author: Carpenter, J. Blair, J.

text:
    HILLMAN v. HULETT.
    1. Principal and Agent — Representation by Agent. — Unauthorized Acts — Ratifioation.
    A telegram from the chief officer of a Nevada lodge of Odd Fellows, addressed to defendant’s wife, announcing the death of her father, was delivered to defendant, who authorized the telegraph operator to have the body shipped at his expense. The Michigan lodge, of which deceased was a member, on receipt of a similar telegram, sent a telegram to the Nevada lodge, without consulting defendant, guaranteeing the charges. On learning of the action of the lodge, before arrival of the body, defendant stated to members that the charges would be paid. Held, that defendant ratified the unauthorized act of the lodge and made himself liable for the guaranteed charges. Blair, Montgomery, and Hooker, JJ., dissenting.

      ■¿. Same — Undisclosed Principal — Liability.
    Plaintiff, the undertaker, who prepared and shipped the body upon the order of the Nevada lodge, which in turn looked to the Michigan lodge, was justified in holding defendant responsible as the undisclosed principal for whom both the lodges acted. Blair, Montgomery, and Hooker, JJ., dissenting.
    8. Sales — Action for Price — Value—Evidence.
    Testimony by plaintiff, in support of his bill of particulars stating the items and price of goods furnished to defendant, that he furnished such items, and “charged” the affixed price therefor, is sufficient, in the absence of specific objection during the taking of the testimony, to support a finding that the value of the goods was as claimed.' Blair, Montgomery, and Hooker, JJ., dissenting.
    4 Justices of the Peace — Actions —Parties—Joint Defendants — Several Contracts.
    Act No. 137, Pub. Acts 1903, makes the practice in justice’s court conform to that prescribed for circuit courts by Circuit Court Rule No. 27c, and' authorizes the plaintiff, on appeal from justice’s court, to discontinue as to one or more joint defendants and take judgment against those remaining.

      5. Statute of Frauds — Promise to Pay Debt of AnotherjOriginal Promise — Application of Statute.
    On delivery to defendant of a telegram addressed to his wife announcing the death of her father, defendant orally authorized the telegraph operator to have the body shipped at his expense. The reply telegram ordering shipment was sent in the name of the wife, and the body shipped to her. Held, that defendant’s undertaking was a pledging of his own credit on his own behalf, and was not a promise to pay the debt of his wife, and that it was therefore not void under the statute of frauds (section 9515, 3 Comp. Laws) because not in writing.
    Error to Macomb; Tucker, J.
    Submitted February 15, 190?.
    (Docket No. 33.)
    Decided July 15, 1907.
    Assumpsit by W. S. Hillman against Bert Hulett and Allie Hulett for goods sold and delivered. There was judgment for plaintiff, and defendant Bert Hulett brings error.
    Affirmed.

      William T. Hosner (Byron B. Er shine, of counsel), for appellant.

      Seymour H. Person, for appellee.
   Carpenter, J.

Plaintiff is an undertaker in Tuscarora, Nev. He brings this suit to recover for a casket and shipping box in which the body of one L. F. Harris, the father of defendant Allie and father-in-law of defendant Bert, was shipped from Tuscarora, Nev., to Armada, Mich. The suit was tried before the court, who made a finding of facts and rendered judgment in favor of plaintiff and against both defendants (who are husband and wife). Defendant Bert alone appeals, and asks a reversal of that judgment upon four grounds:

(1) There is no testimony tending to establish his liability.

(3) There was no evidence tending to prove the value of the goods furnished by plaintiff or the reasonableness of his charges.

(3) Appellant’s liability — if he is liable at all — is a several liability, and it cannot be enforced in this suit where he and his wife are sued jointly.

(4) Appellant’s alleged agreement was “ a special promise to answer for the debt of another,” and was therefore void, because not in writing, as required by section 9515, 3 Comp. Laws.

Each of these grounds will be separately considered.

1. Was there testimony tending to establish appellant’s liability? In determining this question we should and do state the testimony most favorably to plaintiff. Harris, the deceased, was a member of the Armada Lodge of Odd Fellows. In Tuscarora he affiliated with the Tuscarora-Lodge of Odd Fellows. The Tuscarora Lodge looked after him during his last illness, and, when he died, its chief officer telegraphed notice of that fact to defendant 'Allie and to the Armada Lodge. The telegram to defendant Allie was delivered to appellant Bert, and he thereupon authorized the telegraph operator to have the body shipped to Armada at his expense. The operator sent this dispatch in the name, not of appellant Bert, but of defendant Allie. Very soon thereafter the operator, who was sécretary of the Armada Lodge of Odd Fellows, notified other officers of that lodge that appellant Bert had ordered the body shipped at his expense, and the chief officer of that lodge also sent a telegram guaranteeing the charges of shipment. This was done without consultation with appellant Bert, but as an act of kindness to him and upon the assumption that he would pay the expenses which it guaranteed. Before the body arrived, appellant Bert learned of the action taken by the lodge, and he said that the charges would be paid. The two telegrams, viz., the one sent by appellant Bert in the name of defendant Allie, and the one sent by the Armada Lodge, were duly received by the chief officer of the Tuscarora Lodge of Odd Fellows, who directed plaintiff to prepare the body for shipment and to ship it. The trial judge found that “the shipment was undoubtedly made and the other expense incurred upon the faith of the Tuscarora Lodge, who in turn looked to the Armada Lodge.” The-Armada Lodge, it appears from the foregoing facts, was acting for and in behalf — that is, as the agent — of appellant Bert Hulett. It is true that it had no authority to so act, but, by the conduct above stated, appellant ratified its action and made himself liable therefor. Mechem on Agency, § 157; Heyn v. O’Hagen, 60 Mich. 157. I think the foregoing facts justified the plaintiff in holding, appellant responsible as the undisclosed principal for whom both the Armada and the Tuscarora Lodge acted. We áre therefore bound to say that there was testimony tending to establish appellant’s liability.

2. Was there evidence tending to prove the value of the goods furnished by plaintiff ? Plaintiff’s bill is as follows: •'

Metallic lined casket and trimming..............§125 00
Shipping box, embalming fluid, etc............... 12 00
§137 00

Upon this bill was credited $20, cash paid, leaving a balance of $117. Respecting this bill, plaintiff’s deposition contained the following testimony:

Q. Did you prepare Mr. Harris’ body for shipment home, and did you furnish casket, etc., for thát purpose ? • “ A. Yes, I did.

Q- What were your charges for the services, casket, etc., in such matter ?

“A. One hundred and thirty-seven dollars.”

The point is now made that the foregoing furnishes evidence of plaintiff’s “charge” for the articles furnished, but not of their actüal “value.” This point assumes that the charges testified to by plaintiff had no relation to value. This is placing upon that testimony a narrow and extremely technical construction. If this construction had been insisted upon during the taking of testimony, when plaintiff could have supplied the needed testimony, it is possible the court might have approved it. But it was not then insisted upon. Indeed, the point was not made until the testimony was all taken and the cause submitted. Under these circumstances, it may properly be held that defendant has acquiesced in placing upon that testimony the construction that plaintiff obviously intended should be placed upon it. It is clear that in giving this testimony the plaintiff intended to furnish evidence of the amount of defendant’s liability. He intended that from this testimony the court should infer not only that $137 was the amount charged, but that that amount was properly charged (and perhaps this inference is just. Ducoign v. Schreppel, 1 Yeates [Pa.], 347). This intention was obvious, and defendant’s counsel was bound to know it. Unless he acquiesced, it was his duty to speak. He did not speak; nor was anything done, either by him- or defendant, his client, to indicate his nonacquiescencé. I submit that there was nothing in the testimony of Mr. Hulett, the defendant, quoted by my Brother Blair, to indicate his belief that the amount charged by plaintiff did not afford evidence of value. Under these circumstances, plaintiff, had the right to assume that defendant’s counsel consented to this construction of the testimony, and it is to be presumed that he acted upon this assumption when he submitted his case. To thereafter permit defendant to contend that he did not acquiesce in this construction is to permit him to perpetrate an injustice. I think it is our duty to hold that defendant is estopped from insisting that the construction plaintiff placed on this testimony was not the proper construction, and, therefore, that there was evidence of the value of the articles sued for. The circumstance that the charge of perjury would not lie on this testimony is immaterial. By the concession of counsel courts often act upon testimony which is not under oath. In my judgment,- this is such a case. I submit that the principle applied in construing this testimony is not a novel one. It is construed in accordance with the intention of the parties.

