Association on November 19, 1896, passed directly to Vosper, unless the complainant can be said to be a subsequent purchaser in good faith without notice. This brings us to a discussion of the third contention of the complainant.

3. Under the decisions of this court, one who. takes by quitclaim takes with notice of - defects in his grantor’s title and subject to previous unrecorded warranty deeds. Peters v. Cartier, 80 Mich. 124, 129 (45 N. W. 73, 20 Am. St. Rep. 508); Beakley v. Robert, 120 Mich. 210 (79 N. W. 193); Hoffman v. Simpson, 121 Mich. 502 (80 N. W. 1133); Messenger v. Peter, 129 Mich. 93 (88 N. W. 209); Zeigler v. Coal Co., 150 Mich. 82 (113 N. W. 775, 13 Am. & Eng. Ann. Cas. 90); Backus v. Cowley, 162 Mich. 592 (127 N. W. 775); Pellow v. Iron Co., 164 Mich. 87 (128 N. W. 918, 47 L. R. A, [N. S.] 573, Am. & Eng. Ann. Cas. 1912B, 827); Walker v. Schultz, 175 Mich. 280, 292 (141 N. W. 543).

Counsel for complainant contends that, assuming that the deed as recorded was not constructive notice to the complainant when he made his purchase, by reason of a defective record, Act No. 199, Pub. Acts 1915, has changed the rule that has obtained for many years in this State relative to the standing of a grantee in a quitclaim deed, and it is his claim that the act merely establishes a new rule of evidence, which is applicable to cases arising before the act took effect as well as since. Act No. 199, Pub. Acts 1915, provides as follows:

“Every conveyance of real estate within the State, hereafter made, which shall not be recorded as provided in this chapter, shall-be void as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded. The fact that such first recorded conveyance is in the form or contains the terms of a deed of quitclaim and release shall not affect the question of good faith of such subsequent purchaser, or be of itself notice to him of any unrecorded conveyance of the same real estate or any part thereof.”

It is an amendment of section 8988, 3 Comp. Laws, which reads as follows:

“Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded.”

We are of the opinion that the language of the amendment does not indicate that it was contemplated by the legislature that it should affect conveyances already made. The language is:

“The fact that such * * * recorded conveyance is in the form or contains the terms of a * * * quitclaim and release shall not affect the question of good faith of such subsequent purchaser, or be of itself notice to him of any unrecorded conveyance of the same real estate or any part thereof.”

It is a rule that an act of the legislature is not to be construed as retroactive unless it affirmatively or clearly appears from the act itself that such was the intention. Smith v. Humphrey, 20 Mich. 398; Fuller v. City of Grand Rapids, 40 Mich. 395; Maxwell v. Bridge Co., 46 Mich. 278, 287 (9 N. W. 410); Phillips v. Township of New Buffalo, 68 Mich. 217, 219 (35' N. W. 918); In re Lambrecht, 137 Mich. 450, 453 (100 N. W. 606); Davis v. Railroad Co., 147 Mich. 479 (111 N. W. 76). And in our opinion it cannot be said that the act in question clearly states or necessarily implies that it is to have a retroactive effect, but rather the implication is to the contrary. We do not think it was the intention of the legislature to unsettle long-established titles, which the other construction contended for by the complainant might cause.

5. The last contention of the complainant’s counsel is that the complainant and his grantor, Michael Donohue, had been.in possession for more than 15 years, and therefore Vosper’s title is barred. With reference to this, there is no contention between counsel as to the soundness of the legal propositions advanced by complainant, viz., that a grantor may obtain title against his grantee, and a tenant in common against his cotenant, by adverse possession. The contention of counsel for the defendants is that, while these legal propositions are well grounded, it is also true that before a tenant in common may acquire a title against his co-tenant by adverse possession, the proofs must be clear and cogent, and the case cannot be made out by inference. Yelverton v. Steele, 40 Mich. 538. Campau v. Campau, 44 Mich. 31, 34 (5 N. W. 1063), is cited, where it is held by this court that:

“Such exclusive claim and denial of their right should be clear and unambiguous, and brought home to the knowledge of the cotenants, either by express notice or by implication. And if the latter, all doubt growing out of the nature and character thereof should be against an ouster. The presumption should be that the tenant in possession respects and recognizes the rights of his cotenants, until the contrary clearly appears; that the possession is rightful, and not to the exclusion of others having equal rights.”

See, also, Rich v. Mining Co., 147 Fed. 380 (77 C. C. A. 558).

The reason for this rule, in our opinion, is apparent, because the possession itself is rightful and does not import adverse' possession, as would that of a stranger. So that the presumption of occupation as a cotenant must be overcome by acts and declarations which are clearly inconsistent therewith, and which are brought home to the cotenant. Michael Donohue, at the. time of his deed to Vosper, was in possession. He then conveyed to Vosper an undivided quarter and remained in possession. ' Martin Donohue was living with his brother at the time, and after he received the deed from Michael in December, 1896, he continued to remain there, his possession being of the same nature as that of Michael, which continued until the execution of the mining lease. Since that time the complainant has resided upon and farmed a portion of the land, being permitted to do so by the terms of the mining lease so long as his occupancy did not interfere with the mining operation.

In 1908, an application having been made for a mining option on the land, Martin Donohue claims to have first heard that Vosper claimed to have a deed from Michael Donohue of an interest in the land. He then claimed that no such deed had been made, ahd that he had received a letter from his brother denying that he had made any such deed. This was his first denial of Vosper’s rights. But it seems to us that if he denied Vosper’s title, he could not consistently join with Vos5 per in executing an option for a lease and the lease itself, unless it should be by an agreement which denied Vosper’s rights. It was the opinion of the circuit judge — in which we concur — that it would be absurd to hold under the proofs in this case that, during the period from the execution of the deed to Vosper to the delivery of the Keweenaw Association deed to Michael, the latter was holding adversely to Vosper, or that Vosper knew or believed, or had the slightest reason to suspect, that Donohue repudiated his rights , under his deed. During this period the things which were done on or concerning the land by complainant were as consistent with a full recognition of Vosper’s title as the contrary. And until shortly before the execution of the option in 1908, no notice, actual or by implication, that the quarter interest in controversy was claimed by either Michael or the complainant was brought home toVosper. In any event, the running of the statute was arrested by the recognition of Vosper’s and Abbott’s titles by the execution of the option in December, 1908,, which was repeated on March 7,1910, by the execution of the lease therein provided for.

