author: McGrath, C. J. Long, J.

text:
    Helen Adams and Frank U. Viele v. Jason R. Watkins.

      Deed — Parol evidence — Groioing crops — Consideration.
    A farm upon which a crop of wheat was growing was sold and conveyed for a stated consideration, and the grantee went into possession. The grantor sued the grantee in assumpsit for one-third of the net proceeds of the wheat, and sought to show in support of his claim that it was verbally agreed at the time of the conveyance of the land that, as a further consideration for said conveyance, the grantee should harvest and market the wheat, and pay the grantor one-third of the net proceeds realized on such sale. And it is held that the terms and effect of the deed cannot be varied by proof of such a verbal agreement.

    Error to Hillsdale. (Lane, J.)
    Submitted on briefs October 5, 1894.
    Decided January 4, 1895.

      Assumpsit. Defendant brings error.
    Eeversed.
    The facts are stated in the opinion.

      A. B. St. John, for appellant.

      E. J. March, for plaintiffs.

       For cases treating of the sale or mortgage of future crops, see an exhaustive note to the Michigan case of Dickey v. Waldo, 23 L. R. A. 449.

   McGrath, C. J.

On March 1, 1887, plaintiffs conveyed to defendant certain farming lands for an expressed consideration of $3,600, and defendant went into possession. At the time of the conveyance, certain wheat was growing upon the' land. Plaintiffs insist that it was agreed by parol that, as a further consideration for the conveyance, ■defendant sho'uld harvest and market the wheat, and, after deducting the cost of threshing, pay to plaintiffs one-third of the proceeds; and this suit is brought to recover such one-third of the proceeds.

The court instructed the jury that, although a parol reservation of growing crops, upon a sale and conveyance of lands, was within the statute of frauds, yet, if a contract was made as claimed by plaintiffs, they should find for plaintiffs. This instruction was erroneous. It is true that a naked contract resting in parol for the severance and delivery of a growing crop is not within the statute, but here the conveyance carried with it the wheat, and vested in the grantee an absolute title thereto. Plaintiffs set up as a part of the same contract a parol agreement respecting the wheat, which is inconsistent with the grant. It is not a question of the statute of frauds, but an attempt to vary the terms and effect of a written instrument by parol. In other words, the written instrument transferred to the grantee the absolute title to the wheat, and it is sought to show by parol that the right to one-third of the wheat failed upon its severance from the soil. The deed imports a sale to the grantee; the parol agreement, that the sale was not absolute; that a trust was created respecting the wheat, or that there was a retransfer, or that there was an agreement by the terms of which an interest in the wheat should be retained, of that the crop transferred, when severed, should be divided. However the transaction may be viewed, the parol agreement sought to be shown modifies and varies the terms and effect of the conveyance. Vanderkarr v. Thompson, 19 Mich. 82.

The judgment is reversed.

Grant and Hooker, JJ., concurred with McGrath, 0. J.

Long, J.

(dissenting). This is an action of assumpsit commenced in justice’s court, and, after a trial there, appealed to the circuit, where, on a trial before a jury, the plaintiffs had verdict and judgment.

The declaration alleges substantially that the plaintiffs were the owners of certain lands and premises in the declaration described, and that the defendant, in consideration that they would sell and convey to him the said premises, then and there undertook, promised, and agreed with the plaintiffs, among other things, to harvest and thresh one-third of the wheat then standing and growing upon 28 acres of said premises, -and sell the same for cash, and deduct from the amount received by him therefor the amount paid for the machine to thresh it, and to pay the balance of said moneys to plaintiffs; that plaintiffs, relying upon such promises and undertakings, conveyed by deed of warranty the premises to the defendant; and that, though the defendant did harvest and sell said wheat, he now refuses to pay said moneys to the plaintiffs. There was testimony tending to show the contract as alleged in the declaration. The court directed the jury that—

If this was simply a contract between the parties for the reservation of one-third of the wheat then growing upon the premises, with the understanding that that should not pass by the deed for any reason or for any purpose, then it could not be enforced in this suit. _ * * * But if, on the contrary, the agreement was, as claimed by the plaintiffs, that they should sell their farm for 83,600 and such additional amount as one-third of the wheat then growing on the premises should bring, * * * then the plaintiffs would be entitled to recover for the amount which that wheat sold for," etc.

This charge raises the only question which will be considered.

It is well settled that, as between the grantor and grantee, growing crops are a part and parcel of the land, and pass, by deed absolute in its terms, to the grantee. Vanderkarr v. Thompson, 19 Mich. 82; Tripp v. Hasceig, 20 Id. 254; Coman v. Thompson, 47 Id. 22. And it is equally well settled that the written instrument of sale of the lands cannot be changed or varied by parol evidence, and that a parol reservation of the wheat would be inoperative and void. But that is not the question here. The plaintiffs’ contention is that the consideration for the land could be shown by parol evidence, and that the money arising from the sale of the wheat was a part of the consideration.