3. Can the defendant’s liability be enforced in this suit wherein he and his wife are sued jointly ? The point to this objection is not that there has in fact' been a joint judgment rendered against defendant and his wife— probably this point is not made, because defendant was not thereby prejudiced — but it is, to quote from defendant’s brief, “plaintiff cannot sue jointly on several promises made by different parties.” This is precisely what he is permitted to do, in cases commenced in the circuit court, by Circuit Court Rule No. 27, subd. c, as construed by this court. See McPherson v. Pinch, 119 Mich. 36; Durgin v. Smith, 115 Mich. 239; Root & McBride Co. v. Walton Salt Ass’n, 140 Mich. 441. But as this case originated in justice’s court, the question arises whether the rule above referred to is applicable. In Wright v. Reinelt, 118 Mich. 638, decided in 1898, we held that it did not apply in such cases, citing as authority therefor Anderson v. Robinson, 38 Mich. 407. In Anderson v. Robinson, the plaintiff was denied the right given by subdivision b of Circuit Court Rule No. 27 (at thqt time Rule No. 71) to discontinue against one of two defendants, who had appealed to the circuit court from a joint judgment rendered by a justice upon the ground that “ the appeal contests the liability asserted in the court of original jurisdiction, and if a joint one, the appellee has no power to change it into an individual liability in the appellate court against the consent of the appellant;” and the court added: “A contrary course would lead to strange and unjust results. ” Since these decisions were rendered the legislature has, by Act No. 137 of the Public Acts of 1903 (this is an amendment of Act No. 199, Pub. Acts 1899), made the practice in justice’s court conform to that prescribed in subdivision c of Rule No. 27 for the circuit court. Said Act' No. 137 also provides:

“ In case the defendants, or any two or more of them, shall take any cause where they are joint defendants by appeal to the circuit court from the justice court, and shall file a bond on appeal, and, on the trial in the circuit court, a verdict shall be rendered for one or more of such defendants so appealing, the surety or sureties on such appeal bond shall not be released from his or their liability on such bond by reason of such verdict, but judgment shall enter against said surety or sureties as well as against the defendant or defendants against whom verdict is ren - dered on such trial in the circuit court.”

It seems to us very clear that the purpose of this act was to place cases appealed from justice’s court — as to the right of plaintiff to hold one of several defendants liable on his separate contract — on precisely the same footing as cases commenced in the circuit court; and we also think that this statute removes the objections to that practice referred to in Anderson v. Robinson, supra. This conclusion is in harmony with the decision of Wilson v. Medler, 140 Mich. 209.

4. Was defendant’s promise void, because not in writing? The claim that it is, assumes that it was a promise to pay the debt of his wife. This assumption is unfounded. According to the testimony of the messenger who delivered the telegram — and this testimony appears to have been credited by the trial judge — defendant made himself primarily liable. His was not, therefore, a promise to pay the debt of another, and the statute (section 9515, 3 Comp. Laws) relied on by his counsel does not apply.

In my opinion, the judgment should be affirmed.

McAlvay, C. J., and Grant, Ostrander, and Moore, JJ., concurred with Carpenter, J.

Blair, J.

(dissenting). Plaintiff, an undertaker, of Tuscarora, Nev., brought this suit to recover a balance alleged to be due from defendants for coffin, services, etc., furnished and rendered in preparing the body of L. F. Harris, the father of defendant Allie Hulett, for shipment from Tuscarora to Armada, Macomb county, Mich., for burial. Upon the death of Mr. Harris, J. E. Douglass, noble grand of a Tuscarora Lodge of Odd Fellows, sent the following telegrams and received the following replies, viz.:

“Tuscarora, Nevada, November 37th. “Mrs. Alice Hulett, Armada, Mich.

“ Mr. L. H. Harris, your father, died here this morning at seven o’clock. How do you wish the remains disposed of ? If buried here, send age and place of birth.

“ J. E. Douglass.”

“Tuscarora, Nevada, November 37th, 1903. “Armada Lodge Number 493, I. O. O. F.,

“Armada, Mich.

“ Mr. L. H. Harris, of your lodge is dead. Telegraph instructions.

“ J. E. Douglass,

“N. G., Number 30, I. O. O. F.”

“Armada, Mich., November 37th, 1903. “To J. E. Douglass, Tuscarora, Nevada.

“ Send remains of L. H. Harris here. Charges guaranteed.

“Mrs. Alice Hulett.”

“Armada, Mich., November 37th, 1903. “J. E. Douglass,

“ N. G., Number 30, I. O. O. F.,

“ Tuscarora, Nevada.

“Send remains of Brother Harris here; charges guaranteed.

“ Burton Hodges, N. G.”

The telegram from Mrs. Hulett was sent at 5:47 p. m., and the telegram signed 4 4 Burton Hodges ” was sent at 7:55 p. m., November 37th. Mr. Wilder, the operator who sent and received the messages, was secretary of Armada Lodge. He sent the message to Mrs. Hulett, who lived in the country, by a Mr. Knickerbocker, who delivered it to Mr. Hulett. Knickerbocker reported: “Hulett instructed him to send a message to have the body forwarded,” and “ that he would pay the charges ; ’’ he said, “ Have Mr. Wilder have them forward the body on at my expense.” After sending the Hulett telegram, Mr. Wilder saw Dr. Hodges and reported the facts to him and other lodge members on the street, and the lodge telegram was sent to guarantee payment by Mr. Hulett. Mr. Hulett knew nothing about the sending of the telegram by Dr. Hodges until the next day. The plaintiff testified:

“Q. Who called you to attend the body of Mr. Harris and prepare it for burial ?

A. J. E. Douglass, as N. G. of Tuscarora Lodge, No. 30, I. O. O. F.

Q. What was the arrangement made as to your services, casket, etc. ?

“A. I was directed to do this work by Mr. J. E. Douglass. * * *

Q. What was your charge for the services, casket, etc., in such matter ?

A. One hundred and thirty-seven dollars.

Q. What amount has been paid you on that bill and by whom, was it paid for you ?

A. Twenty dollars by Mr. J. E. Douglass. * * *

“ Q. On what responsibility then did you do this work and furnish the casket, etc.?

A. On the responsibility of the telegram received by Mr. J. E. Douglass from Armada Lodge, I. O. O. F., directing the shipment of the body home.”

Mr. Douglass, noble grand of the Tuscarora Lodge, testified:

“ I stated the purport of those telegrams to Mr. W. S. Hillman.

‘1 Q. Upon what telegram or telegrams received by you was the responsibility taken of ordering the body of Mr. Harris prepared for shipment and there shipped ?

“A. On telegram from Armada Lodge.

“ Q. Who ordered Mr. Harris’ body prepared and then sent to his home ?

“A. I did, on the strength of telegrams from Armada Lodge.

“ Q. To whom was such order given ?

“A. ToW; S. Hillman.”

The body of Mr. Harris was shipped by express, charges prepaid, to Mrs. Hulett, and the bill was made out to her. Mr. Hulett paid to the Armada Lodge $100 received by Mrs. Hulett from a miners’ union, and the lodge paid $30 on the funeral expenses by an order drawn in favor of Mrs. Hulett. Statements of Mr. Hulett to witnesses at Armada were put in evidence, tending to prove that he recognized the indebtedness as his. Mr. Hulett claimed that in all that he did he was acting for his wife and not in his own behalf.

Among others, the circuit judge made the following findings:

“No credit was ever extended by the plaintiff to either of the Huletts, nor did he know them. The shipment was undoubtedly made and the other expense incurred upon the faith of the Tuscarora Lodge, who in turn looked to the Armada Lodge. But this would not preclude the plaintiff from bringing suit and recovering against any one actually liable. The expense was incurred directly upon the personal order of Bert Hulett.

“ So far as the question of agency between husband and wife is concerned, I have no doubt but that, where a husband orders funeral arrangements made for a wife’s deceased father, he is to be held personally liable unless it affirmatively appears that , all parties were informed distinctly that he was acting merely as his wife’s agent and did not intend to become personally responsible.

“ In my opinion, neither the doctrine of estoppel nor the statute of frauds is involved in this case at all.

‘ ‘ I have carefully examined all the briefs submitted to me, and can come to no other conclusion than that both the defendants are liable.”

Plaintiff’s counsel contend:

“ These facts present a simple case of agency, and the fact that Hulett, as principal, was not disclosed until after the services were performed and the body shipped, does not prevent a recovery from him, when it is learned that he was the undisclosed principal who authorized the expenditure and received the benefit of the services.

“ The undertaker knew, through the Tuscarora Lodge, that he was acting for a Michigan family in sending a dead father home.

“ The name of the head of that family he did not know, but the wife and local lodge had telegraphed that the charges would be paid, and on the strength of these telegrams plaintiff acted. We have now. shown that appellant was the head of that family; that he authorized the expenditure through his own agents; that both Wilder and the Tuscarora Lodge were his agents; we have traced the services and the casket to him, and know he used them, and have done all that is required of us to recover against him for such services and goods.

“Not only did defendant Hulett expressly authorize the incurring of these expenses, but he has since ratified them by his conduct, and is now estopped from denying h'is liability.”