The case of Houlihan v. Fogarty, 162 Mich. 492 (127 N. W. 793), is cited by complainant’s counsel, but we think that case is readily distinguishable from the situation here presented. In that case the effect of a recital or admission of title in the lease on the running of the statute was not involved nor decided.

When Martin Donohue, in the instrument above referred to, acknowledged that he was holding possession subject to the titles of Vosper and Abbott, it is urged with reason that they had no. occasion to commence any suit, as such conduct on the'part of the complainant would reasonably lead them to the belief and conviction that such adverse claims had been abandoned. We are therefore of the opinion that there is <no merit in the complainant’s claim of adverse possession.

The decree of the lower court in dismissing the bill of complaint and quieting the title of the defendants Yosper, Abbott, and Tonkin as prayed for in the cross-bill will therefore be affirmed, with costs to the defendants.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    AUDITOR GENERAL v. NELSON.
    1. Taxation — Acreage—Nonprejudicial Omission.
    The omission from the assessment roll of the number of acres in rural lands assessed for general taxes does not invalidate the tax, because no prejudice results to the owner. 1 Comp. Laws, § 3922 (1 How. Stat. [2d -Ed.] § 1870).
    2. Costs — Taxation—Prosecuting Attorney — Statute.
    Costs in the form of a solicitor’s fee were erroneously taxed against the defendant in proceedings for the statutory decree of sale of lands for delinquent taxes (section 66, Act No. 206, Pub. Acts 1893; 1 Comp. Laws, § 3889; 1 How. Stat. [2d Ed.] § 1835).
    Appeal from Muskegon; Sullivan, J.
    Submitted October 12, 1915.
    (Docket No. 58.)
    Decided December 21, 1915.
    Petition by Oramel B. Fuller, auditor general, against Thomas M. Nelson, and other delinquent taxpayers, for the sale of lands for taxes thereon. From a decree for petitioner, defendant Nelson appeals.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Grant Fellows, Attorney General, and Harrié E. Gal-pin, Prosecuting Attorney {Galpin & Broek, of counsel) , for appellee.
   Kuhn, J.

The auditor general of this State filed his petition in the circuit court of Muskegon county for the sale of certain lands for delinquent taxes for the year 1912, the amount of which, with interest and charges, was $212.58. The contestant and appellant filed his objection to such taxes, giving the following reasons therefor:

(1) Because the assessment roll for the year 1912 does not show the number of acres contained in said parcel of land, said parcel not being included in any town, city, or village lot.
(2) Because it appears, from the excessive valuation placed on said premises upon said roll as compared to other land in the same vicinity, that the supervisor and board of review had an erroneous idea as to the area of said parcel of land.

With reference to the second objection urged, the circuit judge said in his opinion:

“On the hearing it satisfactorily appeared' to the court that this parcel of land was not assessed nor valued any higher relatively than the other parcels of land in the same vicinity and on the same assessment roll.”

This objection, however, is not urged in this court, and the question that is here presented is whether or not the failure to place the number of acres actually in the parcel, in the column headed “Acres in Each Tract or Parcel,” opposite the description in question, should avoid the tax.

gection 99 of the tax law (being section 1870,1 How. Stat. [2d Ed.]) provides:

“No tax assessed upon any property * * * shall be held invalid by any court of this State on account of any irregularity in any assessment, * * * or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person” assessed.

We are of the opinion, as was the learned circuit judge, that the omission of the number of acres in property described accurately on the tax roll does no harm to the property rights of the contestant, and that by virtue of the provisions of the statute above quoted the objection has no merit, and should not affect the validity of the tax.

In determining the question of costs, provided for by section 66 of the general tax law (being section 1885, 1 How. Stat. [2d Ed.]), the court said:

“Inasmuch as the court indicated to Mr. Nelson on the héaring of the case that he thought he should pay his taxes without further delay or contest, and as Mr. Nelson paid no heed to the friendly admonition of the court, and, for other reasons, it seems but equitable that Mr. Nelson should pay the costs of solicitor fee as on a motion, that is, $10, and such amount of costs will be decreed against him.”

The general tax law provides that it shall be the duty of the prosecuting attorney to prosecute all such proceedings on the part of the State, and we are therefore of the opinion that it was improper to tax a solicitor’s fee, as the prosecuting attorney performs these services under his salary provided for by law, and is therefore not entitled to any additional compensation. .It was not therefore a proper element of the costs provided for in the statute. With this modification, the decree of the court below will be affirmed, without costs to either party.

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


author: Per Curiam.

text:
    OSBORN v. CITY OF ANN ARBOR.
    Waters — Municipal Corporations — Riparian Rights — Diverting Stream: — Demurrer—Appeal and Error.
    Upon a bill in chancery to restrain a municipal corporation from diverting water by artesian wells from tbe neighborhood of complainant’s wells, an order overruling defendant’s demurrer is affirmed in order that proofs may be taken to assist the court in determining the question, because of its great importance in this State.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 14, 1915.
    (Docket No. 82.)
    Decided December 21, 1915.
    Bill by Frederick Osborn and another against the city of Ann Arbor and others for an injunction. From a decree overruling defendants’ demurrer, complainants appeal.
    Affirmed.

      Andrew J. Sawyer (John W. Dwyer and Arthur Brown, of counsel), for complainants.

      Frank B. De Vine (A. F. Freeman, of counsel), for defendants.
   Per Curiam.

