author: Brooke, J.

text:
    PARSONS v. KIMMEL.
    1. Exemptions — Personal Property — Cows—Chattel Mortgages —Sales.
    Under 3 Comp. Laws 1915, § 12858, exempting to each householder two cows, and providing that “any chattel mortgage, bill of sale, or other lien created * * * shall be void, unless such mortgage, bill of sale, or lien shall be signed by the wife,” etc., the right of the husband to make an- absolute sale of such property is not interfered with; h'is right to convey as security only being removed.
    2. Replevin — Personal Property — Joint Ownership — Husband and Wipe — Sale Without Wife’s Consent.
    Where the title to a cow was jointly in the husband and wife, the husband could not sell the wife’s interest without her consent, and therefore replevin would not lie at the instance of the purchaser by bill of sale not signed by the wife, in the absence of evidence of her oral consent to the sale.
    3. Exemptions — Heifer—Cow—Question of Law.
    Where a heifer 14 months old had been bred at the time of the sale, and was the only cow owned by defendant, the court below should have instructed the jury that, as a matter of law, she was a cow within the meaning of the exemption statute.
    Error to Eaton; Smith, J.
    Submitted June 10, 1919.
    (Docket No. 79.)
    Decided July 17, 1919.
    Replevin by Romeyn C. Parsons against Bert Kimmel for the possession of a cow. Judgment for plaintiff. Defendant brings error.
    Reversed.

      G. D. Blaster (Lyman H. McCall, of counsel), for appellant.

      B. G. Cameron (Peters & Marshall, of counsel), for appellee.
   Brooke, J.

On June 11, 1915, plaintiff sold to defendant an automobile for $150, taking in part payment thereof a heifer or cow at an agreed price of $75. At the time of the transaction defendant executed to plaintiff a bill of sale for the animal in question. On the next day, plaintiff resold the cow to defendant on a title-retaining contract. Defendant neglected or refused to pay for the cow according to thé terms of the contract, whereupon plaintiff repossessed himself of the animal under a writ of replevin issued November 8, 1917. The animal in question had been given to defendant and his wife jointly by defendant’s father at the time of its birth. At the time it was sold by defendant to plaintiff it was about 14 months old and had been bred. It was delivered of a calf in January, 1916, about seven months after the sale. It was the only cow owned by defendant at the time the sale was made. The bill of sale conveying title to the cow was not signed by the wife. Upon the trial the court instructed the jury to determine from the evidence whether at the time the animal was taken on the writ of replevin she was a cow within the meaning of the exemption statute. Construing that statute he charged the jury:

“Now this law I have just practically read to you refers to such conveyances or conditional sales as are intended as security and not to absolute sales, in other words, it is the court’s opinion that a man has a right to make an absolute sale of this property under the exemption laws. He cannot mortgage it, he cannot give any paper that would be a security for a debt without his wife signs it, but he does have the right to make an absolute sale of the property; that is my version of the law.”

Under this charge the jury returned a verdict in favor of the plaintiff. The exemption statute, 3 Comp. Laws 1915, § 12858, subd. 6, provides: “To each householder, * * * two cows,” among other things shall be exempt. Subdivision 9:

“And any chattel mortgage, bill of sale, or other lien created on any part of the property above described, except such as is named in the eighth subdivision of this section, shall be void, unless such mortgage, bill of sale or lien shall be signéd by the wife,” etc.

Plaintiff’s counsel rely upon the cases of Holman v. Gillette, 24 Mich. 414, and Singer Manfg. Co. v. Cullaton, 90 Mich. 639, after reviewing which they say:

“We believe that the principle enunciated in this case recognizes the principle contended for by plaintiff and appellee, viz.: that the common-law right of the husband to sell or incumber his property still exists except as it has been restricted by statute, and that the statute in question relied upon by defendant and appellant has removed the husband’s right to convey this class of exempt property as security, but has not in any way impaired his right to make an absolute sale.”

Referring to the first of said cases, Chief Justice Christiancy, in construing the section under consideration, said:

“Now we think it quite evident that this provision refers only to such conveyances, pledges or conditional sales, as are intended as security, or which give a lien for that purpose, and not to absolute sales which are by-no statute required to be in writing; and that so far as this provision is concerned, it does not interfere with the right of the husband to make an absolute sale of such property, as he may of personal property not thus exempt, there being no statute requiring such sale to be in writing.”

The construction put upon the statute by the court below seems to be justified by an express decision of this court.

Defendant’s fifth request to charge was as follows:

“Fifth: I instruct you that as appears from the undisputed evidence in the case, the defendant Kimmel and his wife were joint owners of this heifer or cow, as cotenants, and that the defendant Kimmel could not sell his cotenant’s interest in the cow or heifer without her consent, and as appears from the evidence the wife did not give her consent to the sale by the husband, hence the sale as to her interest in the cow was void, and under the undisputed evidence in the case, in such case replevin will not lie for the undivided interest of the wife, hence your verdict must be for the defendant, 'not guilty,’ for the reason that replevin will not lie where it deprives the co-tenant, whose title is undisputed, to the right of possession.”

The testimony that the title to the animal was'jointly in the husband and wife through a gift from the father of the husband is undisputed on this record.

In Kindy v. Green, 32 Mich. 310, it was held that:

“Replevin will not lie for an undivided interest in a chattel where the execution of the writ will operate to deprive a cotenant whose title is undisputed to his right of possession.”

Plaintiff did not attempt to deny the wife’s joint ownership of the chattel in question nor did he show her oral assent to the sale which he might have done under the authority of Holman v. Gillette, supra. In any event the question of such ownership if disputed by plaintiff was one for the determination of a jury under proper instructions. We find no reference to this question in the charge. As the record stood at the close of the testimony,, we are of opinion that the defendant was entitled to have his fifth request given as preferred.

The court should have instructed the jury as a matter of law that the animal in question was a cow within the meaning of the exemption statute. See 12 Am. & Eng. Enc. Law (2d Ed.), p. 127, and cases cited.

For the errors pointed out the judgment is reversed and a new trial granted, with costs to appellant.

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


source: Caselaw Access Project

license: Public Domain

text:
    DUELL v. OAKLAND CIRCUIT JUDGE.
    Dismissal — Mandamus — Reinstatement oe Case Erroneously Dismissed — Correcting Clerk’s Error.
    "Where a plea to a case was by the county clerk or his deputy erroneously filed in another case, and the circuit judge dismissed said case under 3 Comp. Laws 1915, § 12574, for want of prosecution, under the erroneous impression that no plea had been filed, mandamus will issue to compel the reinstatement of said case, since it was within the power of the judge to correct the inadvertence of the clerk, and, in the exercise of a sound legal discretion, he should have done so.
    Mandamus by Ray L. Duell to compel Frank L. Covert, circuit judge of Oakland county, to set aside an order dismissing an action at law.
    Submitted June 10, 1919.
    (Calendar No. 28,813.)
    Writ granted July 17, 1919.

      William C. Gottman, for plaintiff.
    This is an application for a mandamus to require the circuit judge to set aside an order dismissing a case under the provisions of section 12574, 3 Comp. Laws 1915, which provides in part:
    “On the first day of each term, any cause appearing under this heading shall be dismissed by the court for want of prosecution, but without prejudice, at the cost of the party by whom it was brought into court, unless cause be then and there shown to the contrary.”
    It appears without dispute upon this record that plaintiff brought suit against one William Jackson in the circuit court for the county of Oakland on October 2, 1916; the ad damnum in the declaration, being $10,000. On October 17, 1916, defendant, Jackson, by Pelton & McGee, his attorneys, filed and served a plea of the general issue. Through some inadvertence the county clerk or his deputy failed to file the plea in the proper, case. Because of this oversight said case was not placed on the docket during any of the terms of the year 1917. It was placed on the docket for the January term, 1918, under the heading:
    “Causes in which no progress has been made for more than one year,”
    —and on the first day of that term was summarily dismissed for want of prosecution, under the provisions of section 12574, 3 Comp. Laws 1915, supra. As soon as plaintiff’s attorney learned of the dismissal he made a motion to have it reinstated, showing by his own affidavit and that of the plaintiff that he had at all times been ready and willing to proceed with the trial thereof, but had never received any docket or notice that the court was ready to call the case. This motion came on to be heard by the circuit judge on April 21, 1919, and was denied by the court in the following terms:
    “No plea has ever been filed and therefore the defendant has been in défault since about November 1, 1916. It does not appear, however, that the plaintiff has ever entered the default of the defendant or taken any steps to bring the case on for hearing and therefore is in no position to complain of the action of the court in striking the case from the docket.
    “Motion is therefore denied.”
    As soon as this opinion reached plaintiff’s attorney, he wrote to the circuit judge calling his attention to the fact that a plea (contrary to the judge’s opinion) had been filed and served on October 17, 1916. To this communication the circuit judge replied:
    “I have looked this matter up and find that there were two cases, one begun by Davis & Bromley, of this city, which was afterwards dismissed, and the other begun by yourself. I also find that there was a plea filed in the later case, but through error of a deputy clerk the plea was filed in the former case and therefore the record showed no plea in your case. _
    _ “This fact, however, would not change the decision for the reason as therein stated that the statute relative to dismissal of cases is mandatory and I am unable to find any statute authorizing the court to reinstate cases after dismissal,”
    —and declined to reinstate the case.
   Brooke, J.