It is clear that no contract relations existed between the defendant Bert Hulett and the plaintiff. Neither did any contract relations exist between Bert Hulett and the lodge at Tuscarora or at Armada. So far as the Armada Lodge was concerned, he did not request it to guarantee payment of the charges, nor did he know that it had done so until afterwards. He did not communicate to the lodge his action nor authorize the telegraph operator to do so, and the most that can be claimed is that he ratified the action of the lodge after he learned of it. The operator was not the agent or representative of Mr. Hulett, and had no power to bind him; he was merely the messenger to transmit the message sent to the Tuscarora lodge. Neither was the operator the agent of the plaintiff or the Tuscarora Lodge, and anything said to him through Knickerbocker was of no avail to confer any rights upon the plaintiff except as transmitted to the plaintiff and acted upon by the plaintiff. This was not a transaction with an undisclosed principal. The principal was disclosed by the telegram. Plaintiff understood that Mrs. Hulett was the principal; he made out his bill to her, and the body was shipped in her name. Both of the telegrams were stated to plaintiff, and he rendered the services and furnished the coffin, etc., as held by the court, upon the faith of Tuscarora Lodge, which was his employer, and which, in turn, relied upon Armada Lodge. I do not think that it can be said, “ The expense was incurred directly upon the personal order of Bert Hulett,” so far as the plaintiff is concerned. The expense was in- ' curred directly upon the order of Tuscarora Lodge, guaranteed by Armada Lodge. Mrs. Hulett was liable, because her name was properly signed to the telegram by her authority, and because she actually did order the shipment, to the knowledge of the plaintiff. So far as the plaintiff was concerned, he was in no wise deceived or misled; he acted upon the facts as they were presented to him by telegrams, which spoke for themselves and could not be misunderstood. In order for the doctrine of undisclosed principal to apply, some one must have assumed to act as agent. There was no such situation here. Armada Lodge never assumed to act as agent for Hulett; they guaranteed payment. To hold otherwise, requires the postulate of an undisclosed agent as well as an undisclosed principal. In the case of Heyn v. O'Hagen, 60 Mich. 150, the shoemaker who ordered the goods represented to the seller that he was the agent of the defendant, and the court held that the defendant, by his conduct, ratified the representation. In the present case, Armada Lodge never represented itself, either expressly or by implication, as the agent of the defendant Mr. Hulett, and the goods were not furnished in reliance upon his responsibility. The case is not an authority for the alleged ratification in this case. It, therefore, follows that the plaintiff cannot recover in this case upon the basis of express contract, but only, if at all, upon the basis of an implied contract to pay for materials furnished and services rendered for defendant’s benefit and accepted by him. 9 Cyc. p. 254 (III); Litchfield v. Garratt, 10 Mich. 426; Turner v. McCarty, 22 Mich. 265; Wheeler v. Stewart, 94 Mich. 445; Bailey v. Rutjes, 86 N. C. 517.

This case is the converse of Downing v. Buck, 135 Mich. 636. In that case the defendant did not know that the plaintiff was rendering services for him, and it was therefore held that he was not liable for such services. In this case the plaintiff did not know that he was rendering services for the defendant Bert Hulett, but plaintiff’s proofs tended to show that the defendant intended that the services should be rendered for him, directed the telegraph operator to wire that the body should be sent at his expense, arranged with another to pay the charges even to the amount of $280, if the body arrived when he was not at the station, made payments on the bill without objection, except as to the amount, and throughout recognized the liability as his, and appropriated and received the benefit of the plaintiff’s services and property furnished. Under such circumstances, a finding that Hulett was really acting in his own behalf would be supported by evidence, and he might properly be held liable for the value of the articles furnished and services performed. On the other hand, if it were found that Hulett was really acting for his wife, as he claimed, he would not be liable.

It is contended by défendant’s counsel that there was no evidence of the value of the articles furnished or services rendered, and that for this reason a judgment should have been rendered in his favor. Upon this point, the court said:

“ The proofs show that Mr. Harris died; that his body was prepared for burial by the plaintiff; that it was shipped to Armada in a casket furnished by him; it arrived there and was buried in the casket provided by the plaintiff; it is, I take it, practically undisputed that all the services charged for were furnished. Defendants saw and had opportunity to inspect the materials, quality, etc., of the goods provided. These facts, in connection with the deposition of W. S. Hillman, it seems to me, sufficiently cover the ground.”

The only testimony upon the .question of value was that of the plaintiff, above quoted, that his “charge, for the services, casket, etc.,” was $137, and the following from the testimony of Mr. Hulett:

“Q. What is the balance due at the present time ?

“A. I believe that it is a hundred seventeen dollars and a half.

“Q. That is the correct amount due on the account ?

“A. That is what they claim on it.”

We do not think there was any competent evidence of the value of the services or materials furnished. The word “charge” is not synonymous with “value.” Under his testimony in this case, plaintiff could not be convicted of perjury if it should turn out that there was a gross overcharge. Defendant, if liable, could only be held for the value of the services and materials which he appropriated, and not for any fancy sum which plaintiff saw fit to charge. We think it manifest that defendant did not intend to admit that there was any specific sum due, but simply that a certain balance was claimed to be due. The case of Ducoign v. Schreppel, 1 Yeates (Pa.), 347, holds that a day book is prima facie evidence, not only of the delivery of goods, but of their prices. It is said in the short per curiam opinion:

“ How else could the prices of broadcloths, linen, cambric, etc., of different degrees of fineness, be ascertained after a length of time ? A contrary doctrine would render our üsage of small advantage to the mercantile or mechanical part of the community. * * *

“ The necessity of the case, however, which gave birth to our practice in this particular, by no means warrants that entries in day books should be considered as evidence of money lent or cash paid.”

I do not think this case is in point. Books of account are only admissible upon proof of their correctness, and, if the case cited holds to the contrary, which I do not understand to be the case, it would be contrary to numerous decisions of this court. Cameron Lumber Co. v. Somerville, 129 Mich. 552. In my opinion, the case of Farrington v. Wright, 1 Minn. 241, is directly in point as to the construction which should be given to the plaintiff’s testimony. In that case, the defendant in his answer admitted all of the material allegations of the complaint, but alleged by way of counterclaim that “ the defendant charged for his commissions thereon twenty-five dollars, leaving a balance of $268 in favor of the plaintiff.” The court say:

“The counterclaim for commissions is not adequately alleged in the answer to make it available to the defendant below. The allegation is that he ‘charged twenty-five dollars for his commission.’ He does not allege that the charge was true, or that the services for which he made the charge were worth that or any other sum. In verifying the answer, he, in effect, only swears that he charged that sum, and not that the charge itself was true or just. I do not think that the allegation is sufficient to admit proof to sustain a claim of twenty-five dollars or any less sum for commissions. The existence of such a claim is not alleged, nor can it be implied from the statement that he charged it. Proof that he made the charge, which is all that is alleged, would not alone sustain a claim for the amount charged, or any less sum. Proof of other facts, not alleged, would be required to resolve the charge into a valid legal claim.”

The testimony of the plaintiff was taken by deposition, apparently at Tuscarora, Nevada, and there does not seem to have been any cross-examination. If the value of “ the services, casket, etc.,” for which the plaintiff’s “charge” was $137, had been known to him to have been only $50, an indictment for perjury could not have been maintained upon this testimony, because, as said by the supreme court of Minnesota, ‘ ‘ he does not allege ( swear) that the charge is true or that the services for which he made the charge were worth that or any other sum.”

Neither do I think it ought to be held that the defendant acquiesced in a supposed erroneous construction by plaintiff’s counsel of the effect of his testimony. I know of no rule of law which requires defendant’s counsel, during the course of the trial, to inform plaintiff’s counsel that, although he thinks he has proved his case, he has failed to do so. Defendant’s plea put every material fact in issue. The burden of proof was upon the plaintiff to establish every material fact by at least prima facie evidence. He failed to do so, and the defendant was, I think, within his legal rights in raising the question as he did at the close of the case. At the close of the testimony, the record contains the following:

“And after such testimony was given, the cause was submitted to the said court for decision without oral arguments, but upon written briefs, in which said briefs counsel for defendants, among other things, raised the objection to there being no proof made of the value of the labor and materials for which recovery was sought in this case.” .

I think also that the testimony of Mr. Hulett on cross-examination was notice to plaintiff’s counsel that he did not intend to admit that the balance claimed to be due was correct. He testified: •

“ Q. What is the balance due at the present time ?

“A. I believe that it is a hundred seventeen dollars and a half.

Q. That is the correct amount due on the account ?

“A. ,That is what they claim on it.”

' Until the plaintiff put in some evidence of the value of the services and materials, defendant was not called upon to produce testimony upon that subject.

The judgment should be reversed as to the defendant Bert Hulett, and new trial granted.

Montgomery and Hooker, JJ., concurred with Blair, J.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
      In re ROGERS’ ESTATE.
    Taxation — Inheritance Tax — Nonresident Decedent — Situs oe Property.
    Mortgages, notes, and land contracts, representing property-situated in Michigan, owned by and in actual possession of a nonresident at the time of his death in another State, are subject to the succession tax imposed by Act No. 195, Pub. Acts 1903, since collection of the debts secured upon land cannot be enforced, nor the estate properly administered and closed, without the aid of the laws of this State.
    Case made from Livingston; Miner, J.
    Submitted April 15, 1907.
    (Docket No. 54.)
    Decided July 15, 1907.
    James B. Bradley, auditor general, appealed to the. circuit court from an order determining that certain property was not subject to an inheritance tax. There was judgment for the auditor general, and Polly M. Rogers, ancillary administratrix of the estate of Hosea Rogers, deceased, appeals.
    Affirmed.

      Shields & Shields, for appellant.

      John IS. Bird, Attorney General (J. Shurly Kennary and Thomas Ambrose Lawler, Assistant Attorneys General), for appellee.
   Moore, J.

This is a case brought for the purpose of recovering, under the provisions of Act No. 195 of the Public Acts of 1903, an inheritance tax. The probate court held it could not be recovered. The circuit court held it could. The facts are not disputed, and, briefly stated, are as follows: Hosea Rogers died at his home in the State of New York in 1904. Administration of the estate was granted in New York. Ancillary proceedings were had in Livingston county, in this State. All of the estate which in this proceeding is sought to be bound with an inheritance tax consists of mortgages, notes, and land contracts. All the devisees, legatees, and heirs at law of Mr. Rogers reside in New York. At the time of his death all the mortgages, notes, land contracts, and papers representing property in the State of Michigan were in the actual possession of Mr. Rogers at his residence in New York, and were habitually kept by him at his residence in the State of New York. The mortgages were upon real estate in Livingston county, Mich., and were recorded in that county. Thomas Gordon, Jr., acted as agent for Mr. Rogers in making loans. He had temporary custody of the funds or securities. He never had power to discharge or modify mortgages or other papers, and acted at all times under the specific directions of Mr. Rogers.