The bill of complaint in this cause is filed to restrain the defendant city from taking for public use water from property adjoining the property of the complainants. Complainants claim that in doing this it takes water from the complainants’ property and the region thereabout, and thus destroys the value of the land, and deprives the owner of the land of the water for domestic and agricultural purposes, without condemnation proceedings, or without compensating the owner for his loss. An appeal is taken to this court from an order overruling the demurrer filed by the defendant. At the hearing of the case before us it was announced by the court that because of the importance of the questions involved we hesitated to decide the question.upon the allegations in the bill of complaint, and therefore would sustain the order overruling the demurrer, so that an answer might be filed and proofs taken. The order overruling the demurrer is affirmed.


text:
      In re KEENE’S ESTATE. MAYNARD v. KEENE.
    1. Wills — Estates ox Decedents — Evidence—Declarations ox Decedent.
    Where decedent, in her will, cut off her husband, against whom she had filed a bill for divorce, with a gift of $10, giving as a reason, “because he robbed me of money from time to time until I fired him out of the house, and I refused to live with him,” the instrument having been lost, mislaid or destroyed, testimony tending to show the alleged state of bad feeling between testatrix and her husband was properly admitted to assist the jury in determining the issue, which was whether or not the will had been revoked

    2. Same — Subscribing Witness — Exxect ox Bequest to Witness.
    Where decedent in drafting her will placed certain property in trust for two minor children of her brother, the effect of having the trustee appear as a subscribing witness did not necessarily bear on the issue whether or not the will had been executed and later revoked; nor was the validity of the bequest a question to be submitted to the jury.

      3. Same — Revocation—Destruction or Loss of Instrument.
    If it is shown that after a proper search the will of a testatrix cannot he found and it cannot he traced out of the possession of deceased, the presumption of revocation may he aided by evidence of declarations made by the testatrix. The question becomes an issue of fact for the jury.
    4. Same.
    Where there was evidence in the record to prove the testatrix had frequently stated to her relatives, prior to her last illness, that she had so arranged her affairs as that her brother’s children should receive the bulk of her property, and there was evidence tending to show her antipathy toward her husband, the trial court was justified in submitting to the jury the testimony which had some tendency to disprove revocation as alleged by contestant.
    5. Appeal and Error — New Trial — Exceptions—Saving Questions for Review — Record—Bill of Exceptions.
    The bill of exceptions in a proceeding to review, in the Supreme Court, by writ of error, the denial of a motion for a new trial, under 3 Comp. Laws, § 10504, should contain all proceedings upon such motion, including the reasons given by the trial court and exceptions taken to the refusal, and failure to do so precluded the review of the finding of the court, although counsel incorporated such exceptions in the printed record.
    Error to Muskegon; Sullivan, J.
    Submitted October 15, 1915.
    (Docket No. 113.)
    Decided December 21, 1915.
    Frank Maynard presented for probate the alleged will of Alice Maynard Keene, deceased, and Gust Keene, contestant, appealed to the circuit court. Judgment for proponent and contestant brings error.
    Affirmed.

      Sutherland, Johnson & Sessions, for appellant.

      Dunham & Dunham, for appellee.

      On evidence to establish lost or destroyed will, see note in 38 L. R. A. 433.

   Kuhn, J.

The decedent, Alice Maynard Keene, at the time of her death had been a resident of the city of Muskegon for approximately 20 years.. During that time she had accumulated considerable real estate, and had been proprietress of several houses of questionable reputation in that city. She had a brother, Frank Maynard, who was married and had three children. She had known the contestant, Gust Keene, her husband, for many years before he came to Muskegon in 1907, and married him in Chicago in 1911. She lived with him until May, 1912, when they separated. In July she filed a bill for divorce against him in the circuit court for the county of Muskegon, which was dismissed in April, 1913, by the trial court after hearing the testimony. In November, 1913, she commenced another suit in the circuit court in the county of Kent against, him for divorce, which apparently was pending at the time of her death.

In the year 1900 she had a will prepared, by the terms of which her property went to her brother, with certian provisos, and in the fall of 1912 she went to the office of Mr. John H. Banninga, who is the manager of a real estate company in the city of Muskegon, and asked him to prepare a will for her. Mr. Banninga, who had advised her for several years concerning some of her business matters, met her by. appointment, and after she produced her old will he took a. blank form of will and made a lead pencil memorandum or copy of what she wanted. On the next evening-a pen and ink copy was made, and that evening the decedent again came to his office, where the will wass read over to her, and while waiting for a person who.» had been asked to be a witness of the will, she also> read it over. Subsequently a Mr. Matthew H. Steiner was called in and, together with Mr. Banninga, witnessed the will, which was signed and executed that: evening. The will was then put in an envelope and sealed and locked in a box in a vault of the Wood Beal Estate Company, and the old will was at that time derstroyed and put in the stove by the decedent. It appears from the testimony that during these two visits to Mr. Banninga’s office she stated that she wanted the property to go to her brother’s children, as her brother, Frank Maynard, was the victim of a drug habit, and that her husband had robbed and abused her, and that she had been compelled to file a bill for divorce against him.

In November, 1913, she again went to the office of Mr. Banninga and told him that she was going to Waterloo, Iowa, where her brother, Frank Maynard, was living; that she wanted to take the will with her in order to show them how she had disposed of her property, and reiterated her hatred toward her husband. While in Waterloo she read the will over to Mrs. Maynard, who saw it, and whom she told that the children would get practically all the property, and that she wished the children to be sent to a convent. Mrs. Maynard also testified that the decedent was apparently not on friendly terms with Mr. Keene, as she did not speak kindly of him at all, but used profanity when talking about him. The decedent arrived in Waterloo about three weeks before Thanksgiving, and on the Saturday before Thanksgiving she left Waterloo for Chicago, intending to go from Chicago to Grand Rapids. After arriving in Chicago she wrote her brother from a hotel and requested him to send the baggage check for her trunk, which had not left on the same train that she had. This was the last heard of her by her family until a few days later, when Frank Maynard received a telegram from Grand Rapids that she was dead. She died in the home of Mrs. Mamie Burress, where she spent about eight days, and was sick practically all the time she was there. After her death no will was found, and upon petition of Frank Maynard a special administrator was appointed in December, 1913. In June, 1914, Mr. Banninga discovered the old pencil copy of the will, which he had made, in his desk, and a petition was then filed in the probate court for the county of Muskegon to establish this lost will. It was duly certified to the circuit court, where it was brought on trial, and the will established by the verdict of the jury, and judgment entered thereon.