The recital of a consideration in a deed is merely to give it effect as a conveyance, and for any other purpose parol evidence is admissible to show that it was actually more or less than the amount stated. Strohauer v. Voltz, 42 Mich. 444; Bowker v. Johnson, 17 Id. 42. The consideration for a deed may be shown by oral testimony to include chattels not mentioned therein. Dean v. Adams, 44 Mich. 117. The above case was an action of replevin for a mare and two cows. Plaintiff recovered in justice’s court, but on appeal to the circuit judgment was given for defendant. It appeared that plaintiff owned 80 acres of land and the personal property in question. Her husband (then living, but who died soon after) joined with her in an agreement by which the farm was to be conveyed to defendant, and he was to maintain plaintiff and her husband during their lives. To secure this, a bond was given, and also a mortgage on the farm. The condition of the bond was:

“Whereas, the said Jane Dean and the said Bobert Dean have this day conveyed to the said George W. Adams that lot of land known as the * * * in consideration of the support and maintenance of the said Jane and the said Bobert by the said George: Now the condition,” etc.

On the trial the defendant was allowed to show, against objection, that the animals were conveyed by plaintiff to defendant at the time of the giving of the deed, bond, and mortgage, and as a part of the same transaction, and that their value formed a part of the consideration for the undertaking to support the plaintiff and her husband; that, when the attorney came to read the papers as prepared, it was discovered that no mention had been made of the mare and cows; and that he then informed the parties that no writing for their transfer was necessary, and that an actual delivery would answer every purpose. The only question presented arose on the reception of this oral evidence. It was objected that in permitting it the court allowed to be introduced the oral statements made by the parties at the same time they entered into the writings, and authorized the proof of an item of consideration not recognized by the papers, and not in harmony with the recital in the bond. It was held that this evidence was properly allowed. This ‘Court said:

The recital that the consideration on which the plaintiff and her husband gave the deed was their support and maintenance was true. There is no statement that they gave nothing more than the farm. Neither is there any statement that the farm was the sole consideration for the ■support and maintenance. The recital assumed to state on what consideration the deed was founded, and was not intended to imply that nothing more was founded on the ■same consideration, or that Adams had no other consideration than the farm for his undertaking. Hence there was no inconsistency between the papers and the oral ■evidence. The inquiry was directed to show the actual ingredients of the consideration of the bond and mortgage, and there was nothing in the papers to exclude it."

It was said that the case appeared to fall under previous decisions; citing Doty v. Martin, 32 Mich. 462; Trevidick v. Mumford, 31 Id. 467; Bowker v. Johnson, 17 Id. 42; Strohauer v. Voltz, 42 Id. 444.

In the present case the title to the whole wheat passed to the defendant under the deed; but by the oral agreement made simultaneously with the deed, and as a part of the consideration for it, the defendant was to harvest the one-third of the wheat, sell it for cash, and pay the moneys over to the plaintiffs. How does this contradict the terms of the written instrument, or change or vary its terms? The whole particulars of the consideration were not expressed in the deed, and need not be, under the rule in the case above cited; and the deed does not imply that no other consideration was to be paid than the $3,600. There is no inconsistency whatever between the deed and the oral evidence. The mere fact that the agreement was made at the same time as the deed, and as a part of the same transaction, does not make it ineffectual. It could not well have been made at any other time. The title to the wheat was to pass under the deed, and one-third of it was then to be sold, and the money paid over as part of the consideration for the deed.

The case is plainly distinguishable from Vanderkarr v. Thompson, 19 Mich. 82, upon which counsel for defendant relies. In that case it was claimed that there was a parol reservation of the crop itself, which was then growing on the land. The title passed by the deed. Vanderkarr sold Thompson the land. The wheat growing on the land was' not mentioned in the contract, but Vanderkarr claimed that there was a parol reservation of it, and sought to-prove it on the trial. The evidence was rejected. What was said in the case had reference to that particular question, and under the facts above stated. It was said:

“We only hold that a parol contract, contemporaneous with the written contract, cannot be shown. A contract made at any other time stands on altogether a different footing.”

In the present case the crop is not claimed. It is as though the defendant had agreed to sell any other property which he owned, and pay over the proceeds as a part of the consideration, or to sell wheat growing on any other parcel of land, and pay over the proceeds. If the oral agreement had been made with reference to wheat growing on other land, it must be conceded that it would have been enforceable, under the rule in Bean v. Adams, supra. But the defendant owned the wheat on this land at the delivery of the deed, the same as he owned it on his other land not conveyed to him by this deed. It is said that this is only another way of avoiding the statute of frauds. We do not regard it as such. It is but carrying out an agreement not made void by the statute. It is not the •sale of an interest in lands. Neither is it an agreement, as we have seen, which varies or changes the terms of the written contract.

Judgment should be affirmed.

Montgomery, J., concurred with Long, J,


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    Catherine M. Fillmore v. The Great Camp of the Knights of the Maccabees for Michigan et al.

      Mutual benefit associations — Death claims — Exclusive jurisdiction of local tribunal — Public policy.