It is the claim of the estate that the situs of this very property has been established as in the State of New York. Village of Howell v. Gordon, 137 Mich. 517. The domicile of the parties owning it, both at the time of Mr. Rogers’ death, and now, is in the State of New York, and therefore the property is not subject to an inheritance tax in this State. Several authorities are cited in support of this claim, and it is insisted the case is controlled by the Iowa case of Gilbertson v. Oliver, 139 Iowa, 568 (4 L. R. A. [N. S.] 953). In that case the justice writing the opinion said:

“The controversy presents for determination but one legal question, namely: Was the property of the deceased within the jurisdiction of this State at the time of her death ? There is a conflict in the adjudicated cases as to whether such evidences of indebtedness are taxable at the domicile of the owner, or whether the actual situs of such property, and not the domicile of the owner, determines the liability to taxation. The great weight of authority, however, supports the holding of our own cases that this species of personal property, which is in a sense intangible and incorporeal, is taxable at the domicile of the owner, and not elsewhere, unless the owner has himself given it a different situs.”

This is not in harmony with In re Stanton’s Estate, 142 Mich. 491. On the part of the State it is insisted the inheritance tax can be collected, and that the case is controlled by In re Stanton’s Estate, supra, In re Merriam’s Estate, 147 Mich. 630, and Blackstone v. Miller, 188 U. S. 189.

It is clear the mortgagee named in the mortgage could not preserve his lien on the real estate against creditors and subsequent purchasers without complying with the registry law of the State. If the debts secured by the mortgages are not paid, they cannot be collected without the aid of the laws of the State. The estkte of Mr. Rogers cannot be properly administered and closed without ancillary letters of administration obtained under the laws of this State. In this connection, the language used by Justice Holmes in Blackstone v. Miller, supra, is pertinent. We quote:

‘ ‘ If the transfer of the deposit necessarily depends upon and involves the law of New York for its exercise, or, in other words, if the transfer is subject to the power of the State of New York, then New York may subject the transfer to a tax. United States v. Perkins, 163 U. S. 625, 628, 629; McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 429. But it is plain that the transfer does depend upon the law of New York, not because of any theoretical speculation concerning the whereabouts of the debt, but because of the practical fact of its power over the person of the debtor. The principle has been recognized by this court with regard to garnishments of a domestic debtor of an absent defendant. Chicago, etc., R. Co. v. Sturm, 174 U. S. 710. See Wyman v. Halstead, 109 U. S. 654. What gives the debt validity ? Nothing but the fact that the law of the place where the debtor is will make him pay. It does not matter that the law would not need to be invoked in the particular case. Most of us do not commit crimes, yet we nevertheless are subject to thé criminal law, and it affords one of the motives for our conduct. So, again, what enables any other than the very creditor in proper person to collect the debt ? The law of the same place. To test it, suppose that New York should turn back the current of legislation and extend to debts the rule still applied to slander that actio personalis moritur cum persona, and should provide that all debts hereafter contracted in New York and payable there should be extinguished by the death of either party. Leaving constitutional considerations on one side, it is plain that the right of the foreign creditor would be gone.

“Power over the person of the debtor confers jurisdiction, we repeat; and, this being so, we perceive no better reason for denying the rights of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the, State at the time of the death. The maxim ‘Mobilia sequuntur personam’ has no more truth in the one case than in the other. When logic apd the policy of a State conflict with a fiction due to historical tradition, the fiction must give way.

“ There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign-Held Bonds, 15 Wall. (U. S.) 300. The taxation in that case was on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337. Therefore, considering only the place of the property, it was held that bonds held out of the State could not be reached. The decision has been cut down to its precise point by later cases. Savings & Loan Society v. Multnomah County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U. S. 309, 319, 320. In the case at bar, the law imposing the tax was in force before the deposit was made, and did not impair the obligation of the contract, if a tax otherwise lawful ever can be said to have that effect. Finney v. Nelson, 183 U. S. 144, 147. The fact that two States, dealing each with its own law of succession, both of which the plaintiff in error has to invoke for her rights, have taxed the right which they respectively confer, gives no cause for complaint on constitutional grounds. Coe v. Errol, 116 U. S. 517, 524; Knowltonv. Moore, 178 U. S. 53. The universal succession is taxed in one State; the singular succession is taxed in another. The plaintiff has to make out her right under both in order to get the money. See Adams v. Batchelder, 173 Mass. 258.”

It is suggested that because, when the opinions in Re Stanton’s Estate, and in Re Merriam’s Estate, supra, were written, the cases arose under section 21, Act No. 188 of the Public Acts of 1899, as section 21 has been amended, those cases are not controlling. The amendment is found in Act No. 195 of the Public Acts of 1903. It consists simply in eliminating from section 21 the words “ over which this State has any jurisdiction for the purposes of taxation.” We do not think the effect of the amendment is to narrow the provisions of the statute as they existed when the decisions were rendered. We think the case in principle is within In re Merriamis Estate,. and Blackstone v. Miller, supra.

Judgment is affirmed.

McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
      In re SCHNAPKA.
    1. Time — Computation—Service—Process—Notioes.
    The rule that fractions of a day are not recognized in law, and that in computing the time for service of process the day of issuance is excluded and the day of appearance included, does not apply to notices measured by hours.
    2. Insane Persons — Commitment—Notice—Sueeioienoy.
    An order of the probate court, entered on March 31st, fixing April 1st, at 4 o’clock in the afternoon, as the time of hearing on a petition for the commitment of an alleged insane person, and requiring service on her of notice of the proceedings at least 24 hours before the time set, and a sworn return of service of the required notice dated March 31st, followed by an order of commitment reciting that due notice as required by law and directed by the court had been made, raises a fair presumption that service was made in time to give the court jurisdiction to make the order of commitment.

      Certiorari to Kalamazoo; Adams, J.
    Submitted June 4, 1907.
    (Calendar No. 22,299.)
    Decided July 15, 1907.
    Habeas corpus proceedings by Anton Schnapka to obtain the release of Katie Schnapka, his wife, from the Michigan Asylum for the Insane. There was an order remanding her to the custody of the asylum, and petitioner brings certiorari.
    Affirmed.

      Harry C. Howard, for petitioner.

      John E. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   Moore, J.

This is certiorari to review habea's corpus proceedings had before the circuit judge of Kalamazoo county, who after a hearing remanded Katie Schnapka to the custody of the Michigan Asylum for the Insane.

Counsel for the relator say:

‘ ‘ The only point relied upon by your petitioner, and the only point sought to be raised by this petition, is that the probate court had no jurisdiction to make the order, a copy of which is contained in the petition for the writ of habeas corpus and in the answer of the medical superintendent, for the reason that the records in the probate court do not show that service of a notice of the petition was had on Katie Schnapka at least 24 hours before the hearing as required by section 16, Act No. 217 of the Public Acts of 1903.”

The material parts of the order by virtue of which Mrs. Schnapka is detained read as follows:

“Ata session of said court held at the probate office in the city of Kalamazoo, in said county, on the 1st day of April, A. D. 1905.

“ Present: Hon. George P. Hopkins, judge of probate.

“In the Matter of Katie Schnapka, Insane.

“This day having been appointed for hearing the petition of Antoine Schnapka, praying that said Katie Schnapka be admitted to the Michigan Asylum as a public patient, and due notice of the hearing on said petition having been given as required by law and as directed by said court, the said petitioner appeared personally. It appearing to the court, upon filing the certificates of two legally qualified physicians and after a full investigation of said matter, without the verdict of a jury, that said Katie Schnapka is insane, and a fit person for care and treatment in said asylum, and that she should be admitted to said asylum as a public patient.”

Prior to making the order just quoted, the court made an order which, omitting some of the formal parts thereof, reads as follows:

“At a session of the.probate court for the county of Kalamazoo, holden at the probate office in Kalamazoo, in said county, on Friday, the 31st day of March, in the year one thousand nine hundred and five.

“Present: Hon. George.P. Hopkins, judge of probate.

“In the matter of Katie Schnapka, Alleged Insane.

“On reading and filing the petition, duly verified of Antoine Schnapka, of the city of Kalamazoo, alleging that said Katie Schnapka, of the' second ward óf the city of Kalamazoo, is insane, and praying that she may be admitted on the order of said court, to the Michigan Asylum for the Insane at Kalamazoo, and there supported as a public patient.

“Thereupon it is ordered that Saturday, the 1st day of April, A. D. 1905, at 4 o’clock in the afternoon, be assigned for the hearing of said petition, and that the said Katie Schnapka and all other persons interested in said matter are required to appear at a session of said court, then to be holden at the probate office in Kalamazoo, in said county, and show cause, if any there be, why the prayer, of the petitioner should not be granted.

“And it is further ordered, that said petitioner give notice to the persons interested in said matter of the pend-ency of such petition, and the hearing thereof, by causing a copy of this order to be personally served at least 24 hours previous to said time of hearing upon the said Katie Schnapka.”