The first group of assignments of error relate to testimony which was received over objection, admitted for the purpose of showing the alleged enmity that Mrs. Keene had in her lifetime toward her husband, the contestant. The will contained the following bequest:

“I give, devise, and bequeath to my husband, Gust Keene, the sum of ten ($10.00) dollars, or the sum of one hundred ($100.00) dollars [the $100 is then scratched out, and ten written above it], and no more, because he robbed me of money from time to time, until I fired him out of the house, and I refused to live with him.”

It is practically undisputed in this case that the will in question was made, and the real question in dispute was whether or not it had ever been revoked. We think that the testimony here objected to was competent as bearing upon the question of the revocation of the will.

The bulk of the property, by the terms of the will, was bequeathed to the children of Frank and Nellie Maynard, to be'held in trust by the executor named in the will until said children reached the age of 21 years, if the executor deemed best. John H. Banninga was named as executor, and also was one of the subscribing witnesses thereto.

The trial court denied a request to charge the jury that the bequest in trust to John H. Banninga for the children of Frank and Nellie Maynard was void because he is one of the two subscribing witnesses to the will, and instructed the jury as follows:

“In relation to John H. Banninga having been mentioned in the will, or the copy that is said here, as the ■executor or as trustee, as far as that is concerned, that does not make any difference, excepting, perhaps, the weight to be given to his testimony. If he actually subscribed the will, and Steiner subscribed the will, and Mrs. Maynard subscribed the will, what effect that may have upon the will is not for the jury.”

Reliance is placed by counsel for the appellant upon section 9268, 3 Comp. Laws (4 How. Stat. [2d Ed.] •§ 10981), which provides:

“All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void, unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts, shall not prevent his creditors from being competent witnesses to his will.”

We do not think it is necessary at this time to determine whether the vesting of this, property in Mr. Banninga as trustee for such a period is such a beneficial interest given by the will as to bring it within the prohibition of the statute above quoted. The questions here for the jury to determine were whether or not such a will had been legally executed, and whether it had been revoked. We agree with the instructions of the trial judge that the question of the validity of this bequest was not a proper matter for the jury to consider in the case before them.

It is the claim of the appellant that a verdict should have been directed for the contestant after the proponents had rested their case, and that no competent testimony was introduced to outweigh the presumption of revocation which arose because of the failure to discover the will. It is without question the rule of law that, where a will cannot be found at the death of the testator upon proper search being made, and especially where the will is not traced out of the possession of the testator, it is to be presumed that it was destroyed by him animo revocanda. But it is also established in this State that this presumption of revocation can be met by declarations of the testator. It was said in Ewing v. McIntyre, 141 Mich. 506, 517 (104 N. W. 791):

“But counsel for contestants contend that the declarations of the testator were not competent evidence to rebut the presumption of revocation, and that the great weight of current authority is to that effect [citing numerous cases].
“We do not deem it necessary to enter upon a discussion of the authorities to determine on which side the weight of authority lies, since the rule has been established in this State against contestants’ contention. Lawyer v. Smith, 8 Mich. 412 [77 Am. Dec. 460]; Harring v. Allen, 25 Mich. 505; In re Hope, 48 Mich. 518 [12 N. W. 682]; In re Lambie’s Estate, 97 Mich. 50 [56 N. W. 223]; Cheever v. North, 106 Mich. 390 [64 N. W. 455], 37 L. R. A. 561 [58 Am. St. Rep. 499].”

It was also said in Re Foerster’s Estate, 177 Mich. 574, on page 585 (143 N. W. 616, on page 620):

“Whether or not the presumption of revocation is rebutted is a question for the jury. Thornton on Lost Wills, § 73, citing cases.”

There is evidence in this record to show that from the time that the testatrix executed the will until she lay upon her deathbed, she told her friends and relatives that she had had her affairs so arranged that her brother’s children would get the bulk of her property. Mrs. Burress, at whose house she died, testified :

“She said she had things fixed in case anything happened to her, and that it would go to her brother’s children, and she spoke especially of Olgy, the oldest one. She seemed to be more in favor of him.
“Q. But she said that it would go to her brother’s children ?
“A. Yes; her brother’s children. She did not speak anything about him or about his wife to me.
“Q. I will ask you whether or not she said that to you the day she died?
“A. Yes; she did.
“Q. And whether or not she said that to you several times before that.
“A. Several times; there was not a day that she did not talk about it.”

Considering also her repeated statements concerning her husband, the contestant, which showed a feeling of antipathy on her part toward him, the fact that at the time of her death divorce proceedings were pending, we are of the opinion that the testimony raised a question of fact which we think the trial judge was clearly justified in submitting to the jury.

The counsel for contestant made two motions for a new trial; the second motion being accompanied by various affidavits and supplemental affidavits. Both these motions were denied by the trial judge, and the denials of these motions are assigned as. error by proper assignments. Neither the motions for a new trial, nor the orders denying the new trial, nor the affidavits in support of the second motion for a new trial, nor the exceptions to the findings of the court denying a new trial are made a part of the bill-of exceptions, but are found in the printed record. The only reference thereto in the bill of exceptions certified to by the trial judge is his statement giving the reasons for the denial of the second motion for a new trial. Counsel for appellee contend -that under the decisions of this court the exceptions to the denial of the motion for a new trial, not being in the bill of exceptions as certified to by the trial judge, are not properly a part of the record, and should not now be considered, and attention is called to the statute (section 10504, 3 Comp. Laws) which reads as follows:

“Section 1. The people of the State of Michigan enact, That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on-said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken- and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.”

Stevens, in his work on Michigan Practice, says with reference to the preparation of the bill of exceptions (Vol. 2), on page 476:

“The denial of a motion for new trial may, since the statute of 1893, be set forth in a bill of exceptions, for review by the Supreme Court. In such case ‘a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial,’ may be incorporated. The bill of exceptions should contain: (1) The motion and the affidavits filed in support of and against it; (2) the order denying the motion and the reasons given by the trial judge for its denial; (3) the exceptions taken by appellant to the denial. While all these documents are a part of the records and files of the cause, the statute seems to contemplate that they shall be incorporated in the bill of exceptions.”