(after stating the facts). We are of opinion that the learned circuit judge was clearly in error in declining to reinstate the case upon learning that through an error the clerk or his deputy had failed to file the plea properly. It is asserted by counsel for plaintiff that the statute of limitations prevents the starting of a new suit and therefore that if this decision is allowed to stand he will be denied a trial of his action upon the. merits. It was within the power of the learned circuit judge to correct the wrong done through the inadvertence of the clerk, and, in the exercise of a sound legal discretion, he should have done so.

The mandamus will issue as prayed.

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


author: BROOKE, J.

text:
    NEWMAN v. ADELSPERGER.
    Brokers — Commissions—Promissory Notes — Failure oe Consideration.
    Where plaintiff had procured a loan as a first mortgage on a building he was planning to erect, but estimated he would require an additional loan, and defendants as brokers procured the execution of a contract between plaintiff and third parties whereby said additional sum was to be placed in escrow to be available “according to the terms and conditions of a certain contract executed by and between” said first and second mortgagees, but said last-mentioned contract was in fact never executed because of disagreement between said first’ and second mortgagees, and said second loan was never consummated, held, that promissory notes executed by plaintiffs to defendants as commission for procuring said second loan were void for failure of consideration.
    Appeal from Wayne; Dingeman, J.
    Submitted June 11, 1919.
    (Docket No. 20.)
    Decided July 17, 1919.
    Rehearing denied December 23, 1919.
    Bill by Jacob Newman against H. E. Adelsperger and another for the cancellation of certain notes, and to enjoin an action at law. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      A. Joseph Seltzer, for plaintiff.

      Race, Haas & Allen, for defendants.
    Plaintiff being the owner of a lot on High street in the city of Detroit on which he desired to erect a large apartment building had made arrangements to negotiate a first mortgage upon the land and the building to be erected in the sum of $55,000 with S. W. Straus & Co. It seems to have been estimated that an additional $20,000 would be required to complete the building according to the plans and specifications. Plaintiff thereupon applied to defendant Adelsperger to secure for him $20,000 upon a second mortgage. Adelsperger advised plaintiff that the sum required could probably be secured if the title to the property was placed in the party making the loan and the rents thereof collected and applied by said party. To these conditions plaintiff agreed and thereupon Adelsperger and his codefendant, Waidlich, applied to Walter- T. Bradford and Fred S. Riley for the loan. Bradford and Riley agreed to advance the money, but demanded $5,000 as a fee or bonus on the loan. This sum was subsequently increased to $6,000, the additional $1,000 being paid by plaintiff in lieu of a bond guaranteeing the completion of the building. It was further agreed between plaintiff and defendants that defendants should receive $2,500 for their services in securing the loan. Negotiations having ended satisfactorily two agreements were entered into on the 19th day of September, 1916, the first between plaintiff and Bradford and Riley in the following terms:

      “An Agreement, entered into this nineteenth day of September, 1916, by and between Walter T. Bradford and Fred S. Riley, of the city of Detroit, Wayne county, Michigan, parties of the first part, and Jacob Newman, of the same place, party of the second part, Witnesseth:

      “Whereas, the said parties of the first part have explicit confidence in the good faith and ability of the second party and no one else, to carry out this contract ; and

      “Whereas, the said parties of the first part are desirous of entering into this contract,

      “Now therefore, in consideration of the sum of one ($1.00) dollar, the receipt wherfeof is hereby confessed and acknowledged, and of the mutual undertakings and premises hereinafter obtained, it is agreed between the parties hereto, as follows:

      “1. The parties of the first, part hereby agree to loan and advance to the party of the second part the sum of twenty thousand ($20,000.00) dollars, said sum to be used for the sole and only purpose of the construction of a forty-two suite apartment building on the west forty-five (45) feet of lot two (2), in block one (1), Brush subdivision, of Brush farm, city of Detroit, said lot lying on the north side of High street, and between John R. and Brush streets; the said apartment building to be constructed according to plans and specifications now filed with, and accepted by S. W. Straus & Co.
    “2. The conditions precedent to be performed by the said party of the second part, before the said sum of- twenty thousand ($20,000.00) dollars, or any part thereof is to be advanced by the said parties of the first part, are as follows:
    “(a.) The said party of the second part agrees to secure a first mortgage upon the above described premises from S. W. Straus & Co., said mortgage loan to be in the principal sum of fifty-five thousand ($55,-000.00) dollars, to bear interest at the rate of six per cent. (6%), payable semi-annually; and upon which mortgage the said S. W. Straus & Co., purposes to issue bonds, and the said party of the second part agrees and covenants that the first maturing bonds of which will not exceed the principal sum.of thirty-five hundred ($3,500.00) dollars, and further covenants that they will become due in not less than two (2) years from the date of the .said first mortgage, and the other bonds shall become due in the following amounts, and at the following times, to wit:
    “Thirty-five hundred ($3,500.00) dollars three years after date.
    “Four thousand ($4,000.00) dollars four years after date.
    “Four thousand ($4,000.00) dollars five years after date.
    “Four thousand ($4,000.00) dollars six years after date.
    “Thirty-six thousand ($36,000.00) dollars seven years after date.
    “(b) The said sum of fifty-five thousand ($55,-000.00) dollars shall, all except an amount of not more than four thousand ($4,000.00) dollars (the said sum of $4,000.00 being the commission of S. W. Straus & Company for making said loan), be expended in the payment of liens and incumbrances now on the said lot, and for the construction of the said building (before the said parties of the first part shall be required to advance any part of the said twenty thousand ($20,000.00) dollars; and the said parties of the first part shall not advance any of the said sum of $20,000 until the said building is fully completed and ready for occupancy) and all bills, are paid (including the accrued interest on the said mortgage to S. W. Straus & Co., from the date of its execution until the said building is ready for occupancy) — with the exception of twenty thousand ($20,000.00) dollars. It is agreed that this will be evidenced by an affidavit of the said party of the second part, and by such other evidences as the said parties of the first part .may require.
    “If, however, the said parties of the first part are satisfied that the remaining cost of the building will be within the $20,000.00-limit herein stated, they hereby agree to authorize the escrow holder of the said $20,000.00, hereinafter mentioned, to pay out of the said $20,000.00 such sums as may be necessary for the construction of the building; provided, however, that the said parties are satisfied- that the remaining cost of the building will at all times be within the balance remaining in the hands,' of the escrow holder.

      “It is further agreed by and between the parties hereto that contemporaneously with the execution of the said mortgage upon the said premises to said S. W. Straus & Co., the said parties of the first part shall place said sum of twenty thousand ($20,000.00) dollars in escrow, with the Peoples State Bank, of ■Detroit, Michigan, according to the terms and conditions of a certain contract executed by and between the. said parties of the first part, and/ S. W. Straus & Co., and, when such money is placed m escrow, the said party of the second part agrees to immediately execute and deliver to the said parties of the first part, as tenants in common, a good and sufficient warranty deed, with full covenants, etc., of the above described property, free and clear of all encumbrances or liens whatsoever, except the said mortgage of fifty-five thousand ($55,000.00) dollars to S. W. Straus & Co., or the trustee of said mortgage.

      “It is further agreed- by and between the parties hereto that when the title to the said premises passes to the said parties of the first part, as aforesaid, the said parties of the first part may and shall take full and complete charge of said property, and the said Walter T. Bradford shall collect all rentals therefrom, and shall pay all taxes, repairs, insurance, and other expenses of operating the said building therefrom, and shall receive' as his compensation for his said service, a monthly commission of six per cent. (6%) of all the gross rentals so collected.

      “It is agreed by the said parties hereto that all the rentals collected from the said property shall be applied first to commissions, then to insurance, taxes, and all other expenses incidental to the operation of the said property, then to the payment of interest and principál of the first mortgage hereinbefore mentioned, as the same shall become due, and the residue shall be applied monthly by the said Walter T. Bradford on the amount owing to the said parties of the first part by said second party, as more fully, appears in the next paragraph hereof.

      “It is further agreed by and between the parties hereto, that when the said party of the second part shall pay, or cause to be paid from the rentals as aforesaid, or otherwise, to the said parties of the first part, the sum of twenty thousand _($20,000) dollars and interest thereon at the rate of six per cent (6%) from the date hereof, payable monthly (the balance to be applied on principal by the said Walter T. Bradford) and that when, in addition, and subsequently thereto, the said party of the second part shall pay, or cause to be paid, from the rentals as aforesaid, or otherwise, to one*H. E. Adelsperger, the sum of eighty-five hundred ($8,500.00) dollars, in payment of certain notes now held by the said H. E. Adelsperger, that then the said parties of the first part, their heirs or assigns, will reconvey the said premises to the said party of the second part by quitclaim deed, and that at such time the said Walter T. Bradford'shall cease making the rental collections as aforesaid.
    “The said notes now held by the said H. E. Adelsperger aggregate, as aforesaid, eighty-five hundred ($8,500.00) dollars, and are more certainly described as follows, to wit: '
    “Note ‘A’ dated the same date as this instrument for six thousand ($6,000.00) dollars, payable in two years from the date hereof;
    “Two notes each marked ‘B’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before four (4) months after date thereof;
    “Two notes each marked ‘C’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before seven (7) months after date thereof.
    “Two notes each marked ‘D’ of even date herewith, one for two hundred ($200.00) dollars, and one for three hundred ($300.00) dollars, payable on or before thirteen (13) months after date thereof.
    “Two notes each marked ‘E’ of even date herewith, one for two hundred ($200.00) dollars, and one for three hundred ($300.00) dollars payable on or before nineteen (19) months after date thereof.
    “T\ri) notes each marked ‘F’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before twenty-five (25) months after date thereof.
    “Each of said notes marked A, B, C, D, E, F, shall bear interest after maturity at the rate of six (6) per cent, per annum, payable semi-annually.