    A provision in the laws of a mutual benefit association that a tribunal created thereby shall have power to pass upon all death claims, which decision shall be final, and bar any suit at law or in equity, does not so far contravene public policy as to permit members who contract with reference to it, or their beneficiaries, to seek relief in the State courts, rather than in those of the order; citing Van Pouclce v. Society, 63 Mich. 378; Canfield v. Knights of Maccabees, 87 Id. 626; Hem-! beau v. Knights of Maccabees, 101 Id. 161.

      Appeal from Washtenaw. (Kinne, J.)
    Argued October 4, 1894.
    Decided January 4, 1895.
    Bill to set aside a resolution expelling complainant's husband from defendant's order, and to compel the payment of an endowment certificate. Defendants appeal.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      Thompson, Harriman é Thompson, for complainant.

      McDonell é Hall, for defendants.
   Hooker, J.

The complainant claims to be entitled to the endowment benefits of a widow of a deceased member of the defendant order. In her bill she prays, in substance, that the executive committee of the order be required to set aside and annul a resolution and order made by them, before her husband's death, expelling him from the order; that they notify the local tent of such order, and that said local tent be required, upon said notice, to erase and annul any entry upon their records indicating such expulsion; and that said executive committee be decreed to audit and allow to her $2,000 upon an endowment certificate held by her, and the defendant order required to make an assessment upon the members of the order to pay the same.

The facts in the case are, in brief, as follows: Complainant's husband joined the order in March, 1885. At the time that he joined, the by-laws provided that no person engaged, either as principal, agent, or servant, in the sale of spirituous or intoxicating liquors as a beverage, could be admitted. Subsequently, in the year 1892, a bylaw was passed providing that—

“A member who shall hereafter engage, either as principal, agent, or servant, in the manufacture or sale of spirituous or malt liquors as a beverage, shall thereby forfeit his membership in the order, and all rights and benefits thereof; and no money shall be accepted from him by any officer of the tent for dues and assessments. No trial shall be necessary in such cases where the fact is admitted.”

Afterwards complainant’s husband became the owner of stock to the amount of $5,000 in a brewery which manufactured lager beer, and action was taken to expel him. He subsequently paid one assessment, but was afterwards, notified that it could not be treated as such, and would be-paid back upon demand. It was not forwarded to the Great Camp. No steps were taken to appeal from the action of' the order, and the husband soon died. The complainant applied for blank proofs of death, and was informed by one of defendant’s officers that they would not dispute her husband’s death, but that, inasmuch as he had engaged in a prohibited business, the claim had no value. This suit was then commenced.

The first question to be considered is the complainant’s, right to relief in this proceeding. The basis of her claim is the endowment certificate, which is as follows:

“ENDOWMENT CERTIFICATE.

“ This certifies that Sir Knight Ariel H. Fillmore is a. member of Arbor Tent No. 296, located at Ann Arbor, Michigan, and that, in accordance with and under the provisions of the laws governing the order, he is entitled to receive one assessment on the membership, but not over in amount $2,000, as a benefit to Catherine M. Fillmore, his wife, upon satisfactory proof of his death, and the surrender of this certificate: Provided he shall have in every particular complied with the rules and regulations of the order; and in case of permanent and total disability, or upon reaching the age of 70 years, he will be entitled to receive annually thereafter one-tenth of said endowment, as provided in the laws of the order.”

By the terms of this, at her husband’s death she became entitled to receive from the order the sum of $2,000 upon certain conditions therein mentioned. They were: (1) Satisfactory proof of the death of her husband; (2) surrender of the certificate; (3) that he had in every particular complied with the regulations of the order.

Among the first allegations of her bill is that of compliance by her husband with all rules and regulations. This, if not admitted, raises a question of fact upon which her right to the fund depends, and this question of fact, defendant claims, cannot be tried in the State courts, but must be tried by the tribunals of the order, and that their decision is final. Section 83 of the rules and regulations of the order is cited as sustaining this contention. It is as follows:

The executive committee shall have power to pass on all death claims, and if, in their judgment, any such claim is not on its face a valid one, they shall notify the beneficiary or beneficiaries of the deceased member thereof, and give ‘them or their attorney an opportunity to appear before such committee within 60 days thereafter, and present such evidence as they may have to establish the justness of said claim; and the said committee shall try, hear, and decide upon the justness or validity of such claim, ■and such decision shall be binding on such claimant, unless an appeal is taken to the Great Camp. The notice ■of the appeal from the decision of the committee must be filed with the Great Record Keeper within 60 days thereafter. The decision of the Great Camp in all such cases shall be final, and no-suit in law or equity shall be commenced or maintained by any member or beneficiary against the Great Camp.”