Upon the back of the last-named order is a sworn return by John P. Shields “that on the 31st day of March, A. D. 1905, he served a true copy of the order, * * * on the within named Katie Schnapka,” by delivering the same to her personally in the county of Kalamazoo. The circuit judge, upon a hearing, was of the opinion that the probate court had jurisdiction to make the order. He also found as a fact that Mrs. Schnapka was- insane at the time she was committed to the asylum, and is still insane.

It is the contention of counsel for the relator that the authority of the probate court to deal with insane persons is derived wholly from the statute, and that because it does not affirmatively appear that service was made 24 hours before the hearing that the probate court had no jurisdiction to make the order. The proceedings in probate court were had under the provisions of Act No. 217 of the Public Acts of 1903. Section 16 of that act provides for a 24-hour notice. Counsel say fractions of days are not recognized in law; that in Michigan the rule for the computation of time always excludes issuance day while the appearance day is included. We think this rule does not apply where the requirement relates to notices measured by hours. Act No. 217 does not provide in terms the manner in which a return of service of notice of hearing shall be made. In Gillett v. Needham, 37 Mich. 147, there is a pretty clear intimation that proof of the service of an order might be shown in other ways than by a sworn return. It does appear from the record that the petition for the commitment of Mrs. Schnapka was made by her husband on March 31st. It stated his wife was a resident of the second ward of •Kalamazoo. The sessions of the probate court are held in Kalamazoo. On the same day the petition was made the court made an order for a hearing on the following day at 4 p. m., and requiring a copy of the order to be personally served at least 24 hours upon Mrs. Schnapka. Upon the same day this order was made a sworn return of personal service was made. Upon the 1st of April a hearing was had, and an order was made in which it was recited, “and due notice of the hearing on said petition having been given as required by law and as directed by said court.”

We have then a petition filed by the husband in the probate office on March 31st, asking for the commitment of an alleged insane wife who resides in the same city where the court is held. Following the. making of the petition, an order of hearing is made, fixing the time at 4 p. m. of the following day at the probate office in Kalamazoo. On March 31st sworn proof of personal service of the order is made. On April 1st a hearing is had, and, as before stated, an order is made in which it is recited that due notice as required by law and directed by the court had been made. It is clear that, if service of the order was made any time before 4 p. m. on March 31st, the full time directed by the court would have elapsed. We think it a fair presumption from what does appear that service was made in time to give the court jurisdiction. Having reached this conclusion, it is unnecessary to discuss the other interesting questions presented by the brief from the office of the attorney general.

Judgment of the court below is affirmed.

McAlvay, C. J;, and Carpenter, Grant, and Blair, JJ., concurred.


author: Grant, J.

text:
    WHEAT v. VAN TINE.
    1. Estoppel — Equitable Estoppel — Acquiescence in Acts of Defendant.
    Where a landowner authorized and assented to the removal by village officers of earth from the street in front of his premises, he is estopped to complain of such removal to the extent to which he authorized it.
    2. Municipal Corporations — Streets—Establishing Grade— Lowering Surface — Liability to Landowner.
    Where no street grade has been legally established in a village, a landowner cannot recover damages from the village for " removal of earth from the street in front of his property for the improvement of the street.

    3. Same — Council Proceedings — Record—Parol Evidence — Admissibility.
    Though parol evidence is not admissible to contradict the record of the proceedings of the common council of a village, it is admissible to show facts omitted from such record, since the failure of the clerk to properly enter such proceedings cannot affect the rights of individuals who have acted upon the faith of the action of the council, in fact duly taken, but not recorded.
    4. Same — Acts of Officers — Ratification—Allowance of Bills —Parol Evidence.
    Parol evidence is admissible to show that certain bills, audited and approved by a village council with full knowledge of their contents, included the expense of a certain street improvement for the making of which no record authority appears, since what the council could authorize it could ratify, and the allowance of the bills was a sufficient ratification.
    5. Same — Liability of Officers — Acts Authorized by Council —Ratification.
    In an action against village officers for unauthorized removal of earth from the street in front of plaintiff’s property, evidence examined, and held, to conclusively establish that defendants’ acts were ratified by the council of the village, and that a verdict for defendants might properly have been directed on that ground.
    Error to Tuscola; Beach, J.
    Submitted June 11, 1907.
    (Docket No. 69.)
    Decided July 15, 1907.
    Trespass quare clausum freg'it by Frederick S. Wheat against George Yan Tine and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed.
    Plaintiff is the owner of a lot fronting on Aimer street, and also another three-cornered lot located between Almér and Grant streets in the village of Caro. Lot 1 is located at the crest of what is called “Wheat’s Hill.” Aimer street extends over this elevation. At the foot of the hill on Aimer street is a ravine through which in time of rains water flowed and washed away the culvert. This had happened two or three times. It was finally determined by the village authorities to construct a cement culvert with a retaining wall to be built on the adjoining land owned by one Pattersón, and the proper resolution was adopted. The work was completed, and two years after its completion the plaintiff brought this action of trespass. Of the defendants one is president of the village, another the street commissioner, the others members of the council and of the street and sidewalk committee. The defendants with their plea gave notice that the work was done under the direction of the common council and was ratified and confirmed by the council, and that the defendants as village officers, in directing this work, did no more than to put the street in a reasonably safe condition and fit for travel. The act of trespass alleged is removing the dirt from the street in front of plaintiff’s land and thereby lowering it and causing damage to his land. The theory of his claim is that the defendants acted without any record authority of the common council, that their acts were not properly ratified, and that they were therefore trespassers.

      The defendants’ theory is that plaintiff invited, assented to, and participated in the acts complained of; that defendants, as officers of the village, were performing necessary work upon the public streets to make them reasonably safe and fit for travel; that, as no grade had been formerly established on this street, the village council could authorize the hill to be cut down without liability to abutting property owners; that any act which the common council could authorize they could ratify; that payment of the bills for the work done, by the authority of the council, was a ratification of the acts of the defendants ; and that no damage had been done to the plaintiff’s property. The case was submitted to the jury upon this theory, and a verdict rendered for the defendants.

      Byron L. Bansford (Frederick S. Wheat, of counsel), for appellant.

      Pulver & Smith, for appellees.

      As to abutting owner’s right to damages arising from grading street where no grade formerly established, see note to Hickman v. Kansas City (Mo.), 23 L. R. A. 658.

   Grant, J.

(after stating the facts). Plaintiff’s lots were vacant and unimproved. Near the crest of the hill • opposite one lot a mudhole existed in the center of the street, which was bad in wet weather. There were no gutters on the sides of the roadbed. The village authorities and plaintiff recognized the necessity and propriety of fixing the street and the culvert. Plaintiff admitted that he pointed out to the defendants how they might make a grade and excavation by reducing the surface of the street opposite his land, at no point more than eight inches, and thus obtain sufficient earth to fill the street on each side of the culvert which was then being constructed. This suggestion or request from him was reported to the common council. The common council approved the proposition, and directed the work to be done — without entering it upon their records — and one of the defendants reported the action of the council to the plaintiff. Soon thereafter, and before the work was completed, plaintiff went away, and before he returned the work was accomplished. The edge of the roadbed was 17 feet distant from the plaintiff’s lot. It appears to be 'conceded that the work was essential to a good roadbed, and that it was properly executed. The roadbed before this work was done was lower than the surface of plaintiff’s lot, but just how much does not distinctly appear. His own witness, one Leonard, a surveyor, testified that the bottom of the gutter was three feet and one or two inches from the surface. He could not tell how much higher the roadbed was than the gutter. He further testified that gutters were necessary, and that the work was “just what it ought to be.” Plaintiff’s own employes removed earth from the street to his lot during the progress of the work. Plaintiff makes no complaint of the work in so far as it corresponded with his consent and understanding as above stated. His complaint is that the removal of the earth was not in accordance with that understanding. He testified :

“I had consented to the removal of a part of the surface soil, but below what we agreed upon I claim is an unwarranted interference.”

Whether the earth was excavated to a greater depth than eight inches was a disputed question of fact.

In so far as this work was authorized and assented to by the plaintiff, he is now estopped to complain. No grade had been established, and therefore plaintiff could not recover damages against the municipality. Cumming v. Dixon, 139 Mich. 269.

The main complaint is that parol testimony of the action of the common council was allowed. Parol evidence is not admissible to contradict the record of the proceedings of the common council. It is admissible, however, to show facts omitted therefrom. The failure of a clerk to properly enter such proceedings cannot affect the rights of individuals who have acted upon the faith of the action of the council, in fact duly taken, but not recorded. Township of Taymouth v. Koehler, 35 Mich. 21.

Whether there is evidence in this case showing an unrecorded action of the common council within the above-cited decision it is not necessary to determine, as the judgment must be affirmed on another point. The main claim of the defendants is that bills were rendered for this work and were approved by the council. These bills did not specifically state where the work for which they were rendered was done. Under the above authorities it was competent to show by parol that the bills included this work, and that they were approved by the council with knowledge of that fact. Such testimony did not contradict the record, but only explained it. What the common council could originally authorize they could subsequently ratify. The allowance of the bills was a sufficient ratification. Davis v. Mayor, etc., of Jackson, 61 Mich. 530.

The court instructed the jury that—

“The defense claims that, as the work progressed after it was completed, the common council had knowledge of what was being done, and that they afterward ratified what had been done. Now that is a question of fact for you. If the council, subsequent to the completion of the work, ratified the action of the commissioner and the committee and the president, that would be a complete defense. * * * If, as I say, they had knowledge, as a body, of the work progressing, and then deliberately paid the bills understandingly, that would be evidence which goes to you upon the question as to whether the council had ratified and accepted and adopted the work of the commissioner and approved of it. ”

The fact of ratification was conclusively established, and the court might properly have directed a verdict upon this ground. It therefore becomes unnecessary to discuss other alleged errors.