      “It is further agreed, by and between the parties hereto that the said apartment building shall be constructed and erected and ready for occupancy on or before the first day of May, next, and it is further agreed that time is hereby made, and is of the essence of this contract. If, however, the said parties of the first part should waive one or more breach of time specified in this .contract, such- waiver shall not be construed to apply to any subsequent breaches thereof.
    “And all of the said parties hereto hereby mutually agree that this said contract is not to be placed of record.

      “In witness whereof, the parties to this agreement have hereunto set their hands and seals the day and year first above written.
    “Signed, sealed and delivered in presence of:
    “Wilson W. Mills.
    “Walter T. Bradford L. S.
    “Fred S. Riley L. S.
    “Jacob I. Newman L. S.”
    The second between plaintiff and defendant as follows:

      “An Agreement, entered into this 19th day of September, A. D. 1916, by and between H. E. Adelsperger, of the city of Detroit, county of Wayne and State of Michigan, party of the first part, and Jacob Newman, of the same place, party of the second part, Witnesseth:

      “Whereas, the said party of the first part has spent a great deal of time and effort in attempting and in securing a certain loan from one Walter T. Bradford and one Fred S. Riley, to the said party of the second part; and

      “Whereas, the said party of the second part had but slight security to offer any parties produced by the said party of the first part,

      “Now therefore, this agreement Witnesseth: That, whereas the said party of the first part has secured for the said party of the second part a loan of twenty thousand ($20,000.00) dollars, bearing six (6) per cent, interest only, from the said Walter T. Bradford and Fred S. Riley, — the said party of the second part does agree, when a contract is signed with the said Bradford and Riley for the payment of the said twenty thousand ($20,000.00) dollars, to execute eleven good and sufficient promissory notes, payable to the said party of the first part, or order, in the following forms and denominations, to wit:
    “Note ‘A’ in the principal sum of six thousand ($6,-000.00) dollars, dated the 19th day of September, 1916, and payable on or before two (2) years from its date;
    “Two notes each marked ‘B’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before four (4) months after date thereof.

      “Two notes each marked ‘C’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before seven (7) months after date thereof.
    “Two notes each marked T>’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before thirteen (13) months, after date thereof.
    “Two notes each marked ‘E’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before nineteen (19) months after date thereof.
    “Two notes each marked ‘F’ of even date herewith, one for two hundred ($200.00) dollars and one for three hundred ($300.00) dollars, payable on or before twenty-five (25) months after date thereof.
    “Each of said notes marked A, B, C. D, E, F, shall bear interest after maturity at the rate of six (6) per cent, per annum, payable semi-annually, in payment for his services of securing the said loan as aforesaid and for no other purpose.

      “In witness whereof, the parties to this agreement have hereunto set their hands and seals the date and year first above written.
    “Signed, sealed and delivered in presence of: “Wilson W. Mills,
    “Elvira E. McFawn.
    “H. E. Adelsperger L. S.
    “Jacob I. Newman L. S.”
    The agreement between plaintiff and Bradford and Riley provides:

      “It is further agreed by and between the parties hereto that contemporaneously with the execution of the said mortgage upon the said premises to said S. W. Straus & Co., the said parties of the first part shall place said sum of twenty thousand ($20,000.00) dollars in escrow with the Peoples State Bank, of Detroit, Michigan, according to the terms and conditions of a certain contract executed by and between the said parties of the first part, and S. W. Straus & Co.”

    While it appears that the mortgage to S. W. Straus fc Co. had been executed at the time these agreements were made, no agreement between Bradford and Riley and Straus & Co. had in fact been made although it was so recited in the contract. When Bradford and Riley attempted to agree with Straus & Co. upon the terms of the said contract they found they were unable to do so. The difference between the parties grew out of the possibility that it would cost more than the $55,000 supplied by Straus & Co. and the $20,000 supplied by Bradford and Riley to erect the building. Bradford and Riley insisted that Straus & Co. should pay any possible excess but to this condition Straus & Co. declined to assent, with the result that no contract between Straus- & Co. and Bradford and Riley was entered into and no deposit of the $20,-000 was made by Bradford and Riley. In the meantime the $8,500 in notes provided for by the agreement between plaintiff and defendants had been executed by plaintiff and delivered to defendants, who in turn had indorsed $6,000 in value thereof and turned them over to Bradford and Riley, retaining $2,500 thereof as their agreed commission for procuring the contract. Upon the failure of Bradford and Riley to agree with Straus & Co. the contract between them and plaintiff was by mutual consent canceled and the $6,000 worth of notes then in the hands of Bradford and Riley were returned to plaintiff. The notes aggregating $2,500 remaining in the hands of defendants were not so returned, it being claimed by defendants that when the contract between plaintiff and Bradford and Riley was executed and delivered they had performed the services for which they had been hired and had earned the agreed compensation. Plaintiff filed his bill praying for the cancellation and delivery of the $2,500 worth of notes and for an injunction restraining defendants from commencing any action at law thereon. Upon the hearing the foregoing facts were made to appear without material dispute. The learned circuit judge who heard the case filed a written opinion in which the following appears:
    “From the evidence presented I am satisfied that the defendant procured Bradford and Riley, who were ready, able and willing to make a loan on the terms required by the plaintiff, and that their failure to make the same was the result of no fault either upon the part of Bradford and Riley or the defendants in this case. It is my judgment that the defendants in this case earned their commission when the contract of September 19, 1916, was signed in which Bradford and Riley agreed to make the loan to the plaintiff upon the terms and conditions as then required. Under this view the-defendants would be entitled to their commission notwithstanding that subsequently the deal was not consummated because of new conditions imposed by the plaintiff or some one in his behalf,”
    —and entered a decree dismissing the bill.
   BROOKE, J.

(after stating the facts). It is the first contention of plaintiff, appellant, that a different conclusion should have been reached by the learned circuit judge because there has been a complete and total failure of consideration for plaintiff’s agreement to pay the commission or the notes evidencing that promise. A critical examination of the contract between the plaintiff and Bradford and Riley, viewed in the light of the testimony in the case, convinces us that defendants never secured for plaintiff a contract with Bradford and Riley by the terms of which they were definitely, and at all events, bound to loan to plaintiff the $20,000. The contract in evidence recites that Bradford and Riley shall place in escrow the $20,000—

“according to the terms and conditions of a certain contract executed by and between the said parties of the first part and S. W. Straus & Co.”

The testimony is clear and undisputed that no such contract between Bradford and Riley and Straus & Co. was executed at the time plaintiff entered into his ■contract with Bradford and Riléy. It is evident that it was in contemplation of the parties that such a contract would thereafter be entered into, but nowhere in the contract does plaintiff assume any responsibility with reference to such contract. He does not agree to secure the assent of Straus & Co. to such terms as Bradford and Riley might impose. Bradford and Riley were obligated by the terms of the contract to deposit the money for use only after the building had reached a point when $20,000 was sufficient for its completion. It is in evidence that Straus & Co. did not consent to the making of the deposit upon the terms contemplated in the contract between plaintiff and Bradford and Riley. It seems clear, therefore, that defendants never secured from Bradford and Riley a contract for the loan of $20,000 which the plaintiff could enforce, and, if this is true, defendants never earned the commission for which the $2,500 worth of notes were given them by plaintiff. It is urged on behalf of the plaintiff that the two contracts read together are tainted with usury and therefore unenforceable by any of the parties. The statute, section 5998, 2 Comp. Laws 1915, does not make such contracts unlawful and void or even voidable, but penalizes the lender by denying him the right to collect any interest upon his loan.

The conclusion we have reached, however, with reference to the first contention made by plaintiff renders it unnecessary to critically examine these contracts. We are of opinion that there was a total failure of consideration for the notes given and that the decree of the court below should be reversed and a decree entered in this court according to the prayer of the bill, with costs of both courts.

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


text:
    SWAN v. STEVENS’ ESTATE.
    1. Cancellation of Instruments — Deeds — Competency of Grantor.
    On a bill for the cancellation of a deed executed by a woman 83 years of age, the finding of the court below that the grantor was mentally competent to execute the same, held, supported by the. evidence.
    2. Same — Undue Influence — Evidence—Sufficiency.

      Held, that there was no evidence to support the charge of undue influence.
    3. Same — Deed as Mortgage — Consideration—Evidence — Sufficiency.
    Where the deed itself is absolute on its face, and the record contains ample evidence of a valid and adequate consideration, a court of equity will not decree said deed to be a mortgage.
    For parol evidence to show that deed absolute on its face was intended as a mortgage, see note in L. R. A. 1916B, 18.
    Appeal from Oakland; Lamb, J., presiding.
    Submitted June 3, 1919.
    (Docket No. 11.)
    Decided July 17, 1919.
    Bill by John E. Swan and others against the estate of Sara E. Stevens and another to set aside a deed. From a decree dismissing the bill, plaintiffs, appeal.
    Affirmed.

      J ohn B. Mcllwain (Elmer E. Stochwett, of counsel), for plaintiffs.