The provisions of this section are broad. If the language means anything, it is that all who have death claims must submit them to the executive committee, and that their decision, or that of the Great Camp, if an appeal be taken, shall be final. The contention of complainant’s counsel — that this section means that if the beneficiary sees fit to submit a claim to the tribunals of the order the decision is final, but if she does not choose to do so the courts have jurisdiction, which is equivalent to saying -that a beneficiary may appeal to either, at her option— does violence to the language. The section gives power to the executive committee to pass upon all death claims, in express language. If they question the validity thereof, they shall notify the beneficiary, and give an opportunity to be heard. This was done in this case, or, if it can be contended that it was not regularly done, the right of a hearing remains under this section.

It is claimed, however, that this section cannot be literally construed, because it is opposed to public policy that a citizen should be denied the privilege of the courts; and the case appears to have turned upon this point in the cir■cuit court. This question, as applied to mutual benefit Associations, is not a new one in this State. In the case of Van Poucke v. Society, 63 Mich. 378, it was held that a by-law which provided for a sick committee, whose duty it was to investigate and determine whether a member was entitled to a sick benefit, which decision was to be final, and said committee to be the sole deciders of the question, was a valid by-law. It is unnecessary to repeat the reasoning of the opinion. There would seem to be no reason why such a by-law could not as well be made applicable to a death benefit as a sick benefit. The beneficiary in the former case would be as much bound by the contract of her husband that she should observe the by-law as the ■ sick member that he would do so. Canfield v. Knights of Maccabees, 87 Mich. 628. The question came up again in the - case of Canfield v. Knights of Maccabees, cited above. 'This case arose over a death benefit, and this identical section 83 was involved. It differs from the case before us in this respect, viz., that the widow presented her claim to the committee, and afterwards appealed to the Great Camp, where the claim was disallowed, and, as in the former case, assumpsit was brought. In this case the question of fact, i. e., whether the husband had complied with the constitution and rules of the order, was involved. As in the former case, the by-law was held valid, and plaintiff was not permitted to recover. The question and this section were again passed upon in the recent case of Hembeau v. Knights of Maccabees, 101 Mich. 161, and were elaborately discussed by Mr. Justice Montgomery, and authorities cited. We must consider it as settled that the section referred to is valid, and does not so far contravene public policy as to permit parties who contract with reference to it, or their privies, to seek relief in the State courts, rather than in those of the order.

The bill alleges fraud upon the part of the order’, and it is further contended that complainant's case had been prejudged, and that these were sufficient reasons to entitle her to relief in equity. As to the question of fraud, we may pass it with the remark that the evidence shows no bad faith on the part of the order or committee. There is no reason to doubt the honest belief of the officers" that, under the by-law, the purchase of the brewery stock worked a forfeiture of the benefit. And unless we are to hold that the beneficiary of every expelled member is absolved from the obligation of this by-law, upon the ground that her claim is prejudged, there is no force in the latter contention. The by-law contemplates that beneficiaries will appear and prosecute their claims before the executive committee only in cases where the claims have been so far prejudged by the committee that they-have concluded that the claims are invalid. In other cases there is no necessity for a hearing, for the benefits are paid. If not satisfied with the decision of the committee, the case may go before the order itself, the Great Camp, which, presumably at least, will be disposed to do justice. The Great Camp had taken no action in this matter. The most that can be said is that the Great Commander, upon request of Fillmore's local tent, made a ruling upon the question, whereupon the local tent undertook to expel Fillmore, and later the executive committee notified complainant that, in their judgment, the claim was invalid. There is nothing here to disqualify the Great Camp. We think that the complainant should have prosecuted her claim before the tribunals of - the order, in accordance with the contract made by her husband when he became a member.

The decree of the circuit court will be reversed, and the bill of complaint dismissed, with costs.

Grant and Montgomery, JJ., concurred. McGrath, 0. J., and Long, J., did not sit.


text:
    The People v. Catherine J. Ketchum.

      Criminal law — Obscene pictures — Negatives—Circulation—Intent.
    1. A negative is a picture, within the meaning of How. Stat. § 9289, which makes it an offense for any person to procure any obscene picture for the purpose of sale, exhibition, loan, or circulation.

    2. Sitting- for the negative is procuring it, within the meaning of said statute.
    8. Respondent was informed against under How. Stat. § 9289, for procuring a certain obscene picture of herself for the purpose of exhibition, loan, and circulation. The evidence failed to show that respondent did more than to sit for the negative from which the photograph was produced, and this fact was only shown by proof that the negative was found in the possession of photographers, together with negatives made by them of her residence. And it is held that the court should have directed a verdict of not guilty.
    Exceptions before judgment from Ingham. (Person, J.)
    Argued October 25, 1894.
    Decided January 4, 1895.
    Eespondent was convicted of having procured an obscene picture of herself for the purpose of exhibition, loan, and circulation.
    Conviction set aside, and new trial ordered.
    The facts are stated in the opinion.

      William A. Fraser and Jason FI, Nichols, for respondent.

      A. A. Ellis, Attorney General, and L. B. Gardner, Prosecuting Attorney, for the people.

       For a consideration of the unlawfulness of obscene and indecent publications, including pictures, see note to In re Worthington Co., 24 L. R. A. 110.

   Hooker, J.