See, also, 2 Green’s Michigan Practice (3d Ed.), p. 1145.

We are of the opinion that the author has come to the right conclusion in saying that it is apparent from a reading of the statute that the exceptions to the denial of a motion for a new trial and all proceedings with reference thereto should be incorporated in the bill of exceptions. Counsel urge that, because these various papers are printed in the printed record here filed, that is sufficient, because in various decisions of this court the word “record” is used indiscriminately with the words “bill of exceptions” in holding that the reasons for denying a motion for a new trial must be in the record. However, it must be clear that, when the word “record” was used in these decisions, it could only be said to refer to such documents and proceedings as are properly a part of the record for review in this court, and not to what counsel may see fit to have printed in the printed record. Here, clearly, an attempt was made to assign error upon exceptions which are not in the bill of exceptions certified to by the trial judge, and we therefore must refuse to consider assignments of error based thereon.

This court said, in Stevenson v. Railway Co., 118 Mich. 651, 653 (77 N. W. 247):

“Under Act No. 134, Pub. Acts 1893, providing that there may be incorporated in the bill of exceptions a record of the proceedings on motion for' a new trial, including the reasons for the refusal thereof, and that exceptions may be taken and error assigned thereon, the action of the court cannot be reviewed in the absence from the bill of the reasons therefor and exceptions to the decision. McRae v. Garth Lumber Co., 102 Mich. 488 [60 N. W. 967].”

See, also, Pearl v. Township of Benton, 136 Mich. 697 (100 N. W. 188); Wilbur v. Railroad Co., 145 Mich. 344, 351 (108 N. W. 713); In re Meeker’s Estate, 169 Mich. 303, 306 (135 N. W. 248).

Finding no error in the assignments of error properly before us for consideration, we are constrained to affirm the judgment.

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


author: KUHN,. J. Ostrander, J.

text:
    GILECKI v. DOLEMBA.
    1. Malicious Prosecution — Probabee Cause — Evidence.
    In an action for malicious prosecution, the question of want of probable cause is for tbe court if tbe facts are undisputed.

    2. Same — Criminal Prosecution — Want of Probable Cause.
    Probable cause is such reasonable ground of suspicion, supported by known circumstances, or by information of sufficient character, to justify an ordinarily cautious person in believing that tbe accused is guilty of tbe alleged crime.
    3. Same — Evidence—Directed Verdict.
    Where tbe defendant displayed in tbe presence of plaintiff, a stranger, a large roll of money which be placed in an\ unlocked trunk in tbe lower part of tbe bouse, plaintiff being in a position to see tbe act, and where there was evidence that be was informed by a roomer that some one, crept stealthily downstairs in tbe night and after moving about went outside, that tbe person coughed like one of tbe roomers with whom plaintiff was friendly, and that tbe dog belonging to defendant bad been put outside in tbe night, that plaintiff and tbe roomer bad entered tbe bouse together, where, also, defendant related all tbe facts to a justice of the peace who issued- a warrant, tbe question of probable cause, upon uncontradicted evidence, was for tbe court, which rightly held that there was no proof of a want thereof.
    Ostrander, J., dissenting.
    Error to Gogebic; Cooper, J.
    Submitted October 15, 1915.
    (Docket No. 122.)
    Decided December 21, 1915.
    Rehearing denied April 21, 1916.
    . Case by John Gilecki against Joseph Dolemba for malicious prosecution. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Julius J. Patek, for appellant.

      Curtis Buck (Belmont Waples, of counsel), for appellee.

       Whether tbe question of probable cause in malicious prosecution is a question for court or jury is discussed in an extensive note in L. R. A. 1915D 1.

   KUHN,. J.

The defendant herein, on December 5, 1913, made a written complaint against the plaintiff, charging him jointly with one John Pazara with the larceny of $300 of the defendant’s money. A warrant was issued for the plaintiff’s arrest, and he was taken in custody and remained in custody in default of bail until the 10th of that month, on which day the case was dismissed by the prosecuting attorney for want of sufficient evidence.

This action is brought for malicious prosecution, and at the close of the plaintiff’s evidence the trial judge directed a verdict in favor of the defendant on the ground that under the undisputed facts in this case the evidence wholly failed to show as a matter of law a want of probable cause, and also wholly failed to show any malice on the part of the defendant. The facts are in substance as follows:

On the evening of December 4, 1913, the plaintiff met Frank Dolemba, a brother of the defendant, and one John Pazara in a saloon, where Dolemba and Pazara bought some wine. Dolemba and Pazara both roomed at defendant’s house, while plaintiff roomed a short distance away. On the way home, Frank Dolemba and Pazara invited the plaintiff to go to the defendant’s home with them, which he did, and there drank some wine with them. It was the first occasion on which the plaintiff had been in the defendant’s house. While the plaintiff was in the house the defendant displayed a considerable amount of money, upwards of $300, and in the presence of the plaintiff, and where the plaintiff could see him, he placed the money in a trunk in another room, not locking the trunk. The defendant then retired for the night, his wife visiting with the plaintiff and Pazara. Later the wife retired. The plaintiff then went to his own house, and Pazara also retired for the night.

A brother of the defendant, who was living with him, came in later, locked the front door, and went to bed, and at that time the defendant’s dog was in the house. But in the morning he found that the dog was on the outside of the house. He was also told the next morning by a woman who lived in another part of the house that she heard some one come softly downstairs about 3 o’clock in the morning, move around stealthily, then go out of doors for a time, then come back, and that he coughed like Pazara.

The loss of the money was discovered in the morning by the defendant’s wife, and the defendant thereupon went at once to the office of the prosecuting attorney of the county to lay the facts before him, but failed to find him, as it appears that the prosecutor was away at the time. He then went to a justice of the peace, and told him the facts as he knew them, and signed the complaint upon which the warrant was issued. This complaint and warrant form the basis of this action.