      John H. Patterson, for defendants.
   Brooke, J.

The bill in this case is filed to set aside a deed executed by Elizabeth Kemp to Sara E. Stevens, bearing date February 18, 1915, on three grounds:

(1) Mental incompetency.

(2) Undue influence.

(3) That the deed was a mortgage.

Property conveyed by the deed consisted of a small house and lot worth about $2,500. At the time the deed was executed Elizabeth Kemp was a widow about 83 years of age and had occupied the property in question as a homestead for many years. She received a pension from the government ranging from $8 per month 20 years ago to $20 per month during the last year of her life. She had one son, George Kemp, who lived with her. George Kemp died of tuberculosis February 1, 1915, having spent some months in Ashe-ville, North Carolina, in an attempt to be cured. Money for George’s trip to and sojourn in Asheville was furnished by Sara E. Stevens. Sara E. Stevens was an elderly spinster who was possessed of nearly $9,000 in cash, the avails of a 40-acre farm lying on Woodward avenue between Pontiac and Birmingham. After the sale of her farm Sara E. Stevens made her home with Elizabeth Kemp for about 10 years preceding her death in February, 1917. There was evidence in the record to the effect that during the time Sara E. Stevens lived with Elizabeth Kemp she expended for household purposes and in advances to George Kemp upwards of $3,000. The deed in question was a straight warranty deed with an expressed consideration of “One dollar and other valid and valuable considerations,” and containing the following clause:

“and it is understood that this conveyance is made in consideration of services rendered to first party by second party and also in compliance with the expressed wishes of George L. Kemp, now deceased, son of the said first party, and that this is all the consideration passing at the time of this transfer.”

After the death of George Kemp, and the execution of the deed in question, the two old ladies continued to live together for about two years and until February, 1917, when Sara E. Stevens died. Sara Stevens on March 1, 1916, had made a will, the fifth clause of which follows:

“Fifth: In consideration of my long acquaintance with my dear friend, Mrs. Elizabeth Kemp, of Birmingham, Mich., I direct my executor to see that she shall have all the necessary care and attention, maintenance and support, and shall live in the house so long occupied by us; and that the expense therefor shall be deducted and paid from my estate during the natural life of her, the said Elizabeth Kemp, and at her death her funeral expenses shall be paid from the estate, provided said funeral expenses are not otherwise provided for.”

After the death of Sara E. Stevens and on August 9, 1917, a guardian for Elizabeth Kemp was appointed by the probate court. This action was taken upwards of two years after the date of the deed in question and about two months before the death of Elizabeth Kemp which occurred on October 29, 1917.

Most of the testimony in the record is directed to the question of the mental competency of Elizabeth Kemp on the day of the execution of the deed in question. A résumé of the evidence at large would be of no profit to the profession. It is sufficient to say that several of the witnesses for the plaintiffs were interested in the subject-matter of the litigation and many others gave opinions to the effect that they did not think Elizabeth Kemp competent, but failed to furnish sufficient basis of fact upon which to form an opinion. On the other hand the defendant produced the evidence of the president and cashier of the bank at which Elizabeth Kemp did her business for many years and several intimate friends of long standing who testified, without reservation, that in their opinion Elizabeth Kemp had sufficient mental capacity to know and understand the transaction here in question.

Touching the burden of proof and the weight of the evidence admitted, the learned circuit judge who tried the case and had the advantage of seeing and hearing the witnesses upon the stand in his opinion said:

“If this deed shall be decreed invalid, it must be so held by reason of the mental incapacity of Elizabeth Kemp to make a deed, on the 18th day of February, 1915. This presented a question of fact at the hearing and much testimony was taken for and against the contention on the part of the plaintiffs. A careful review of the testimony and giving it its greatest value convinces me, when taken in connection with the fact that what she sought to accomplish was obviously the most natural thing in the world to do, and with the further fact that the one who looked after her business at the bank and took the acknowledgment of the deed and had visited with her frequently along about the time of the execution of the deed, that the plaintiffs have not sustained the burden resting upon them under the law. The testimony of the family physician, though given with some hesitation, casts the doubt, if there be any doubt, against the contention of the plaintiffs and in favor of the mental capacity of Mrs. Kemp. In this connection, the case of Reagan v. Murray, 176 Mich. 287, is in point wherein it holds:
“ ‘The object of the bill being to set aside the deeds on the ground of incompetency on the part of the grantor, primarily the burden of proving the charge by a preponderance of evidence rests upon complainant, and if the testimony does not prevail jn her favor, or is so evenly balanced as to leave the question in doubt, her suit must fail.’
“In my judgment, if it were necessary to so find, in the decision of the case, the testimony .of the witnesses who were in the best position to know establishes by the greater weight of the proofs that Mrs. Elizabeth Kemp, at the time she executed the deed, February 18, 1915, realized what she was doing and did just, what she intended to do. To hold otherwise, under the proofs in this case, would come dangerously near to taking away the security every one has under the law of disposing of her own property untrammeled by the judgment or wishes of another.”

After a careful reading of all the testimony we find ourselves in agreement with these conclusions. We find the record absolutely barren of any evidence tending to support the charge of undue influence exercised by the grantee in the deed over Mrs. Kemp. As to the claim that the deed should be considered as a mortgage to secure the repayment to Sara E. Stevens the money advanced by her to George Kemp, it is sufficient to say that the deed itself is absolute on its face and the record contains ample evidence of a valid and adequate consideration.

The decree dismissing the bill is affirmed.

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


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    POWELL v. DETROIT UNITED RAILWAY.
    Street Railways — Crossing Accident — Personal Injuries — Contributory Negligence — Question eor Jury.
    In an action against a street railway company for personal injuries caused by a collision between a motor truck in which plaintiff was riding and defendant’s street car, at a street crossing, conflicting testimony as to the manner in which the accident occurred raised a question of fact for the jury, and the court below was in error in disposing of it as a matter of law.
    Error to Wayne; Collingwood, J., presiding.
    Submitted June 6, 1919.
    (Docket No. 68.)
    Decided July 17, 1919.
    Case by Ernest H. Powell against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

      For authorities passing on the question as to whether attempting to cross track in front of observed street car is contributory negligence, see note in L. R. A. 1917C, 699.

      Reversed.

      Charles C. Stewart and 'William C. Gottman, for appellant.

      Corliss, Leete & Moody and A. B. Hall, for appellee.
   Brooke, J.

In this action plaintiff sought to recover damages for a personal injury sustained by him in a collision between his automobile and one of defendant’s cars. Defendant operates one of its lines on Fourteenth avenue, a street running north and south in the city of Detroit. The collision occurred at the junction of Ash street with Fourteenth avenue; plaintiff and one Nicholas Bauer were proceeding westerly along Ash street. Plaintiff, describing the accident, testified:

“On that day, Mr. Bauer was with me and he was driving the machine; it had a right hand drive. I was sitting on the left hand side. Ash street runs east and west and I was sitting on the south side of the car, which was going west on Ash street; we came to the Fourteenth avenue street car tracks; they were putting in a new track and they placed a temporary track on the east side; they had the center all torn up to make the pavement for the new track and the track they had laid there, I would judge, was about eight inches higher than the pavement. The track was laid on top of the pavement; ties or plank run underneath it. When we came to Fourteenth avenue, we were going possibly ten miles an hour; we came to a standstill within about eight feet of the temporary track. We saw a street car coming from the south. We waited to see if it would stop or not. It stopped and started to let off passengers and we started to cross. We had stopped before the car stopped and the moment we saw the car had stopped we started up. The motorman had turned around and was watching towards the back of the car; he had left the controller he runs the car with and was leaning on the door, 'looking at the conductor in the rear end of the Fourteenth avenue car. We got the front wheels nicely up onto the track when the motorman turned around and started his street car; I rose up in the car and sought to draw his attention and just as I rose up he also noticed we were on the track.
“Mr. Hall: What is that?
“I raised up in the automobile to attract his attention. I said, ‘Look out there.’
“Mr. Hall: Whom did you say that to?
“A. To the motorman on his car. He noticed that himself.
“Mr. Hall: I ask that may be stricken out.
“The Court: That may be stricken out.
“We started across the track, got nicely across the track and he started up and ran into us, and then our front wheels were over the track. He caught us right back of the front seat. The street car, while stopping to let off passengers, was distant possibly ten feet. When I called to him and said, look out, the car was then about three feet away, the motorman dodged back for a second, then the car crashed into the side of us and I fell between the car and the automobile. One foot was still in the automobile. The street car pushed us on for about 50 feet with my person between the two.”

Margaret Groff, a witness for plaintiff, testified:

“I live at 1707 Brush street and am employed by the Wayne County and Home Savings Bank. On the 21st of June, 1914, I was sitting on a porch on Fourteenth street, the second door from Ash; I should judge about 40 or 50 feet north of Ash street. It was in the early afternoon and a bright sunshiny day. This truck came along, going west on Ash street, and the street car was coming from the south, going north. The automobile stopped first and right away after the street car stopped and some people got off. They were fixing the track and had built a temporary track over which was an incline made of boards that extended over to the other side of the track. There was a rise there, but I could not say how high it was. After the street car stopped the automobile started up the incline and had reached the top and gone over; the street car started and hit the automobile and pushed it; the street car wasn’t going very fast, and pushed it to the second part of the duplex; there the street car stopped and the motorman got out and the conductor came out of the street car and said to the motorman—
“Objected to by Mr. Hall.
“The Court: What is the purpose of it?
“Mr. Gottman: I can state it.
“Mr. Hall: I object to any statement what the conductor said to the motorman.
“The Court: I sustain the objection.
“I heard the motorman ask a gentleman if he was hurt, but it was not Mr. Powell; Mr. Powell was down on the track. After Mr. Powell was taken out of the wreck, I saw him sitting on the grass between the sidewalk and the curb. The street car pushed the automobile a. matter of 40 or 50 feet, whatever the distance was. I couldn’t swear to that. The motorman was in the street car at the time. I am 20 years old.”