Defendant was convicted under an information which charged her with having procured a certain obscene picture of herself for the purpose of exhibition, loan, and circulation. Counsel for the people claim that the evidence shows that the defendant employed two itinerant photographers to make negatives of her residence; that subsequently these negatives were found among the effects of said photographers, and that Exhibit A was also found at the same time and place. Exhibit A was a negative of a woman in a practically nude condition, and is claimed to be a negative of the person of the defendant. Exhibit B was a photograph made from this negative by direction of the prosecuting attorney or sheriff. A witness named Cole testified that he saw a picture identically like Exhibit B in Mohr’s cigar ' store. There was no evidence that any photograph was made from the negative, except that made by the officer’s direction, unless the picture described by Cole was such. There was testimony tending to show that the photographers did some work upon nude fancy pictures for Mohr’s saloon. The court instructed the jury, in substance, that the negative is a picture, within the meaning of the law; that, if the defendant voluntarily sat in a nude condition, to enable it to be taken, she assisted in obtaining it, and therefore procured it; and that an intention to circulate photographic prints from the negative would be an intention to circulate the picture, within the statute. He left the question of the intent with which it was procured to the jury.

We have no doubt that a negative is a picture. We think also that the court was right in holding that sitting for the negative was procuring the negative.

The purpose for which the picture was obtained is an essential element of the offense, and must be proved like any other element. There can be no presumption of a particular purpose; it must be a legitimate inference from the evidence. The facts that Wigle & Webb had the negative, and that Cole saw a picture printed from it, do not sufficiently prove it. The natural inference from these facts would be that she sat for a negative to obtain a picture or pictures for herself. While it may be admitted that the usual purpose of procuring photographs is exhibition to friends, it does not necessarily follow that such is the purpose. Nor is there any reason for thinking that she designed that Wigle & Webb should dispose of any to other persons. The purpose does not appear, unless from the fact that one was seen, or from the assumption that she expected or designed to give prints to her friends. There is nothing to show either. If there were testimony tending to show that she did exhibit or circulate the picture, we might legitimately infer that she intended, when she procured it, to make such use of it. But in this case she is not shown to have done more than to sit for a negative, and that only appears from the fact that the negative was found in the possession of the photographers, with whom she had done business in relation to other pictures. Upon this record the court should have directed a verdict of not guilty.

Conviction set aside, and a new trial ordered.

The other Justices concurred.


author: McGrath, C. J. Hooker, J.

text:
    George Anderson, Trustee, etc., v. William S. Smith.

      Mortgage — What constitutes — Right of possession.

    Execution having been levied upon a leasehold owned by a co-partnership of which defendant was a member, he assigned his interest to the complainant by written instrument providing that the latter should purchase at the sale with funds to be provided in part by defendant, should acquire the legal title to the fee, and reconvey to the defendant, who was to remain in possession, upon the payment of the amount invested by complainant together with an additional sum for services and expenses, in default of which payment complainant should have the option to declare the contract void, and treat defendant as his tenant holding over without permission. A subsequent agreement provided that complainant’s lien was to be subject in part to that of a third party advancing moneys to the defendant whereby to make the purchase. Complainant, having complied with the terms of the contract, upon default of payment by defendant, instituted summary proceedings to recover possession. And it is held that the relation of mortgagor and mortgagee was created between the parties, and that the proceedings sought to be taken, being based upon the provisions of the contract itself, and not upon the legal title, cannot be maintained. .
    Errpr to Chippewa. (Steere, J.)
    Argued October 11, 1894.
    Decided January 4, 1895.
    Summary proceedings to recover possession of certain premises. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      George A. Cady (Barbour & Rexford, of counsel), for appellant.

      McMahon é Oren, for defendant.
   McGrath, C. J.

This is an appeal from proceedings -originating before a justice of the peace to recover possession of certain hotel property. The proceeding was commenced by Andrew McLellan, trustee, against William S. Smith and Charles R. Smith. McLellan and Charles ■R. Smith died pending the proceedings, and the canse was revived in the name of George Anderson, trustee, and prosecuted against William S. Smith, as survivor.

Defendant, Charles R. Smith, and George Kemp, prior to February 21, 1891, were copartners, carrying on the Iroquois Hotel at Sault Ste. Marie. They were in possession under a lease from one Swing, dated September 20, 1886, running for a term of 20 years from said last-named date, and containing an option for renewal for a like term. The lease also contained a provision by the terms ■of which Swing agreed to sell and convey the property to the lessees, on payment of the sum of $4,900, at any time within the term. On February 21, 1891, an agreement was entered into between the Smiths, parties of the first part, Levi L. Barbour and Dwight C. Rexford, parties of the second part, and Henry T. Phillips, party of the third part, which recited that, whereas the sheriff had, by virtue of several executions against the goods and chattels and real estate of the Smiths and Kemp, levied upon and taken the leasehold interest owned and held by said defendants under the lease, describing the same, which lease was on record, and also the contingent right of purchase of said premises, which right of purchase is owned by said defendants under the terms of said lease, and also all the right, title, and interest of said defendants in and to the property described in said lease, except their said leasehold interest, as hereinbefore stated,” — and then follows a description of the real estate.