Judgment affirmed.

McÁlvay, C. J., and Carpenter, Blair, and Hooker, JJ., concurred.


text:
    WISNER v. WISNER.
    Divorcie — Cruelty—Nonsupport—Evidence—Sufficiency.
    On a bill by a wife for divorce on the grounds of cruelty and nonsupport, evidence examined, and held, insufficient on^ either ground to support a decree.
    Appeal from Wayne; Rohnert, J.
    Submitted June 18, 1907.
    (Docket No. 125.)
    Decided July 15, 1907.
    Bill by Anne Eliza Wisner against Ralph E. Wisner for a divorce. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Rufus G. Lathrop, for complainant.

      Joseph R. Nolan, for defendant.
   Moore, J.

This is a bill for divorce upon the ground of extreme cruelty. The defendant appeared and answered the bill of- complaint. He denied most of the averments, and set up an explanation of some of the others. Proofs were taken. At the time of settling the decree proposed by the solicitor for complainant, defendant objected for the following, among other, reasons:

(1) That the proofs utterly fail to make out a case on the ground of extreme cruelty.

(2) That the bill of complaint does not allege a cause of divorce for nonsupport under 3 Comp. Laws, § 8622.

(3) That the court was without authority to decree permanent alimony, as there was nothing in the hill of complaint to indicate that property interests were involved, and no subpoena with an underwriting to that effect served on defendant.

The circuit judge overruled the objections and granted a decree of divorce and for alimony. The case is brought here by appeal.

Did the proofs make out a case of extreme cruelty? The cruelty alleged is that defendant is a confirmed gambler; that he stayed away from home nights, visiting gambling houses; that he left complainant and her child for long periods without money or means to satisfy their needs; that defendant took complainant’s money, and pawned her jewelry, and lost the same gambling; that he has utterly failed and neglected to provide complainant with many of the necessities of life.

The record discloses that the parties were married in October, 1902. A child was . born to them, who is now nearly four years old.. At the time' of their marriage defendant gambled some, and that fact was known to his wife. The habit grew upon him, so that he neglected his business. He used some of complainant’s money, and pawned some of her jewelry, to indulge his taste for gambling. The wife sometimes knew he did this, and we think the record discloses that she did not wholly disapprove of it. They continued to live together until the summer of 1905, when defendant went to New Mexico to commence life anew. We think the record fairly discloses that, during the last year the parties lived, together, defendant did no gambling, except in his own house or in the houses of his friends, 'in parties planned by his wife or those given in return for parties planned by her. In these games the complainant and her lady friends joined, and the amounts at stake were trifling. The complainant says she planned these parties to keep her husband away from gambling resorts. Defendant says his going to New Mexico was mutually agreed upon, and that his wife was to follow him when he sent for her; that he did send for her, and sent her money to come; and that she declined to come. The amount of money sent was $55. The defendant says that would have been ample. It was shown by a railroad ticket agent in Detroit that the railroad fare and sleeping berth would cost $50.80, and the trip would take 48 hours if the trains ■ made connection, and the solicitor for complainant argues that the sum sent was not enough. The complainant telegraphed her husband, “Have decided not to come,” but did not suggest that the reason why was because he had not sent her money enough. The testimony of the complainant shows she was friendly with her husband when he went to New Mexico, and accompanied him to the train. It was arranged that she and the child should stay w-ith defendant’s father and mother while he was establishing himself in New Mexico.

On the cross-examination of complainant the following occurred:

“Q. Your sister resides out there ?

“A. Yes, sir.

Q. Wasn’t it understood that you were going to Raton and make a home there ?

“A. No, sir.

“Q. How did you come to send him that telegram, ‘ I have decided not to come ? ’

“A. I said I would consider going down there if he sent me the money and returned my diamond ring, and he failed to do that later on.

“Q. You did send him the telegram, ‘I have decided not to come ? ’

“A. Yes, sir.

“Q. And before that you had agreed to meet him at Raton ?

“A. Only under two conditions.

“Q. And there was nothing to it about that ?

“A. Yes, sir.

“Q. What were the conditions ?

“A. He did not return me my diamond ring, and he did not give me enough money to come.”

In addition to this, she stated that she did not want to take the chances of going so far until she knew her husband could take care of her. The husband claims he was able to take care of her, and would have been glad to do so if she had come to him, and would be glad to support her now if she would live with him.

We have already spoken of the fact that she did not suggest to him he had not sent her money enough to pay her railroad fare. It is claimed he did not send her money enough to care for her and the child, either before he went to New Mexico or afterwards, and that after he went to New Mexico her brother supported complainant. Whatever may have been the derelictions of defendant before he went to New Mexico, it is clear complainant did not regard them as causes for not living with him, and made no suggestion that she intended to leave him. It is a fair inference from the testimony that she intended to join him in New Mexico, and we have no doubt, had she written him, when she sent the telegram before mentioned, that he had not sent her money enough to enable her and her child to come in comfort, that he would have sent her more.

Mr. Wisner went to New Mexico in June, 1905. October 14th of the same year Mrs. Wisner telegraphed him, “ Have decided not to come.” She filed her bill of complaint in 1906. It is urged as a ground of cruelty that Mr. Wisner sent his wife but |55 after he went to New Mexico. It already appears for what purpose the $55 was sent. The record fails to show that Mrs. Wisner asked him to send her more money. It also fails to show a condition of affairs that amounts to extreme cruelty or nonsupport in the eyes of the law. It is not necessary to discuss the other propositions.

The decree is reversed, and bill dismissed, but without costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    TIMM v. COMMON COUNCIL OF THE VILLAGE OF CALEDONIA STATION.
    1. Municipal Corporations — Intoxicating Liquors — Regulation-Charter Powers — Saloon Limits.
    Where the power to regulate- and prescribe the location of saloons is expressly given to a municipality, an ordinance fixing a saloon district is a valid exercise of the power.
    2. Same.
    Charter power to a municipality to “suppress” saloons does not authorize an ordinance establishing saloon limits.
    3. Same — Ordinances—Validity—Presumptions.
    A grave doubt as to the power of a municipality to pass an ordinance should be resolved against the existence of the power and the ordinance declared invalid.
    4. Intoxicating Liquors — Villages—Ordinances—Establishing Saloon Limits.
    A village organized under the general village law (chapter 87, 1 Comp. Laws) has no power to establish saloon limits and prohibit the sale of liquors outside such limits.
    Certiorari to Kent; Perkins, J
    Submitted June 18, 1907.
    (Calendar No. 22,285.)
    Decided July 15, 1907.
    Mandamus by John C. Timm to compel the common council of the village of Caledonia Station to approve á liquor bond. There was ah order granting the writ, and respondent brings certiorari.
    Affirmed.

      Garroll & Nichols, for relator.

      Dunham & Dunham (E. J. Adams, of counsel), for respondent.
   Ostrander, J.

The relator, Timm, desires to engage in the business of selling at retail intoxicating liquors in the village of Caledonia Station. He was refused the privilege, because the place of business designated is outside of a saloon district fixed by ordinance. He complains of an attempted abridgment of his right under the general law to engage in the business by an ordinance alleged by him to be void.

The questions presented in argument are: First, whether the council of a village organized under the provisions of chapter 87, 1 Comp. Laws, with power to pass ordinances ‘ ‘ to suppress saloons for the sale of spirituous and intoxicating liquors, ” may by ordinance fix a saloon district within the village and prohibit the carrying on of the business at any place outside of the district; second, if the power exists, whether the particular ordinance is reasonable.

The village of Caledonia Station has about 500 inhabitants. It has a hotel, which is within the saloon district, in which liquors are sold. It has power “to regulate, license, or suppress” billiard tables, “to suppress” gaming, “to regulate and license ” public shows, “to regulate or prohibit”sales of property at auction, “to prohibit and suppress” disorderly houses, “to regulate or prohibit’’bathing in rivers, “to regulate or prohibit’’the selling and storing of combustibles, and finally, “to adopt such other ordinances and make such other regulations for the safety and good government of the village and the general welfare of its inhabitants as are not inconsistent with the general laws of this State.” It will he noticed that the terms “ prohibit ” and “ suppress ” are sometimes used in the statute in a manner indicative of the idea that they are not interchangeable or synonymous, and that in respect to some matters there is conferred power to regulate or prohibit. Strictly, the word “prohibit ” means to forbid or interdict by authority, hinder, debar, prevent; the word “ suppress',” to subdue, overpower, quell, crush, stamp out. In the matter here presented, the words can have but one and the same mean-ing. Where the power to regulate and prescribe the location of saloons is expressly given to a municipality, an ordinance fixing a saloon district is a valid exercise of the power. Johnson v. Bessemer Common Council, 143 Mich. 313; Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580). So the power in question here may be exercised to suppress — that is, prohibit- — saloons. Rattenbury v. Village of Northville, 122 Mich. 158; Post v. Village of Sparta, 58 Mich. 212. That the power to regulate is not power to prohibit has been many times decided (Black on Intoxicating Liquors, § 227, note 56), and it is admitted by counsel for the village that the power to suppress or prohibit is not power to license or regulate. The contention is that power to suppress the business in the village is power to suppress it in a part of the village; that the power to prohibit entirely implies and includes the power to prohibit some — to partly prohibit.