Nicholas Bauer, the driver of the machine, testified on cross-examination:

“Q. And you stopped on the track, did you?
“A. No, sir; I did not stop on the track, I stopped near the track.
“Q. Then you didn’t see the motorman when he started?
“A. No.
“Q. You didn’t look then when you started to go across the tracks?
“A. Yes, I didn’t look at the street car, I looked where I was going.
_ “Q. Then, when you started across the track, you did it without looking at the street car?
“A. The car was stopped and passengers were getting off and I was going ahead.
“Q. Please listen to my question. You were standing there still and before you started across the track you didn’t look at the street car because you would have seen it?
“A. If I had looked. I was looking across the street.
“Q. You were looking across the street and did not look at the street car when you started to cross, is that right?
“Yes, sir.”
On re-direct:
“Q. Well, I believe you stated that you weren’t looking at the street car. Now, tell us more definitely about that?
“A. When the street car stopped and let off passengers, I didn’t look at the street car any more.
“Q. It had stopped then?
“A. It was stopped.
“Q. Did you start before the street car started?
“A. Yes, sir.”
And on re-cross:
“Q. Now, you say when you started across the track you were looking where you were going, not at the street car?
“A. When I was going over the track; yes, sir.
“Q. Just answer my questions. When you started that automobile were you looking where — you were not looking at the street car; you were looking where you were going?
“A. Yes, sir.
“Q. Is that the truth?
' “A. Yes.”

A motion for a directed verdict upon the ground that plaintiff was guilty of contributory negligence as a matter of law, made at the close of the plaintiff’s case, was denied.

Defendant then introduced testimony tending to snow that plaintiff’s automobile did not stop before attempting to cross the track and further that defendant’s car made no stop at Ash street upon the occasion in question. i±t the close of all the testimony, defendant’s counsel renewed his motion for a directed verdict which the court granted, saying:

“In this case Mr. Bauer was driving the car, and not Mr. Powell, who owned the car, therefore, if Mr. Bauer was negligent that negligence was imputed to the owner of the car who was sitting by his side. The testimony in the case is conflicting as it usually is in this class of cases.
“Some of the witnesses testified to the car stopping before the crossing — that is, the street car. Some testified that it went right on. . However, that is not interesting to us, considering the testimony of Mr. Bauer who was driving the car. We have to consider that in the most favorable light to Mr. Bauer for the purpose I am submitting this to you now. Mr. Bauer testified that the street car came to a stop, that two passengers got-off; that he came to a stop. The street car was within 15 feet of the crossing or thereabouts. The automobile was within 6 or 8 feet of the crossing. Then, he testifies that he looked where he was going, started his automobile over the track and the street car hit him. He stated distinctly that he didn’t look at the street car, but he looked in the direction that he was going. Under that testimony, gentlemen, I shall have to charge you that it was the duty of the person driving the car to look at the street car before he started. He was in a place of safety. Without looking at the street car, which was there, he started across. He was caught, and under the testimony in this case, it becomes my duty to say to you that the driver of the car was guilty of contributory negligence, that that negligence of the driver is the negligence of the owner of the car, and that under these circumstances the plaintiff, Mr. Powell, cannot recover, and therefore, gentlemen, without leaving your seats you will find a verdict for the defendant of not guilty.”

We are of opinion that the conflicting testimony as to the manner in which the accident occurred raised a question of fact for the determination of the jury and that the learned circuit judge was in error in disposing of it as a matter of law.

The judgment is reversed, with costs, and a new trial ordered.

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


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      In re MANSHAEM’S ESTATE. MANSHAEM v. NICHOLS.
    1. Wills — Construction—Intention of Testator.
    The first and most important rule to he observed in construing wills is to ascertain the intention of the testator and to give effect to that intention if it be legally possible.
    2. Same — Intent of Will as a Whole.
    The intention must be gathered from the whole will, and where possible, effect must be given to all of its provisions.
    3. Same — Construction.
    While the will speaks from the death of the testator and not from its date, construction may often be aided by a consideration of the facts and circumstances existing at the date of the will.
    4. Same — Ademption—Revocation—Change of Property — Rule.
    The rule as to ademption or the presumption of revocation through a change during the lifetime of the testator in the nature of the property devised or bequeathed does not apply where the proceeds of a certain property, and not the property itself, is the subject of the gift.
    5. Same — Personal Property — Effect of Sale of Realty During Testator’s Lifetime — Intention.
    Where testator in his will, after making certain specific bequests, and providing for certain expenses, gave to his two daughters the remaining personal property, and providing that, if it should not amount to $800, the two sons were to make up the deficiency, and stating that this provision, together with such gifts as he had already made them, should constitute their entire share in his estate, held, to negative the intention of testator that the daughters should share in the proceeds of the farm which the will directed should be sold and the proceeds divided equally between the two sons, but which was sold during his lifetime and the proceeds kept intact until his death.

      For authorities passing on the question of law governing construction of will, see note in 2 L. R. A. (N. S.) 443.

      6. Same — Bequest of Proceeds of Realty — Sale of Realty by Testator — Effect.
    Where testator’s will directed that the farm should be sold to the highest bidder, and provided that after the sale was consummated the entire rest and residue of the estate should go to the two sons in equal shares, the sale of the farm in testator’s lifetime would not affect the rights of the sons under the will even if the sale was made with the avowed purpose of disinheriting them.
    Error to Kent; Brown, J.
    Submitted June 13, 1919.
    (Docket No. 46.)
    Decided July 17, 1919.
    Daniel F. Manshaem filed a petition for a construction of the last will of John Manshaem, deceased. There was a construction of said will in favor of petitioner, and Florence Nichols and another, contestants, appealed to the circuit court. Judgment for contestants. Petitioner brings error.
    Reversed.

      Jewell & Smith, for appellant.

      Charles E. Ward, for appellees.
    On September 6, 1910, John Manshaem made and published his last will and testament in the following language:

      “First. I direct payment of my just debts, funeral expenses, including the placing of a proper marker over my grave and the expense of administering my estate. I desire to be decently and respectably buried, but not expensively.

      “Second. I give and bequeath unto my son, Evril J. Manshaem, my gold watch and chain and my bedstead, my mattress and feather bed and two feather pillows and the other bed clothes pertaining thereto.

      “Third. I give and bequeath unto my daughter, Florence Nichols, two-thirds (2/3) of whatever personal property I shall die possessed of, and unto my daughter, Della J. Dennis, the remaining one-third (1/3) of said personal property, to them and their respective heirs forever,
    “Should my personal property, after the payment of debts, funeral expenses and administration charges, not equal eight hundred dollars ($800.00), then my two sons hereinafter named, shall in equal shares furnish enough moneys, to produce the deficiency up to that sum, and in such event my said daughter Florence, shall have and receive five hundred dollars ($500.00) of said eight hundred dollars ($800.00), and my daughter Della three hundred dollars. ($300.-00). The provisions made in this paragraph for my said daughters, together with such gifts as I have made them in the past, shall constitute their entire shares in my estate.

      “Fourth. I hereby appoint Benjamin C. Porter, cashier of the South Grand Rapids State Bank, as executor hereof, and I hereby direct my executor, or his successors, in office, or the person appointed to act in his. stead, should he fail to qualify, to sell my farm in Wyoming township at public auction, after giving reasonable notice of such sale, the sale to be made to the highest bidder therefor, and convert the same into cash. After said sale has been consummated, I give, devise and bequeath unto my two sons, Daniel F. and Evril J. Manshaem, the entire rest and residue of my estate, the same to be had by them in equal shares, to have and to hold to them and their respective heirs forever.

      “Fifth. Should my daughter-in-law, the wife of my said son, Daniel F. Manshaem, claim, or pretend to have any claim against my estate, and should she present the same for allowance, and should any sum be awarded her thereon, I direct that the same shall be paid to her out of the portion of my estate herein given to her husband.