“And whereas, the said parties of the first part are unable to pay said judgments, or to become the purchasers-at such sale, and desire the said parties of the second and third parts, or Andrew McLellan, of said Detroit, as; trustee for them, to become such purchasers;

“And whereas, said second and third parties, in the name of Andrew McLellan, as their trustee, have consented to become purchasers at such sale of the interests so levied upon, and also of the property situate and being on said real estate, and levied on and to be sold as chattels by virtue of one or more of said writs, provided all of said property and interests can be so purchased at a price satisfactory to said second and third parties;

“And whereas, said first parties, prior to said sale, intend to place in the hpmds of said second and third parties the sum of $10,000, or its equivalent, to be used by them in making such purchase as aforesaid, and, if not so made, to be returned to said first parties, after the payment by them of the expenses incurred by said second and third parties in connection therewith, and $150 for their trouble and services in said matter;

“And whereas, said second and third parties, if such purchase is made, as aforesaid, are each to invest half of the money required for that purpose, over and above the amount so as aforesaid to be placed in their hands by said first parties;

“And whereas, it is estimated that $20,000, or thereabouts, will be sufficient to pay the said judgments, and the expenses and costs of said sale, and the other indebtedness of the firm of Smith Bros. & Kemp, composed of first parties and said Kemp;

“ And whereas, such first parties now own, subject to said levies, two-thirds of the said property covered by said levies, and also certain personal property nOw at the Iroquois Hotel, situate on said real estate, which personal property was selected by them as their exemption from execution;

“And whereas, if such purchase is so made, said property, or part thereof, may be redeemed from said sale;

“ And whereas, if said purchase is so made, said first parties desire to purchase and occupy and use said property for hotel purposes and otherwise;

• “And whereas, if said purchase is so made, said second and third parties may incur expenses in connection therewith, and with said property and the business growing out of the same, and services of a legal character or otherwise may be required;

“And whereas, said second and third parties do not desire to so make such purchase unless they can become the owners in their own names or in the name of said Mc-Lellan, as their trustee, of the property so selected by said first parties as their exemption by law;

“And whereas, said second and third parties, if said purchase is so made, intend, as soon thereafter as practicable, to pay said P. F. Swing and Louisa W. Swing, or their assigns or grantees, the amount agreed upon by the terms of said lease for the purchase of said real estate, and to take a conveyance thereof, either in their own names or in the name of said McLellan, as their trustee:

“Now, therefore, in consideration of the foregoing premises and the agreements herein contained, this agreement witnesseth: That said first parties hereby sell, assign, transfer, and convey unto said Andrew McLellan, as trustee for said second and third parties, all their right, title, and interest in and to the property covered by said writs, including all the personal property of every nature and kind now in said hotel, and the property so as aforesaid selected by them as their exemption by law. If the above transfer shall be found, to be invalid by reason of a certain writ of injunction issued against said first parties, then the same shall become operative as soon as such disability is removed.

“That said second and third parties, using the said money, or its equivalent, so, as aforesaid, to be placed in their hands by said first parties, and using as much of their own money as they may be satisfied that they can safely invest as purchasers at said sale, agree to bid at said sale, and, if their bid is accepted, to take such title as may be given at such sale in the name of said McLellan, as their trustee; and they further agree, in consideration of the payments hereinafter mentioned, to be duly paid to such trustee by said first parties, that said trustee will sell, assign, transfer, and convey to said first parties all the right, title, and interest held by him in and to any and all of the property hereinbefore mentioned.

That said first parties hereby agree, in consideration thereof, to pay said Andrew McLellan, trustee aforesaid, the sum of $2,000, and, in addition thereto, the sum or sums said second and third parties shall have at any time invested in said property, and all expenses and sums of money whatsoever they may have at any time been put to or expended or laid out, in any way whatsoever, in connection with the said purchase and said property and any business arising therefrom, and such sum or sums as their services, rendered after such purchase, shall, in the opinion of said trustee, respectively be reasonably worth, which payment or payments are to be made at the bank of McLellan & Anderson, in said Detroit, as follows: The said sum of $2,000 on or before the 1st day of September, 1891, and the balance, whatever it may be, five equal installments, one of which is to be so paid at or before the expiration of each and every six months after the said 1st day of September, 1891, with interest at the rate of 10 per cent, per annum, payable semi-annually, on all sums that, by the terms hereof, may from time to time be owing and unpaid hereon; that said first parties also agree to pay all taxes and assessments, ordinary and extraordinary, that may have been or that may hereafter be taxed or assessed on said property, or any part thereof, until the sums to be paid by the terms hereof are fully paid as aforesaid. And it is also agreed by and between the parties to these presents that the said parties of the first part shall and will keep the buildings erected and to be erected upon 'the lands above described insured against loss and damage by fire by insurers; and in amount at least $20,000, approved by the said parties of the second and third part, or their said trustee, and assign the policy and certificates thereof to the said trustee. And that said trustee, on receiving such payment, at the time and in the manner above mentioned, shall execute and deliver to the said parties of the first part, or to their assigns, a bill of sale and conveyance, with covenants only against his own acts.