This contention, although apparently plausible, cannot, in my judgment, be maintained. I am satisfied that the legislative intention is to give to villages the option to wholly interdict and prohibit the business within municipal boundaries. If they do not act at all, the business may be carried on in the village under the regulations and the restraints imposed by general laws. There is not an option to both permit and suppress. The village is a legal entity, and the influence of its ordinances is confined to its physical boundaries. Anything less than entire suppression, within these boundaries, is not suppression, is not prohibition of the saloon, but is, in fact, mere regulation and restraint. Significance is to be given to the fact that as to certain subjects the power is given to regulate or prohibit, as to others the power to regulate only, and as to saloons the power to suppress. This specific enumeration of powers is indicative of an intention to differentiate, and to withhold the power not enumerated. State v. Fay, 44 N. J. Law, 476.

It seems to me that counsel for the village impliedly admi these propositions when they concede that the reasonablenes ot the ordinance is for judicial determination. The reasonableness of an ordinance of this village which prohibited all saloons would- not be debatable. If the power to prohibit saloons in the whole village may- be exercised by prohibiting them in a part of the village, I can conceive of no legal bounds to its exercise. They may be suppressed in every place, except a single building or a vacant lot, and may be permitted to exist in every place, except in a single locality. If a city possessing no express power to suppress saloons, but having express power to fix a saloon district, does fix such a district, the reasonableness of the ordinance is open to judicial inquiry. The reason for fixing such a district, in any municipality, is a single one. The result of fixing the district is, in all cases, suppression of the trafñc in other districts. And partial suppression of saloons, within the meaning of the term which counsel for the village assert to be the statute meaning, may be accomplished in many ways besides the one of fixing a saloon district.

An ordinance imposing a large license fee would probably result in suppressing all saloons in this village. No one will contend that such an ordinance could be sustained as an exercise of the power to suppress saloons.

If it were matter merely of grave doubt whether the power to pass this ordinance exists, the application of the rule that the doubt should be resolved against the existence of the power (McQuillin on Municipal Ordinances, § 48, and note) would operate to avoid the ordinance.

The court below reached a right result, and the order of that court is affirmed.

McAlvay, O. J., and Carpenter, Hooker, and Moore, JJ., concurred.


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    HOLMES v. SMITH.
    1. Appeal and Error — Review—Questions Considered — Record — Matters not Presented Below.
    Matters not contained in the bill of exceptions, and matters not presented in the court below, will not be considered by this court on error.
    2. Estoppel — Title to Property — Failure to Assert — Question por Jury.
    Where plaintiff in trover contends that she asserted her title to the property in suit when the chattel mortgage upon which it was seized was given by her husband and refused to execute it; that she again asserted her title when the officer attempted to take the property under the mortgage, and did not allow him to take it until it was replevied, the question whether she is estopped to claim the property by her silence is for the jury under proper instructions, her testimony being contradicted.
    3. Election op Remedies — Assumpsit — Waiver op Tort — Premature Action.
    The bringing of an action of assumpsit, waiving tort, under section 10421, 3 Comp. Laws, after plaintiff’s property has been seized on a writ of replevin, is not an election of remedy barring a subsequent action of trover for the same property,where, at the time of bringing the action of assumpsit, the defendant had not sold the property and therefore had not converted it.
    Error to Kent; Perkins, J.
    Submitted June 19, 1907.
    (Docket No. 20.)
    Decided July 15, 1907.
    Trover by Ellen Holmes against Emma Smith. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Thompson & Temple, for appellant. -

      Holmes & Holmes, for appellee.
   Moore, J.

This is an action in trover brought for the value of live stock and other personal property which plaintiff claims she owned, and alleges defendant improperly converted. The case was tried before a jury, which rendered a verdict in favor of the plaintiff. The case is brought here by writ of error.

Counsel for appellant argue several matters which’ are not contained in the bill of exceptions. They also argue for some propositions not presented in the court below. As to these arguments, they will not be considered upon this record. We have examined the assignments of error in relation to the admissions of testimony, and find no reversible error therein.

The plaintiff in this suit is'a married woman who, in November, 1904, lived with her husband on a rented farm. The husband was in debt for rent. A chattel mortgage was drawn, the beginning of which reads as follows:

“ Know all men by these presents, that George Holmes and Ellen Holmes, his wife, of the township of Walker, Kent county, Mich., of the first part, being justly indebted unto Emma Smith, of Saratoga Springs, N. Y., of the second part, in the sum of two hundred thirty-seven dollars, have, for the purpose of securing payment of said debt,” etc.

The mortgage was in the usual form and described live stock and other property. It was not drawn in the presence of Mrs. Holmes. After Mr. Holmes signed it, the mortgage was taken to Mrs. Holmes for her signature. She declined to sign it, and stated to the agent of the mortgagee that She was the sole owner of some of the property, and joint owner of other of the property described therein. Later, the mortgage was given for foreclosure to an officer who made a demand for the property. His demand was refused. There is a conflict in the testimony as to what occurred. The officer says Mrs. Holmes made claim only to the road wagon. She contends that she made claim to the property generally. The officer not succeeding in getting the property upon his demand, it was obtained by suing out a writ of replevin, and later was sold upon the chattel mortgage. After the property was taken from the possession of Mr. and Mrs. Holmes, Mrs. Holmes .sued Mrs. Smith in assumpsit. After the testimony was all in, but before the case had been submitted, the plaintiff discontinued this suit. Later she brought this action.

Two important questions are involved in the case. The first one is whether plaintiff is estopped because she failed to speak and assert title to the property when she ought to have spoken. Counsel for appellant say she made no claim to the officer of any interest in any of the property, except the road wagon, and the case is directly within Zuehlke v. Stone, 148 Mich. 478. We cannot agree with the counsel in this contention. Plaintiff contends she asserted title to the property when the chattel mortgage was given; that she again asserted it when the officer attempted to get the property upon the chattel mortgage, and did not allow him to take it until it was replevined. As before stated, the testimony was contradictory as to what occurred. This raised a question of fact .for the jury, under proper instructions, as to the law of estoppel, which were given at length and correctly by the trial judge.

This brings us to the next important question, which is whether, by bringing assumpsit, which suit was discontinued without judgment, plaintiff made an election which would prevent her from afterwards bringing trover. Counsel say:

The plaintiff had an action in tort or assumpsit. She waived her tort and brought assumpsit, and, having so elected, cannot, at this time, maintain this action of tort, when she had so elected to sue in assumpsit” — and cite many cases.

The officer took the property from the Holmes December 21, 1905. Mrs. Holmes commenced her suit in assumpsit on the same day. The property was sold December 28, 1905. The assumpsit case was brought under the provisions of section 10431, 3 Comp. Laws. It was the claim of counsel that the action had been prematurely brought, as there had not been any sale of the property, and that assumpsit could not be maintained under the statute. The case was dismissed, and, as before stated, this proceeding was commenced. At the time of the first suit, the property was in the hands of the officer. The defendant in this case was not then guilty of a tort which might be waived. Justice Hookeb, speaking for the court, in McLaughlin v. Austin, 104 Mich. 491, after stating the general rule of the election of remedies, said:

“This rule is not inconsistent with the practice of bringing a second and different action, where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions upon which recovery could not be had.”

This case is cited with approval in Chaddock v. Tabor, 115 Mich. 33; Bryant v. Kenyon, 133 Mich. 151; Shanahan v. Coburn, 128 Mich. 692; First Nat. Bank of Reed City v. Sweet, 136 Mich. 615; Wilson v. Knapp, 143 Mich. 67.

Chief Justice Montgomeby, in Bryant v. Kenyon, 123 Mich. 154, used the following language:

“The important question is the one determined by the circuit court, i. e.: Did the plaintiff, by bringing the action of assumpsit, waive the tort, and elect to treat the title of all of this wood as having passed to defendant ? It is to be noted that, as to the wood then unsold and in defendant’s hands, no tort had been committed for the defendant to waive. It is clear, therefore, that the action of assumpsit could not have waived such a tort.”

The court further says in the same case:

“ The election to waive such torts as had been committed was not an election to waive any tort which the defendant might commit in the future. Was the ineffectual attempt to recover in- assumpsit a sum not due a waiver of a future tort ? We think not.”

See, also, Kinney v. Kiernan, 49 N. Y. 164; In re Van Norman, 41 Minn. 494; Redhead v. Investment Co., 136 Iowa, 410.

The case was tried with a good deal of care by the circuit judge, and was submitted to the jury in ah excellent charge.

Judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


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    MESSMORE v. MAERZ.
    Mortgages — Discharge—Mistake—Innocent Purchaser — Right to Foreclose.
    After complainant had discharged a mortgage on certain land by reason of a misunderstanding of the direction of a subsequent grantee of the land, the land was conveyed to defendant by a clear warranty deed, defendant giving a purchase money'mortgage. Defendant and his grantor after-wards procured through complainant on a new mortgage money to pay the purchase money mortgage, complainant at the time procuring an abstract and assuring them that the title was clear. Held, that complainant was not entitled to foreclose the mortgage discharged through mistake, defendant never having assumed it or known of it.
    Appeal from Sanilac; Beach, J.
    Submitted June 19, 1907.
    (Docket No. 115.)
    Decided July 15, 1907.
    Bill by Charles L. Messmore against John Maerz and others to correct a description in a mortgage, and to foreclose the same. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      TV. H. Burgess, for complainant.