      “Sixth. I hereby revoke any and all wills and testamentary writings by me at any time heretofore made.”
    At that time he was 80 years of age. About three years later he was adjudged mentally incompetent; a guardian was appointed and on March 12, 1914, he was adjudged insane and admitted -to the State hospital at Kalamazoo where he died in August, 1915. He had been a widower for upwards of 20 years prior to his death and had made his home for the most part during that time with his son Daniel. His sole heirs at law consisted of his four children named in the will, none of whom contested the proceedings for guardianship nor the proceedings for the probate of the will which was duly admitted to probate in the probate court for Kent coúnty. Following said probate and on July 1, 1916, Daniel F. Manshaem filed a petition for the construction of said will in the probate court. After argument the probate judge made the following finding as to the proper construction of the will:
    ' “1st. The farm in Wyoming township sold for $6,~ 000.00 and I determine that to be its value. This amount should be equally divided between the two sons, Daniel F. and Evril J. Manshaem, less their pro rata share of the administration expenses, and the expenses on the hearing of this petition hereafter to be determined.
    “2d. The balance of the property of every kind and nature except the property mentioned in paragraph ‘two’ of deceased’s will, is divided as follows : Two-thirds to Florence Nichols, and one-third to Della J. Dennis, less their pro rata share of the expenses of administration and the expense on the hearing of this petition hereafter to be taxed.”
    —and later made an order for distribution based upon such finding. From this order Della J. Dennis and Florence Nichols, the two daughters of the deceased, filed a claim of appeal to the circuit court. Something more than a year after the making of the will and on December 6, 1911, the testator conveyed to his son, Daniel F. Manshaem, the farm mentioned in the will for an express consideration of $6,000. Said deed contained the following reservation:
    “Said first party reserving to himself the right to use and occupy the downstairs front room in dwelling house now located on said described premises during his lifetime, said room to be properly cared for by said second party, and kept in a neat and sanitary condition ; said second party is also to do necessary laundry work for said first party or hire the same done at his own expense.”
    The money received from said sale passed into the hands of the guardian of testator and was in turn by him paid over to the executor of the estate after the death of the testator and now remains intact and ready for distribution under the will. The learned circuit judge who heard the case on appeal reversed the order of the probate court and made the following finding:
    _ “In this proceeding Daniel F. Manshaem filed a petition in the probate court for the county of Kent, in which petition he prayed, in substance, that the will of John Manshaem, deceased, be construed to mean that the farm he then owned should be sold and the proceeds divided equally between Daniel F. Manshaem and Evril J. Manshaem (subject to the possible payment by them to Della J. Dennis and Florence Nichols of enough to bring their portion up to eight hundred dollars), without regard to the question whether he in his lifetime sell the farm, the proceeds thereof in his hands should not become personal property to be distributed as such under his will, but should be divided as above stated.
    “Said petition also prayed, in substance, that said will be construed to mean that Della J. Dennis and Florence Nichols should have only the personal prop-, erty John Manshaem then had, together with such personal property as he might thereafter acquire from any source except from the sale of said farm; the said Della J. Dennis and Florence Nichols, however, to have a minimum of eight hundred dollars, in case the personal property he then had, together with such addition thereto, if any, should not amount to eight hundred dollars at the time of his death.
    . “A hearing was had upon this petition in the probate court for the county of Kent before the Honorable Lewis .L. Thompson, acting probate judge, who made an order of distribution, granting the prayer of said petition and distributing said estate accordingly. Della J. Dennis and Florence Nichols appealed to this court from said order, and said cause came on to be heard before the court without a jury, whereupon the parties produced witnesses who were sworn in open court, and the case was then argued by counsel for the respective parties, after which the court had due deliberation thereon.
    “There is no substantial difference between the counsel of the respective parties as to the law applicable to this case, both stating in substance that in order that the court sustain the finding and construction of the probate court, it must find from the language of the will itself that it was the intention of the testator that the devise or bequest to Daniel F. and Evril J. Manshaém should stand, notwithstanding any change in the form of the property during the lifetime of testator.
    “The court is unable to find such an intention expressed in the will in question. On the contrary, the language:
    “ ‘I give and bequeath unto my daughter Florence Nichols two-thirds of whatever personal property I may die possessed of, and to my daughter Della J. Dennis the remaining one-third of said personal property, to them and their respective heirs forever,’
    —is plain and unequivocal, and it is not inconsistent with any other provision of the will.
    “The construction contended for by Daniel F. Manshaem cannot be sustained without disregarding the language above quoted. No force or effect could be given the words ‘whatever personal property I shall die possessed of,’ if the contention of petitioner is sustained.
    “It is the common understanding of laymen, as well as lawyers, that the making of a will disposing of a certain piece of property does not deprive the testator, during his lifetime, of the right and ability to himself dispose of that property, or to so change its form that the proceeds will pass under his will to persons other than those who would have received it had it remained intact until the death of the testator.

      “The court finds that this was the opinion and understanding of John Manshaem at and after the time of making the will in question.
    “The court finds that at and after the time of the execution of the deed of the farm in question on the 6th day of December, 1911, the said John Manshaem intended to so change the form of his property that the proceeds of said farm should become personal property.
    “The court further finds that at and after the time» of the making of said deed, the said John Manshaem intended that the proceeds of the sale of said farm to Daniel F. Manshaem should not be divided between Daniel F. Manshaem and Evril J. Manshaem under the fourth clause of his will or otherwise.
    “The court further finds that the said John Manshaem had reason to and did undergo a change of feelings toward the said Daniel F. Manshaem after the making of said will, and that at and after the time of deeding said farm to the said Daniel F. Manshaem, the said John Manshaem felt and believed that his son Daniel F. Manshaem was not kind and considerate toward him; that the wife of said Daniel F. Manshaem was not kind and considerate toward him; that at and after the time of making said deed, the said John Manshaem felt and believed that in deeding said farm to said Daniel F. Manshaem for the consideration of six thousand dollars he was actually making a gift to the said Daniel F. Manshaem by reason of the fact that the said farm was worth a substantial sum in excess of six thousand dollars; that the said Daniel F. Manshaem had used and appropriated to his own use farm tools and other personal property considered by John Manshaem to be of considerable value, belonging to the said John Manshaem and that much ill feeling arose and contention had between John Manshaem and Daniel F. Manshaem over said tools; that the said Daniel F. Manshaem had received all he ought to receive in view of the circumstances. The said John Manshaem also felt and believed that, after he had deeded said farm to said Daniel F. Manshaem reserving a room in the house on said farm and the right to certain care and attention therein, the said Daniel F. Manshaem and the wife of said Daniel F. Manshaem treated him with indifference and unkindness, and said John Manshaem stated in substance to various people that Daniel F. Manshaem had received all that he would ever get from him; that he had received all he was entitled to, and that he knew and understood what had been done by him and the effect thereof, and, in substance that the proceeds of said farm would not be divided between the said Daniel F. Manshaem and Evril J. Manshaem but would go to his daughters.
    “The court finds that said farm was worth a substantial sum over and .above six thousand dollars at the time it was deeded to petitioner; that petitioner did have and use some of the tools and other property of the said John Manshaem, and that the said John Manshaem had some reason to feel he was not treated with the kindness due him, especially after deeding his farm to petitioner.
    “The court finds that the language in the fourth paragraph in said will does not show an intention on the part of the testator that the proceeds of the farm in question, if sold by testator in his lifetime and converted into money or other personal property, should be divided between Daniel F. Manshaem and Evril J. Manshaem; and the court is of the opinion that the testator, in providing that the executor should sell said farm and then divide the proceeds between Daniel F. and Evril J. Manshaem, intended thereby only to provide against probable trouble and ill feeling between his two sons if they became owners in common of said farm directly under the will, and the testator did not intend or understand that by the provisions of said fourth paragraph, or by any other provision in said will, he had deprived himself of the right to dispose of said farm in his lifetime, and to handle and dispose of the proceeds as he saw fit, either during his lifetime or at his death, by and under the third paragraph of his said will.
    “It follows that the construction placed upon said will by the probate court of Kent county was, under the terms of said will and under the evidence in the case, erroneous.
    “The order of the probate court for the county of Kent, made on the 18th day of August, 1916, construing said will and distributing said estate, will therefore be set aside and reversed. That all the personal property belonging to said estate, including the proceeds of the sale of said farm, except that mentioned in the second paragraph of said will already distributed, will be divided between Florence Nichols and Della J. Dennis, according to the third paragraph of said will; that is to say, two-thirds thereof to Florence Nichols, and one-third thereof to Della J. Dennis, subject to the payment of the necessary expenses of administration in proportion to the share provided for each in said third paragraph.
    “The probate court for the county of Kent will be directed to enter the necessary orders and take the necessary steps to settle and distribute said estate in compliance with this opinion and construction.
    “Della J. Dennis and Florence Nichols will recover their costs in this proceeding against Daniel F. Manshaem, including an attorney fee of twenty-five dollars.
    “Execution therefor will be allowed.”
    Daniel F. Manshaem now reviews the case in this court under some 33 assignments of error.
   Brooke, J.

“The provisions made in this paragraph for my said daughters, together with such gifts as I have made them in the past, shall constitute their entire shares in my estate.”

In the fourth paragraph he names his executor and provides for a sale by the executor of his farm, adding:

“After said sale has been consummated, I give, devise, and bequeath unto my two sons, Daniel F. and Evril J. Manshaem, the entire rest and residue of my estate, the same to be had by them in equal shares, to have and to hold to them and their respective heirs forever.”

After reading these two paragraphs it is impossible to doubt that it was the testator’s intention most clearly expressed to give to his two daughters the personal property remaining after certain specific bequests, testator’s funeral expenses, administrator’s expenses and burial expenses had been paid. This balance from his knowledge of the estate he presumed might not amount to $800 and therefore he provided that his two sons should make up such possible deficiency. He further indicated that the farm should be, by his executor, sold and the entire rest and residue of Ms estate was devised and bequeathed equally to his two sons. The rule as to ademption or the presumption of revocation through a change during the lifetime of the testator in the nature of the property devised or bequeathed does not apply where, as in this case, the proceeds of a certain property and not the property itself is the subject of the gift.