“It is mutually agreed between said parties that the said parties of the first part shall have possession of said premises and personal property, and shall keep the same in as good condition as they are at the date hereof, until the said sums shall be paid as aforesaid; and if said parties of the first part shall be in default in the payment of the said interest, or any part thereof, or of any installment of principal, or any part thereof, on any date whereon the same is made payable as above expressed, and should the same remain unpaid and in arrear for the space of 60 days, then and from thenceforth, — that is to say, after the lapse of the said 60 days, — the said parties of the second and third part, or their said trustee, shall immediately thereafter have the right to declare this contract void, and retain whatever may have been paid on it, and all improvements that may have been made on said premises, and may ■consider and treat the parties of the first part as the tenants of their said trustee holding over without permission, and may take immediate possession of the premises, and remove the parties of the first part therefrom.

“It is also agreed between the parties hereto that, in case said property, or any part thereof, shall be redeemed from said sale, so.much of such redemption money as said first parties would except „for this agreement be entitled to is hereby assigned to said second and third parties, as security for the performance of this agreement by said first parties, and that such money, if received by said second and third parties, is to be applied hereon.

“It is also agreed by and between the parties hereto that so much as said second and third parties shall bid for said property on the said sheriff's sale thereof in excess of $20,000 shall be returned by said sheriff to said second and third parties, except so much of said excess as said Kemp may be entitled to, as his share thereof on a partnership accounting; and also that said second and third parties shall not be required to pay on said sale, unless so required by said sheriff, such amount in excess of said $20,000 as said first parties would be entitled to, except for this agreement, on such accounting; also that said second parties are to be consulted and retained in case legal services are required in any way in Connection with said property and business.

“ In case said purchase is not so made, as aforesaid, at such sheriff's sale, this agreement is to be null and void, ■except that said second and third parties are to be paid their expenses, and $150 for their services and trouble as hereinbefore mentioned.

“It is hereby agreed by and between said second and third parties that they are each to contribute half of the mone3'' necessary to carry out their part of this contract, and that their said trustee is to account to them, share and share alike, according to their respective rights and interest.'”

This agreement was executed by the parties above named, Ida Smith joining in the execution thereof, and Andrew McLellan accepting the trust named. On May 4, 1891, Barbour, Rexford, and Phillips, parties of the first part, and John H. Bradish, party of the second part, and the Smiths, parties of the third part, entered into the following agreement:

Whereas, by an agreement bearing date February 21, 1891, between said first parties and said third parties, it is stipulated that said third parties shall place in the hands of said first parties the sum of $30,000, or its equivalent, to be used by said first parties, together with money of their own, in making the purchase of the Iroquois Hotel property therein mentioned, at the sheriff’s sale thereof under certain levies on executions;

And whereas, said second party has loaned said third parties $6,000 of the money so by them to be placed in the hands of the said first parties, and, to secure the payment of loan, said third parties have placed in the hands of said second party all their claims and demands of every nature and kind against one George Kemp, of Sault Ste. Marie, consisting principally of a $4,000 claim under a certain written agreement signed by said Kemp, and of whatever balance may be found to be due and owing from said Kemp to said third parties, or either of them, under a partnership accounting between them and said Kemp,—

Witnesseth: 'That it is hereby mutually consented, agreed, and understood by and between the parties hereto-that after said third parties shall have paid to Andrew McLellan, trustee for said first parties, under said agreement of February 21, 1891, the $2,000 therein agreed by said third parties to be paid on or before the 1st day of September, 1891, and also shall have paid to said trustee the further sum of $10,000 and interest thereon, according to the terms of said agreement of February 21, 1891, then, and not before, said trustee shall pay to said second party, of the moneys paid to him by said third parties under said agreement, over and above the sums above mentioned, a sufficient sum or sums to fully satisfy the unpaid part of .said indebtedness owing to said second party from said third parties, and that, upon full payment of said indebtedness, said second party shall transfer and assign to said trustee all of said securities, if any, remaining in his hands, to be held by said trustee as further security for the performance by said third parties of their said agreement of February 21, 1891.

“ It is further mutually agreed that said trustee shall hold the title to said Iroquois Hotel property, so called, including both real and personal, leasehold or otherwise, this day sold under said levies and executions, in trust and subject to a lien of $6,000 for 'the payment of said indebtedness in favor of said second party, which said $6,000 is itself, however, to be subject to the prior lien of $12,000, hereinbefore mentioned, on said property, in favor ■of said first parties, anything in said agreement of February 21, 1891, to the contrary hereof notwithstanding. .

“It is further hereby understood and provided that this agreement shall in no wise be construed to alter or affect the rights of said first parties under said agreement of February 21, 1891, except as to the time in which they shall receive the balance owing them, or their trustee, from said third parties.