It is the settled rule in this State that when the facts are conceded, the want of probable cause is a question of law to be determined by the court, and therefore the trial judge acted properly in making such a determination. Huntington v. Gault, 81 Mich. 144 (45 N. W. 970); Rankin v. Crane, 104 Mich. 6, 9 (61 N. W. 1007); Fine v. Navarre, 104 Mich. 93 (62 N. W. 142); Slater v. Walter, 148 Mich. 650 (112 N. W. 682). The question before us, therefore, is whether or not he erred in determining that the facts herein set forth were insufficient to show a want of probable cause.

In determining this question,' it' is necessary to bear in mind that to constitute probable cause there must be such a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to war.rant an ordinarily cautious person in believing that the person arrested was guilty of the offense charged. Gallaway v. Burr, 32 Mich. 332; Hamilton v. Smith, 39 Mich. 222; Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46); Wilson v. Bowen, 64 Mich. 133 (31 N. W. 81).

Taking the situation as it presented itself to the defendant when the loss of the money was discovered, the fact that the plaintiff and Pazara came to his house together, where the former had never been before, that lie there saw the money displayed and could see where the defendant placed the money, the fact that it appeared that somebody had come into the house after the brother had retired for the night, in our opinion, warranted the defendant, in the exercise of ordinary-prudence, in believing that Pazara and the plaintiff were connected with the disappearance of the money, .and we therefore conclude that the circuit judge was :right in holding that the evidence wholly failed to show ;a want of probable cause in the taking out of the complaint and warrant against the complainant in this <case; and, further, that there is no evidence of malice shown on the part of the defendant.

The judgment of the lower court will therefore be affirmed.

Brooke, C. J., and Person, Stone, Bird, Moore, .-.and Steere, JJ., concurred with Kuhn, J.

Ostrander, J.

{dissenting). I think the case was une for the jury.


text:
    SPIEGEL v. BARRETT.
    1. Municipal Corporations — Drains—Construction—Breach op Contract — Assumpsit.
    Under the drainage law of the State of Michigan, special assessment districts formed in the construction and assessment of a drain lying within two adjacent counties are not public corporations and have no power to sue or to be sued; they are created simply for the purpose of collecting taxes from the land which benefits by the construction of the improvement and the money raised for the drain cannot be diverted to any other purpose.
    2. Same — Statutes—Counties—Judgment.
    Under section 2471, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 953), judgments recovered against county officers may be spread against the entire county, but in case of a drainage district including portions of two counties, the statute could have no application.
    3. Same — Contracts—Damiages—Taxation.
    Since the county has no interest financially in the construction of a drain, and the cost is required to be paid by property owners within the assessment district, damages for breach of a contract and for work done under such contract could not be assessed against the county as a whole.
    4. Same — Assumpsit.
    Accordingly, an action of assumpsit does not lie against the drain commissioners of two counties in which a district is situated and plaintiff’s remedy for money due under his contract, and for loss of profits thereunder, would be a different form of procedure.
    Error to Shiawassee; Miner, J.
    Submitted October 4, 1915.
    (Docket No. 93.)
    Decided December 21, 1915.
    Assumpsit by Frederick F. Spiegel against James Barrett, drain commissioner of the county of Saginaw, and another, for breach of contract and for a balance due thereon. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      W. J. Parker and R. L. Crane, for appellant.

      Bird J. Vincent, Prosecuting Attorney, Seth Q. Pulver, Prosecuting Attorney, and Joseph H. Collins, for appellees.
   Kuhn, J.

This action is brought in assumpsit by the plaintiff against the drain commissioners, of Saginaw and Shiawassee counties, Mich., in their official capacities. It appeared that at the time of the hearing the defendant James Barrett was no longer commissioner of Saginaw county and was succeeded by Emil Roethke, who was substituted by an amendment as a defendant in the place of Barrett. On September 29, 1911, the plaintiff entered into a drain construction contract with the predecessors, of the present defendants for the construction of certain sections of the Griffus Creek drain located in the townships of Brant and Brady, Saginaw county, and Rush, in Shiawassee county, the date of the completion of this contract being fixed as January 1, 1912, and one of the provisions being that:

“The contractor hereby agrees to begin work within ten days and keep the same up without delay until the completion of this job, condition of weather excepted.”

The next summer was exceedingly wet, and the work was continued during 1912 and 1913, and various payments were made on the contract. It is also claimed that in the spring of 1914 it was agreed that the plaintiff was to begin as early as' possible and complete the drain during the summer of 1914. But during March of the same year notice was served on the plaintiff by the commissioners that they would forfeit his contract on the 7th of April, 1914, at the office of the drain commissioner at Saginaw, because of the noncompletion of the work within the time specified and allowed for in the contract for the construction of the drain. On the 7th of April, 1914, a meeting was held at the office of the county drain commissioner of Saginaw county, the plaintiff appearing before the commissioners, and notice of forfeiture was thereupon served on the plaintiff. It appears that at least a portion of the drain has not been completed in Saginaw county, and that no work at all has been done on the part of the drain lying in Shiawassee county. The plaintiff claims in this suit a sum of money owing him for work which he claims is completed, and also claims a sum due him as loss of profits which he claims would have accrued had he been permitted to continue and complete said contract. At the close of the opening statement of counsel for the plaintiff, a motion was made on the part of the defendants for a directed verdict, for the reason that the action was not properly founded and could not be properly brought against the drain commissioners in their official capacities, which motion was granted. The real issue in the case is, therefore, can such an action be laid against the commissioners in their official capacities by a contractor for money earned upon a contract? and also can prospective profits be recovered in assumpsit against the commissioners if the commissioners acted wrongfully in declaring a forfeiture ?