Paragraph four does not constitute a specific devise of the farm to the two sons. . SpeaMng of a similar situation, the court, in the case of Bills v. Putnam, 64 N. H. 554 (15 Atl. 138), said: ,

_ “They treat this matter as though there was a specific devise of real estate, or as though the last clause of the will was incapable of disposing of anything but real estate. If that were so, there might be some' ground for their, position. But when, we see there is no specific devise of real estate, and that the last clause of the will, instead of being restricted to disposing of real estate, is a sweeping residuary clause, capable of disposing of both personal and real estate, this whole objection is at once disposed of. The conveying of part of the real estate by the testatrix after the making of the will, with such a residuary clause as is in this will, does not indicate any change of intention on her part in regard to the disposition of her will pro tanto, because she was perfectly aware that the proceeds of this real estate, being in personal property, could pass equally as well under this residuary clause as the real estate itself.”

See, also, upon this point, 2 Alexander on Wills, p. 1089; Black’s Estate, 223 Pa. 382 (72 Atl. 631); and Miller’s Exr. v. Malone, 109 Ky. 133 (58 S. W. 708, 95 Am. St. Rep. 338).

Testimony introduced at the time of the trial as to fugitive statements made by the testator after the sale of the farm to Daniel to the effect that Daniel would never receive any more of his property, are relied upon by appellees as indicating a change in the testator’s intention toward Daniel Manshaem' and that he intended by the sale of the farm to Daniel to change the farm into personalty for the purpose of having it go to his daughters under paragraph three instead of to his sons under paragraph four. We have seen that the sale of the farm by the testator during his lifetime to Daniel does not legally affect the rights of Daniel and his brother uiider paragraph four of the will. If it appeared beyond peradventure (which is not at all the case), that this sale was made with the avowed purpose of disinheriting Daniel and his brother, the result must be the same.

The judgment is reversed, with costs to appellant.

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


text:
    CHRISTE v. SPRINGFIELD FIRE & MARINE INSURANCE CO.
    1. Commencement of Suit — Filing Declaration — Service—Statute — Legislative Intent.
    Under the judicature act (3 Comp. Laws 1915, § 12407) suits may be commenced by simply filing tbe declaration with, indorsed notice thereon; it being the evident intention of the legislature to change the former rule requiring service by omitting any reference whatever thereto,
    2. Insurance — Fire Insurance — Limitation of Actions — Service.
    Where a fire insurance policy limited the commencement of an action thereon to 12 months next after the fire, and the declaration with rule to plead attached was filed five days before the expiration of said time limit, but was not served until four days after its expiration, held, that the action was commenced within the time limited in the policy.

      Error to Wayne; Webster (Arthur), J.
    Submitted June 11, 1919.
    (Docket No. 36.)
    Decided July 17, 1919.
    Assumpsit by Elmer H. Christe against the Springfield Fire & Marine Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Frederick J. Ward, for appellant.

      William Friedman, for appellee.
   BROOKE, J.

This is an action on a fire insurance policy. It was tried by the circuit judge without a jury under a stipulated statement of fact and a judgment was rendered in favor of the plaintiff which defendant here reviews. The policy contained the following provision:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve (12) months next after the fire.”

The fire occurred on September 15, 1916. Suit was thereafter commenced by declaration with rule to plead attached. The declaration was filed on September 10, 1917. It was served by a deputy sheriff of Ingham county on the insurance commissioner of the state on September 19, 1917. It is therefore apparent that the declaration was filed five days before the expiration of the year, but served four days after the expiration of the year limited by the terms of the policy. The sole question presented on this record is whether the learned circuit judge was right in holding that the suit was commenced within one year in accordance with the terms of the policy.

Section 9985 of the Compiled Laws of 1897 as amended by Act No. 168, Pub. Acts 1899, and Act-No. 76, Pub. Acts 1905, provided:

“Actions brought for the recovery of any debt, or for damages only, may be commenced, either:
“1. By original writ; or,
“2. By filing in the office of one of the clerks of the court a declaration, to which is attached, or upon which is indorsed, a rule requiring the defendant to plead to such declaration within fifteen days after the service of a copy thereof and notice of such rule, and serving a copy of such declaration, and notice of such rule personally on the defendant.” * * *

Under the provisions of this statute this court held in several cases that inasmuch as the statute provided for' serving a copy of the declaration, suit was not commenced until such service was had. Detroit Free Press Co. v. Bagg, 78 Mich. 650; Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (7 L. R. A. 511); Wilton v. City of Detroit, 138 Mich. 67; and Boyle v. City of Detroit, 152 Mich. 248.

In 1915, the so-called judicature act was passed. Section 12407, 3 Comp. Laws 1915, a part thereof, provides as follows:

“All actions at law in any court of record, except mandamus, quo warranto, and certiorari, may be commenced either,
“1. By original writ; or
“2. By filing in the office of one of the clerks of the court, a declaration upon which is indorsed a notice in substantially the following form:
“To......................... .Defendant:
“You are hereby notified that a suit has been commenced against you as defendant by............... •as plaintiff, and that the within is a true copy of plaintiff’s declaration in said cause, and that if you desire to defend the same, you are required to plead thereto within fifteen days after service upon you of a copy of said declaration.
“Dated..........................
"
“Attorney for plaintiff.”

It will be noted that in this statute there is no reference whatever to service. The framers of the new act undoubtedly had the old one before them and the omission of the provision for service of the declaration as a part of the necessary procedure in commencement of actions, it appears to us is significant. We are of opinion that it was the legislative intention to change the rule as to the commencement of suits by declaration and by the enactment of the above quoted section provide that said suits might be commenced simply by filing the declaration with the indorsed notice thereon.

Judgment is affirmed.

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


author: Steere, J.

text:
    OAKMAN v. RECORDER OF THE CITY OF DETROIT.
    Criminal Law — Presentment—Grand Jury — Secrecy — Recorder’s Court of Detroit.
    Where the recorder of the city of Detroit conducted an investigation for the discovery of crime under authority of Act No. 196, Pub. Acts 1917, he was exercising functions analogous to those of grand juries, upon whom secrecy is enjoined by 3 Comp. Laws 1915, §.15703, and his act in making his findings in a so-called “presentment” part of the official records of his court was therefore illegal, and the issuance of warrants out of his court some time later charging the president of the board of water commissioners with the commission of various offenses recited in said “presentment” would not validate his unwarranted act.
    Mandamus by Robert Oakman to compel Charles T, Wilkins, recorder of the city of Detroit, to strike a certain document from the files of the recorder’s court.
    Submitted January 14, 1919.
    (Calendar No. 28,283.)
    Writ granted July 17, 1919.

      Barnard, & VanDeMark, for plaintiff.