      F. 8. Viets, for defendants Maerz.
   Moore, J.

The bill is filed in this case to correct the description in a mortgage and to foreclose the same. The case was heard in open court. The circuit judge dismissed the bill. The case is brought here by appeal.

The mortgage in controversy was given by John Callaghan December 2, 1889, to the complainant, to secure the payment of a note for $150 and interest thereon, due October 1,1890, upon the southwest quarter of section 30, in township 14 north, range 16 east, and was, duly recorded. In March, 1890, this and other mortgages were assigned as collateral security to the People’s Savings Bank of Detroit. March 26, 1890, John Callaghan conveyed said land, by warranty deed, to Henry Varty., for a consideration stated in the deed of $2,900, which deed contains the following recital:

“ Subject to a mortgage of eight hundred dollars held by Wm. Varty and a mortgage of one hundred and sixty dollars held by Charles Messmore.”

This deed was recorded March 28, 1890. April 3, 1891, Henry Varty and wife conveyed the south half of above-described land back to John Callaghan, by warranty deed, containing the recital: “except a mortgage of $700.” This deed was recorded August 1, 1891. December 19, 1891, Henry Varty and wife conveyed the north half of above-described quarter section of" land to defendant John Maerz by clear warranty deed. Maerz gave Varty a mortgage for $500 on 40 acres of this land, and sold the other 40 in February, 1892. In September, 1895, Maerz, for the purpose of paying the mortgage he had given to Varty, procured a loan through complainant of Miss Dickinson, which loan was secured by a mortgage. At this time an abstract of title was obtained by Messmore, for. Maerz, and Messmore assured Yarty and Maerz that the title was all righit. In 1893 Mr. Messmore received a paper reading as follows:

“August 3, 1893.

“Mr. Messmore: Please discharge the mortgage and charge it to me.

“ Henry Yarty.”

He says he supposed this referred to the real estate mortgage, and that he procured a discharge thereof from the Detroit Bank, and charged the amount of the mortgage to Yarty, and that he had no knowledge that the mortgage was not properly discharged at the time the Miss Dickinson mortgage was given by Maerz. He also claims that Yarty afterwards denied that the paper referred to the real estate mortgage, and that there was litigation as the result thereof, which culminated in Varty v. Messmore, 132 Mich. 314. It is his further claim that he has never been paid for said mortgage, and, though it has been discharged of record, that it should be reinstated. He further claims that a mistake was made in drawing the mortgage originally by inserting the wrong range, which mistake he seeks to have corrected in this proceeding. It is the claim of the solicitor for complainant that defendant Maerz should be held because, and we quote from the brief:

“Maerz took title of his land from Henry Yarty December 19, 1891, by clear warranty deed. Yarty had received title from John Callaghan March 26, 1890, by warranty deed, subject to a mortgage to Charles L. Messmore of $160, which deed was recorded March 28, 1890. The mortgage mentioned in this deed to Yarty is the one complainant now seeks to foreclose. In this deed to Yarty, Callaghan inserted a recital of the mortgages against the land,'naming the mortgagees, one of whom was complainant.”

We have already recited enough from the record to show that in the deed to Maerz there was no reference made to the Messmore mortgage, and that the grantor of Maerz gave him a clear warranty deed, and that a purchase price mortgage was given back by him to Yarty for $500. Later Yarty and Maerz, for the purpose of getting money to pay off this purchase price mortgage, went to Messmore, who insisted upon an abstract of title being furnished'. It was furnished, and Messmore declared the title to be good, and Maerz, through Messmore, procured the money to pay off his purchase price mortgage, and lost any opportunity to say to his grantor that his title was defective and must be made good. It does not appear that Maerz ever knew of the existence of the Mess-more mortgage. Messmore, of course, knew it. He had procured its discharge. It was discharged of record when he procured the abstract for Maerz. We think there is no equity in saying that Mr. Maerz, who had no actual knowledge of complainant’s mortgage, and who had never assumed it, should be required to pay it because complainant, through mistake, caused it to be discharged of record. We have no brief on the part of the defendants.

The decree is affirmed, with costs.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


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    TINKER v. PIPER.
    1. Quieting Title — Propriety of Remedy — 'Unoccupied Land-Defendant in Possession — Ejectment.
    On a bill to quiet title, filed under section 448, 1 Comp. Lawsi evidence examined, and held, to clearly show that defendantJ was not out of possession of the land in controversy, and that to settle the rights of the parties ejectment should have been brought.
    2. Appeal and Error — Chancery Appeals — Settlement of Case — Time—Statute—Court Rules — Construction.
    Act No. 129, Pub. Acts 1905, does not limit the time for settling a chancery case for appeal to the time limited by Circuit Court Rule No. 47. Nolan v. Garrison, ante, 56, followed.
    Appeal from Lapeer; Smith, J.
    Submitted June 20, 1907.
    (Docket No. 82.)
    Decided July 15, 1907.
    Bill by Effie M. Tinker against Peter N. Piper to quiet title to land. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      W. E. Brown, for complainant.

      Btickney & Reed, for defendant.
   Moore, J.

This case is an appeal from the circuit court for the county of Lapeei, in chancery. The bill was filed to quiet title to the west half of the southeast quarter of section 14, township of Elba, Lapeer county, Mich. The defendant answered and claimed title under a tax deed and by adverse possession for more than the statutory period. The proofs were taken in open court, and a ■decree entered in favor of complainant, as prayed for. in her bill.

The defendant alleges as error that a bill to quiet title will not lie against a party in possession claiming ownership; ejectment being the only proper remedy in such a case. Counsel for appellant state this is the only error for which the appellant asks to have the decree reversed. The complainant claims the right to maintain this action by virtue of section 448, 1 Comp. Laws, which reads in part as follows:

“Any person .claiming the legal or equitable title to lands, whether in possession or not, may institute a suit in chancery against any other person, not in possession, setting up a claim thereto in opposition to the title claimed by the complainant,” etc.

It will be observed an important question is whether defendant was not in possession within the meaning of the statute. The circuit judge filed a written opinion, the opening part of which reads as follows:

“ There is some reason for saying that the bill should have been dismissed, as was done in Seymour v. Rood, 121 Mich. 173, because defendant, Piper, considers himself in possession of a portion at least of the premises in controversy; but the bill is here, and the money value involved is not large, so it is thought better to dispose of the case on its merits.”

Later in the opinion, he uses the following language:

“ There is no question but that since March, 1889, Piper has had a species of possession of the one acre of land, for much, if not all, of the time. He set out hitching posts for the use of the public who came to the lake. He led his horses to water across it at one point. He landed and tied his row boats along the shore. There being no fence between his own land and this one acre his cattle pastured upon it many times. He once built a calf pen upon it, also a temporary shed for use until his barn was completed; but he never asserted ownership to, nor assumed possession of, the 79 acres in the lake, except to use the surface of the water in common with the public. The one acre was also open to public use, and was used by the public. The several owners of the original title have also since March 29, 1890, had a species of possession. They built- and used a boathouse upon it.' They also landed and tied their boats to the shore. They drove over it. Gates cut a large tree from it, and rented it for a tent show. Thompson made some use of it. It was assessed to them, and they paid the taxes until the last five or six years. There was so much contention between Piper and Gates about the ownership and possession that the supervisor finally avoided taking part in it by assessing it as ‘owner unknown,’ because both Piper and Gates were his neighbors. He never assessed it to Piper until Thompson, a nonresident of his town, acquired the title of Gates.”

The land in controversy is mostly lake. It adjoins land which has been undisputably owned by defendant for years.. There is one acre of. land which is not submerged. The only way it is reached by the public is through a long lane leading from the highway, over land owned by defendant and used by him as a farm, to land surrounding a summer hotel and used in connection therewith, which summer hotel is owned by the defendant.

It was the claim of defendant upon the trial that he had a tax title, and has acquired the land by adverse user, and he gave some testimony tending to prove his claim. The testimony is undisputed that at the time the suit was commenced defendant’s cattle pastured upon the acre in question; that he had thereon many hitching posts, some of which had been there for years, which were used by guests of the hotel and patrons of defendant’s boats to hitch their horses. That defendant led his horses daily across the land to water; that guests of the hotel passed over the land daily during the swimming season to reach the swimming hole. It was the claim of defendant that he had the right, as owner of the land, to do the things he did and which he permitted his guests to do. It is true there is a contest as to the extent of the use made by the respective parties; but we think it very clear that defendant was not out of possession of the land in controversy, and that to settle the rights of the parties ejectment should have been brought. The case is within Seymour v. Rood, 121 Mich. 173; Chandler v. Graham, 123 Mich. 327; Crosby v. Hutchinson, 126 Mich. 56.

One other question remains. The solicitor claims the case is not properly here,—

“Because no steps were taken to perfect such appeal within the time allowed by Circuit Court Rule 47 and said Act' No. 129, Pub. Acts 1905,-and not until on or about the 10th day of October, A- H- 1906, did defendants give notice of a settlement of the case to be presented to the court on October 20th; * * * because the court had no jurisdiction to enter an order on August 20th extending the time to settle the case, and the court had lost jurisdiction to extend the time at said date.”

Act No. 129, Pub. Acts 1905, has been construed against the contention of the solicitor for complainant in the recent case of Nolan v. Garrison, ante, 56.

The decree is reversed, and one may be entered here dismissing the bill, with costs of both courts.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.}