This being an action in assumpsit against the drain commissioners in their official capacities, we are of the opinion that the plaintiff is mistaken in the form of the remedy. It is the contention of the plaintiff’s counsel that it should be held that the drain commissioner in making these contracts is the agent for the lands liable to assessment for constructing the drain. But this contention presents to our minds insurmountable difficulties. Under our drainage law, the special assessment drainage districts are not corporations, as have been created in certain States — Illinois, for example — where the statute bestows powers to contract and be contracted with, to sue and be sued, upon such districts. Here they have no corporate entity, and are created simply for the purpose of collecting taxes from the benefited land for the construction of the drain. There is no provision in the law providing for the certifying of the judgment on a claim such as is made in the instant case, nor providing for the spreading of such a judgment in the form of a tax upon the lands in the drainage district. It is clear from reading the act in question that the sole purpose of the drain tax is to complete a drain, and the law will not permit such funds to be paid out for any other purpose. Section 2471, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 953), provides:

“When judgment shall be recovered against the board of supervisors or against any county officer in an action prosecuted by or against him in his name of office, no execution shall be awarded or issued upon such judgment, but the same, unless reversed, shall be levied and collected as other county charges, and when so collected, shall be paid by the county treasurer to the person to whom the same shall have been adjudged, upon the delivery of a proper voucher therefor.”

This statute does not apply, however, because by virtue of its terms the judgment would be spread against the whole county, and under the circumstances of this case it would run against both counties. The county as such has no interest financially in the construction of a drain, as the cost of the drain is paid by the benefited property owners within the special assessment district, and it would certainly be an improper procedure, and unjust, to require the people of the entire county to bear the cost of the construction of a drain where only a small part of them could be said to have been directly benefited thereby. It is clear, therefore, that there is no legal method by which judgment in such a case could be satisfied. And to take judgment against an officer when no means is provided for to collect it would be indeed an idle ceremony.

A somewhat similar and analogous situation was presented to the court in the case of Pape v. Township of Benton, 140 Mich. 165 (103 N. W. 591). Under section 2, Act No. 173, Pub. Acts 1897, it is provided that upon the request of an overseer of a highway within a township, and upon petition of the majority of the taxpayers of such highway district, the highway commissioner of the township may purchase a road machine for such district. The law also provides for a certification of the amount to be spread as a tax, certifying the names of the persons and the descriptions of the land against which the tax is to be levied. A road machine was sold under a contract claimed to have been entered into under this statute, and the plaintiff sued the defendant township in assumpsit for the balance claimed to be due him thereon. Mr. Justice McAlvay, in writing the opinion of the court, said:

“The only question before the court is whether assumpsit will lie against defendant in this case. * * * It is evident from a reading of the two sections that the first provides for these contracts to be made with townships; that in the second the legislature, in providing a means whereby road districts in a township might purchase a road machine,- recognized that such districts were not municipalities which could assume obligations, and sue and - be sued, and provided a way of payment for this implement necessary in the construction and maintenance of highways, through the provisions of the statute. No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through, official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township. The paving cases cited by appellant are not in point. In each the municipality had assumed the liability by contract or otherwise. The duties required to be performed under this statute by the several officers are, in their nature, ministerial. This court has held repeatedly that mandamus is the proper remedy to compel an officer to perform a ministerial duty. In this case, the remedy of plaintiff in case of refusal on the part of these officers to act in the premises was by mandamus.”

It is argued by counsel for the defendants — and it seems to us with force — that the county drain commissioner occupies a position with respect to the special drainage districts in the county somewhat analogous to that occupied by the highway commissioner of the township with respect to the road districts in the township. Neither of these districts has any corporate life, neither is a municipality created by the statute, and neither has any authority granted it to assume obligations or to sue or be sued. In each case, they exist simply for one purpose, and the money raised for them cannot be diverted to any other purpose; the funds so raised must be paid out in the exact method provided for by law.

We are of the opinion that the circuit judge was correct in holding that the plaintiff could not bring an action in the manner in which he has sought to bring it here, and the judgment is therefore affirmed.

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


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    MORRISON v. CITY OF IRONWOOD.
    1. Appeal and Error — Directed Verdict — Snow and Ice — Municipal Corporations.
    In determining whether or not the trial court erred in directing a verdict against plaintiff, who was injured by falling into an excavation in accumulated snow and ice, in the streets of a city, the evidence must be considered in that light which is most favorable to the claim of the plaintiff.
    2. Negligence — Proximate Cause — General Definition.
    A cause is proximate if it operates to produce particular consequences without the intervention of any independent unforeseen cause, but for which the injuries would not have occurred.

    3. Municipal Corporations — Excavation — Streets — Cities —Snow, Accumulation of — Negligence.
    A pedestrian, who fell into a temporary ditch, laid across the crosswalk, in ice and snow, that had accumulated to a depth of fifteen inches and upwards on a city street, where the danger was concealed by a light snowfall, and was unknown to the plaintiff, was entitled to have the verdict of the jury on the questions of negligence and proximate cause, the testimony showing that snowstorms were and should have been anticipated when the ditch was built.

    4. Same — Torts — Reasonable Care — Negligence — Proximate Cause.
    To render a negligent act the proximate cause of the alleged fall, it was not essential that the persons who constructed the ditch might have foreseen the particular consequence or injury, or manner in which it took place, if by an exercise of reasonable caution it might have been anticipated that some injury might occur.

      Error to Gogebic; Cooper, J.
    Submitted October 13, 1915.
    (Docket No. 69.)
    Decided December 21, 1915.
    Case by Julia Morrison against the city of Iron wood for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      James A. O’Neill, for appellant.

      Harry K. Bay, for appellee.

      On defect in highway as proximate cause of injury, see notes to 13 L. R. A. (N. S.) 1252, 20 L. R. A. (N. S.) 732.

      As to an obstruction in highway as proximate cause of injury notwithstanding intervening cause, see note in 9 L R. A. (N. S.) 548.

   Kuhn, J.

The plaintiff, a woman 53 years of age, on the morning of March 17, 1914, while walking westerly on Ayer street in defendant city, and while crossing the crosswalk on the south side of that street where it is intersected by Lowell street, stepped into a temporary drain dug in the snow, causing a fall from which she received serious injuries. The streets at the place of the accident are paved, the pavement extending over and constituting the crosswalks, and during the winter months, when large quantities of snow and ice accumulate on the streets, it is spread out by the city employees, and when traveled upon becomes smooth and hard, and constitutes the surface of the streets and crosswalks.