      Edwin Henderson, for defendant.
    This is an application for a writ of mandamus to require the respondent to strike from the files of the recorder’s court of the city of Detroit a certain document designated as a “presentment” and to expunge from the records of said recorder’s court all references to said so-called presentment, in the proceedings of said court. The paper, the subject of the application, is self-explanatory and is as follows:
    “(Filed October 8, 1917.)
    “John A. Grogan, Clerk.
    “Presentment to the recorder’s court of the city of Detroit, by William F. Connolly, recorder of the city of Detroit, holding an inquisition into undiscovered and unpunished crime in the city of Detroit, under and by virtue of Act No. 196 of the Public Acts of 1917, being an ‘Act to authorize proceedings for the discovery of crime and to provide penalties for the violation of such procedure.’.
    “Foreword.
    “This inquiry has been directed, in part, to the conduct of the water board, with particular reference to the building of extensions of water mains and service lines. It is in testimony that any person desiring to have a service line laid in a street where there are no houses, must first deposit in cash with the water board, a bonus equal to fifteen per cent, of the estimated cost of laying a six-inch pipe. This, until recently, has been the uniform and unbroken rule and practice of the water board.
    “It is in testimony that Robert Oakman, a real estate dealer in the city of Detroit, is president of the board of water commissioners. Further, that he has filed a large number of applications for the laying of service pipe lines in subdivisions of which, he is the owner. An investigation of the records of the water board, discloses that contrary to the uniform practice and rule of the water board, he does not, in every instance, pay in advance the fifteen per cent, bonus required. On the contrary, that he keeps an open account with the water board, for the bonuses which he should pay. On the pipe laid by the water board upon Mr. Oakman’s applications, it is estimated that he ought to have paid the water board $15,564.10, and that he has actually paid the board about $9,200, leaving an unpaid balance of approximately $6,000. Pipes for which these bonuses should have been paid in advance, have almost entirely been laid by the board of water commissioners.
    “The laying of water pipes in streets whereon no houses are built, is a matter of great expense to the board of water commissioners, and the rate payers of the city of Detroit, whom that board represents. Where there are no houses upon such streets, the board can derive no revenue from the sale of water through the use of these pipes. Naturally, it is questionable business policy, when pipe is up to $60 a ton, to lay pipes which will not be revenue producing, even though the 15 per cent bonus were paid, because the other 85 per cent must come out of the funds of the water board. The situation is aggravated, of course, when, as in the case of Commissioner Oakman, even the 15 per cent bonus is not paid in full, where there are no houses to be a source of revenue for the board from the use of such pipes.
    “It is in evidence further that a 36-inch feed main and a 6-inch service pipe were laid on the Ford Highway, from Twelfth street to Linwood avenue, a distance of approximately one-half mile, without an order of the board of water commissioners, and that as to the 6-inch service line, no application for the laying of the same^was ever made, and no bonus ever estimated or paid. It is in evidence further that on Burlingame avenue, west of Twelfth street, over 1,400 feet of 8-inch service pipe have been laid without any application for the same, without any estimate or payment of a bonus, and without any order or even record of the laying of such pipe.
    “When no application is made for the laying of service pipe, of course no estimate of the bonus can be had, and, therefore, no payment of bonus can. be exacted by the fiscal department of the board. Hence, in the cases above cited, there being no application made, and the pipe in question being laid by the general manager without the bonus being estimated, it could not be charged against the open account which it is claimed Commissioner Oakman has ordered to be kept with himself on the water board’s ledger.
    “It is also in evidence that about two years ago, one R. D. Baker, upon the order of Robert Oakman, opened a ‘blow-off’ in a water main of the board of water commissioners of the city of Detroit, at Otsego avenue and the city line, installed a three-inch meter thereon, and attached thereto a galvanized iron pipe which furnished water to two streets outside of the city limits in one of the Oakman subdivisions. It is further in evidence that no record was ever made in any department of the water board as to this transaction, and that it was discovered by accident. At the time it was discovered, the meter had been working for something like a year. It was what is known as a million meter, that is to say, that it would automatically turn back and start over its recording when the million foot point was reached. By order of one of the commissioners, the secretary billed Commissioner Oakman for the amount of water recorded upon the said meter, and subsequently, by order of the same commissioner, presented the bill to Commissioner Oak-man at a meeting of the board. The bill for this water has never been paid.
    “It is further in testimony that much confusion and controversy has arisen in the keeping of the accounts of the board with the American Car & Foundry Company, its contractors for iron pipe, by reason of the fact that General Manager Leisen ordered the diverting of a large quantity of water board pipe from the use of the board to the use of Commissioner Oakman in one of his real estate operations. The water board had a favorable contract, at $29 per. ton, for this pipe. At a time when the market price was considerably higher, and the smaller sizes of pipe practically unobtainable, it was unprofitable for the water board to supply outsiders with pipe from its favorable contract, because as soon as the quantity purchased upon the contract was delivered, the board was compelled to enter into a new contract at an advanced price. Nevertheless, this was done, and there still exists a foggy controversy as to whether some of this pipe_ should be paid for by the water board or by Commissioner Oakman, the representatives of the contracting company billing the same, and demanding pay from the water board for this pipe.
    “It is superfluous to comment upon these relations of the president of the water board with the activities of his board. Also it is superfluous to suggest that wide stretches of plow land, even though subdivided, do not, from the viewpoint of public service, require the adornment of miles of water mains, varying in size from 16 to 36 inches, when future commitments of the water board for pipe supply will have to be made on a basis of $60 per ton.
    (Signed) “W. F. Connolly.”
    It was filed on October 8, 1917, and immediately became public. On October 17, 1917, counsel for petitioner made an application to the recorder’s court for an order to strike said so-called “presentment” from the files. On January 7, 1918, two several warrants were issued out of the recorder’s court for the city of Detroit against the petitioner wherein said petitioner stands charged with the commission of certain offenses, some of which are mentioned in the so-called “presentment,” but others of which are not. On the following day, January 8, 1918, the court denied the order to strike, saying:
    “It appearing by the files and records of this court, that the said statement constituting an informal complaint and finding of probable cause against the said Robert Oakman is now superseded by and merged in a formal complaint and warrant filed in and issued out of this court, on January 7,1918, charging said Robert Oakman with wilful neglect of duty, enjoined by law as a public officer, and covering the matters set forth in said formal complaint and more, the court holds that said motion to expunge involves only a moot question.
    “Read, corrected and signed in open court.
    “W. F. Connolly,
    (Seal.) “Recorder of the city of Detroit.”
    On the 28th day of January, 1918, an order to show cause issued out of this court directed to the recorder of the recorder’s court of the city of Detroit. In the meantime and on January 9, 1918, Hon. William F. Connolly had ceased to be recorder and Hon. Charles T. Wilkins had succeeded him in said office. The return to said order to show cause is in part as follows :
    “I do further return that for a considerable period of time before the filing of the paper writing referred to in the petition herein and denominated ‘presentment’ the said William F. Connolly, then being a judge of a court of record, to wit: Recorder of the city of Detroit, presiding over the recorder’s court in said city, upon filing of a complaint with him, as such official, and having probable cause to suspect that crimes had been committed within his jurisdiction and that certain persons might be able to give material evidence respecting such offenses, acting by the authority of law and particularly under the authority of Act No. 196 of the Puolic Acts of 1917, did require the attendance before him of divers persons as witnesses and did take certain testimony concerning the alleged commission of crimes within his. jurisdiction. That upon and as a result of such inquiry, the said William F. Connolly, as such judge, being satisfied that certain crimes had been committed and that there was probable cause to suspect said Robert Oakman to have been guilty of the commission thereof, thereupon made his findings in the premises, and that the said crimes had been committed and that there was. probable cause to suspect the said Robert Oakman of having been guilty thereof, and for the purpose of causing the apprehension of the said Robert Oakman by proper process to answer for such crimes, said William F. Connolly, acting in his judicial capacity aforesaid, made and filed the paper writing referred to in said petition and called therein a ‘presentment,’ and thereafter, by means of and by use of the said presentment and findings of fact, and as the result of the taking of the testimony aforesaid in the investigation aforesaid, warrants charging the crimes therein found recorded and stated, were prepared and issued, and the said Robert Oakman was thereafter apprehended by the said warrants of the said recorder, William F. Connolly, charging the crimes aforesaid against the said Oakman, and based upon said findings as stated in said presentment, and held to answer therefor, as provided by law. That said Oakman was duly arraigned upon said warrants and on a plea of not guilty, let to bail therein; which proceedings and warrants and charges of crime at the date of this return are still pending against said Oak-man and are yet undetermined before this respondent. Copies of said warrants are hereto attached and made a part of this return, and marked Exhibits B and C.”
   Steere, J.

(after stating the facts). Act No. 196 of the Public Acts of 1917 is entitled:

“An act to authorize proceedings for the discovery of crime, and to provide penalties for a violation of such procedure.”

Sections 1 and 2 of said act are as follows :

‘‘Whenever by reason of the filing of any complaint which may be upon information and belief, any justice of the peace, police justice or judge of a court of record shall have probable cause to suspect that any crime, offense, misdemeanor or violation of any city ordinance, shall have been committed within his jurisdiction, and that any person may be able to give any material evidence respecting such offense, such justice or judge in his discretion may, and upon the application of the prosecuting attorney, or city attorney in the case of suspected violation of ordinances, shall require such person to attend before him as a witness and answer such questions as such justice or judge may require concerning any violation of law about which he may be questioned; and the proceedings to summon such witness and to compel him to testify shall, as far as possible, be the same as proceedings to summon witnesses and compel their attendance and testimony, and such witnesses shall be entitled to the same compensation as in other criminal proceedings.
“If upon such inquiry the justice or judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process, and, upon the return of such process served or executed, the justice or judge shall proceed with the case, matter or proceeding in like manner as upon formal complaint, and in respect of communicating' or divulging any statement made by such witnesses during the course of such inquiry, the justice, judge, prosecuting attorney and other person or persons who may, at the discretion of such justice, be admitted to such inquiry, shall be governed by the provisions of law relative to grand jurors.”

Sections 3 and 4 provide for the punishment of recalcitrant witnesses and under certain circumstances for immunity of witnesses compelled to give incriminating testimony. It is the contention of the relator that the closing words of section 2,—

“and in respect of communicating or divulging any statement made by such witnesses during the course of such inquiry the justice, judge, prosecuting attorney, etc. * * * shall be governed by the provisions of the law relative to grand jurors,”
—were intended by the legislature to operate as a limitation upon the power of the conservator of the peace and to enforce secrecy on the part of the officer making the investigation in the same manner as secrecy is enjoined upon grand jurors in the course of their investigation. The oath of a grand juror set forth in section 15703, 3 Comp. Laws 1915, provides in part:
“your own counsel, and the counsel of the people and bf your fellows you shall keep secret.”

Section 15713 follows:

“No grand juror or officer of the court shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment, until such person has been arrested.”

Assuming, as was apparently assumed by the recorder, that in making the investigation he was exercising functions analogous to those of a grand jury, it is the contention of relator that the so-called “presentment” filed by him should, upon application, have been expunged from the records under the authority of Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200. A comprehensive review of the authorities touching the matter of presentments and indictments by grand juries will be found in that case and need not here be repeated.

It is, we think, clear, that the respondent, acting either as a conservator of the peace or in the exercise of powers analogous to those possessed by grand juries, was without power to make his so-called “presentment” a part of the official records of his court. On behalf of the respondent it is urged that the fact that some three months later warrants were issued out of his court formally charging the petitioner with the commission of various offenses recited in the so-called “presentment” is sufficient to distinguish the case at bar from Bennett v. Kalamazoo Circuit Judge, supra. This argument is not without force, but in the light of the reasoning of the decisions digested. in that opinion we believe that the subsequent, though tardy, issuance of the warrants does not validate an act which at the time of its performance was unwarranted. It is quite true, as contended on behalf of the respondent, that the subsequent issuance of the warrants has made public in a legal way the matter contained in the “presentment,” but we are unable to see how this fact should affect the determination of a naked legal question.

The mandamus will issue as prayed.

Bird, C. J., and Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.