At the time of the accident the accumulation of the snow and ice on Ayer and Lowell streets at the place where the plaintiff sustained her injuries was upwards of 15 inches deep, being smooth and level, having been traveled upon during the previous winter. Shortly before the date of the injury the street commissioner of the defendant city, who had charge of the street work, and whose duty it was to keep the streets, sidewalks, and crosswalks in proper condition and repair, caused a ditch to be constructed across the crosswalk on the south side of Ayer street where that street is intersected by Lowell street. There is some dispute in the record as to how this ditch was constructed and as to its dimensions; but, in view of the fact that a verdict was directed at the close of the plaintiff’s proof for the defendant, in the consideration of the questions involved in this appeal it will be necessary to consider the evidence in the light most favorable to the plaintiff’s theory. We find that there is evidence which tended to prove that this ditch was from 12 to 15 inches in depth and about a foot in width, with perpendicular, abrupt sides, and extended directly across the crosswalk at a point about 2 or 3 feet from the edge of the sidewalk. These ditches were usually dug to permit the water to run into the sewer, and to drain the water off the sidewalk in anticipation of the thaw which would come later.

It snowed on the afternoon and evening prior to the day of the accident, and as a result this ditch became filled with light, soft snow. The plaintiff, who resided in another part' of the county, and who had no knowledge of the existence of the ditch, arrived in Ironwood on the day previous to her injury, and upon the following morning, about 9:30 o’clock, while passing over the crosswalk, stepped into the ditch, the presence of which was entirely concealed by the light, soft snow, causing her to fall, with resulting injuries.

It is the contention of counsel for the plaintiff and appellant that the court erred in directing a verdict in favor of the defendant, for the following reasons, set forth in his brief:

(1) That the proximate cause of the injury was the dangerous condition in the street and crosswalk, results ing from the ditch constructed by defendant, into which the plaintiff stepped and was injured.
(2) That the fact that the ditch was concealed by a natural fall of snow which prevented plaintiff from discovering and avoiding it, in no way relieved the defendant from the result of its negligence in constructing the ditch, or permitting it to remain uncovered and unguarded, particularly in view of the fact that the defendant admittedly knew and expected at the time that the ditch was dug that it would become filled and concealed by soft, light snow.
(3) That the ditch being.constructed in such a manner and at such a time and place as to make it particularly dangerous, imposed upon the defendant the duty to cover, guard, or otherwise protect it.
(4) That the testimony on behalf of plaintiff at least raised a question for the jury as to whether or not the action of the city in constructing this ditch and allowing it to remain uncovered, unguarded, or otherwise protected, knowing and expecting that it would become filled and concealed by soft, light snow, left the crosswalk in a condition reasonably safe and fit for travel, and whether such unsafe condition of the crosswalk was the proximate cause of the injury.

The learned trial judge was of the opinion that the proximate cause of the accident was the natural accumulation of snow caused by the snowstorm, which had just ceased at the time the accident took place and had hidden the ditch; and that there was no ¿vidence that the accident would ever have happened merely from the digging of the ditch. The question here involved is: Was the circuit judge right in holding that it can be said under these facts that the fall of snow was the proximate cause of the accident? If it can be so considered, he was fully justified in directing the verdict as he did.

The problem of determining the proximate cause, under the rules laid down by the various decisions, is indeed at times perplexing, and in the case of Stoll v. Laubengayer, 174 Mich 701 (140 N. W. 532), Mr. Justice Brooke, in reviewing this subject, said:

“The definition favored by the compilers of 21 Am. & Eng. Enc. Law (2d Ed.), p. 485, is:
“ ‘A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause without which the injuries would not have occurred.’ ’’

Can it be said that the snowstorm which filled the ditch was an independent unforeseen cause? That such falls of snow were anticipated is shown by the testimony of the street commissioner, who testified as follows:

“Q. Any ditch that you would dig, or the city of Ironwood would dig, for the purpose you have mentioned, or for any other purpose, along about that time of year, would in all probability become filled with snow, or a snowstorm might come and fill it up; might it not?
“A. Certainly.
“Q. You always had a crew of men on to go around and clean them out and open them up afterwards?
“A. Yes, sir.
“Q. You would expect that there would be light snow that would cover up those ditches?
“A. We always cleaned them out when it was possible. We always had men for that purpose. We would expect that there would be falls of snow that would cover up the ditches, and we would have to go and clean them out afterwards.”

In the case of Baker v. Railroad Co., 169 Mich. 609 (135 N. W. 937), this court said:

“To make such negligence the proximate cause of an injury, it must be the natural and probable consequence of the negligent act, which, under the circumstances, an ordinarily prudent person ought reasonably to have foreseen might probably occur as the result of his negligent act. Where an act is negligent, to render it the proximate cause, it is not necessary that the one committing it might have foreseen the particular consequence or injury, or the particular manner in which it occurred, if by the exercise of reasonable care it might have been anticipated that some injury might occur.”

Viewing the testimony as to the construction of the ditch in the light most favorable to the plaintiff’s claim, and taking into consideration the weather conditions prevalent in that part of the State at the time of year the accident occurred, we are of the opinion that the fall of snow was not such an independent, unforeseen cause which intervened between the claimed negligent act of the city in constructing the ditch as it did and the time of the injury, that it can be said to be the proximate cause of the accident; and that the city should have anticipated the possibility of the fall of snow and that some injury might therefore result from having the ditch unprotected and uncovered. Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500); Burrell v. City of Greenville, 133 Mich. 235 (94 N. W. 732). The street commissioner testified that he had instructed his men to always dig ditches in the gutter, as that is the place where people might expect to find a ditch, and that he would not consider a ditch with perpendicular sides a proper ditch to put across a sidewalk.

Being satisfied that it must be said that the construction' of the ditch was the proximate cause of the accident, we are of the opinion that the question of whether the action of the city in constructing and maintaining the ditch uncovered and unguarded, in the condition disclosed by the record, left the crosswalk in a condition reasonably safe and fit for travel, should have been submitted to the jury.

We are therefore constrained to reverse the judgment of the court below and grant a new trial.

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