“ It is further hereby mutually understood and provided that this agreement is not to be construed so as to preclude said third parties from paying the said indebtedness to said second party direct at any time they may desire so to do.”

On April 23, 1892, Barbour & Rexford wrote to the ■Smiths as follows:

“Yours of the 22nd inst. received. In reply, we make the following proposition: Our firm will furnish half of the money (if Mr. Henry T. Phillips will furnish half) necessary to buy the right of redemption of the Hotel Iroquois propeity from the sheriff’s sale on execution to Andrew McLellan, trustee, on the receiver’s sale thereof on Tuesday next, provided the total bid shall not exceed $9,000, provided you, Smith Bros., shall assign to us in ■advance of such sale, as security, half of your share of the moneys that shall be bid and paid on such sale; the bid and purchase to be in the names of Levi L. Barbour and Dwight C. Rexford and Henry T. Phillips. Upon full performance of tbe contract now existing between you and Mr. Phillips and us in reference to said property, which contract, by the acceptance of this proposition, is in noway or manner to be affected, altered, or waived, we will convey to you, by quitclaim deed, the interest we may so-acquire at such receiver’s sale upon payment to us, within one year from the date of full performance of the contract above mentioned, of half of the amount of the total bid at said receiver’s sale, and of all expenses, if any, together with a sum equal to 10 per cent, per annum computed on all sums remaining unpaid, and also, further, the additional sum of $500. _ In case said Phillips and we do not become the purchasers at such sale by reason of a bid exceeding $9,000, we are to be paid $100.”

Appended to said letter, the Smiths signified their acceptance of its terms as follows:

“We hereby accept the foregoing proposition contained in letter dated April 23, 1892, consisting of this and another sheet of paper, and agree to faithfully and promptly perform our part of the contract thus made. We hereby assign to Barbour & Bexford, as security for the performance by us of said contract, half of our share of the moneys that shall be bid and paid on the receiver’s sale mentioned in said letter.”

The circuit judge found that on May 4, 1891, Barbour, Bexford, and Phillips purchased at sheriff’s sale, in the name of Andrew McLellan, as their trustee, the leasehold interest, the contingent right of purchase, and all the interest of the Smiths and Kemp in and to the hotel property for $17,021.08, and all the interest of said Smiths and Kemp, in the personal property for $4,000, and that on said date a sheriff’s deed was executed and delivered to McLellan; that on May 2, 1892, the right of Smith Bros, and Kemp to redeem from sheriff’s sale was sold by the receiver of Smith Bros. & Kemp, duly appointed, for $1,100; that on October 22, 1892, the interest of Swing in the hotel property was conveyed to Andrew McLellan, as trustee, in consideration of the sum of $4,950.35; that Barbour & Bexford and Phillips, in addition to the sum of $10,000 received from the Smiths,- had invested and paid out in connection with said matter the sum of $17,-380; that the Smiths had made two payments, aggregating $4,700, and there were payments due from them of about. $17,000; that on December 27, 1893, the Smiths were in. default in payment of principal and interest, and had been, for 60 days; and that on that date notice to quit the premises was served upon the Smiths. The court found, as a, matter of law, that the relation between plaintiff and de-' fendant, under the agreement, is that of mortgagor and mortgagee, and therefore that said plaintiff was not entitled to recover in this action.

Clearly, under all the authorities, the written instrument dated February 21, 1891, taken in connection with the agreement dated May 4, 1891, must be construed as a conveyance to the trustee as security for advances which were to be made by Barbour, Bexford, and Phillips. But it is urged that the trustee acquired the legal title through the sheriff, the receiver, and Swing; that the defeasance does not run from the grantors in the conveyances by which the trustee acquired the legal title, and therefore, if defendant has any remedy, it is not at law, but in equity. In the present case, however, the origin of the trustee’s title was the instrument of date February 21, 1891. The Smiths were in possession of the property, and had evidently constructed the hotel upon it. The agreement clearly regarded them as having an interest in 'the real estate, and by it that interest was conveyed. It conveyed property interests that were the subject of -mortgage. It anticipated an election under the terms of the agreement, and the acquirement of the legal title. It became operative as each advance was made, and extended the lien created by it to the title thus acquired. The court finds that the interest in the real estate sold at sheriff’s sale for over $17,000, and the personal property for $4,000. That agreement in and of itself gives character to the title acquired in pursuance of its terms. Plaintiff is proceeding under it. The relation was created and fixed by it. Purchases made under and* in pursuance of its terms must be treated as having been made for the benefit of the cestui que trust or mortgagor, and the trustee cannot set up the title thus acquired to deprive defendant of his rights under that instrument. The question here is whether the trustee, whose relation is clearly defined in the instrument under which he is proceeding, is entitled to the remedy which he has chosen. He has, in pursuance of the agreement, purchased these outstanding titles, and now invokes their aid to support proceedings, not in ejectment, dependent upon the title thus acquired, but to recover possession by virtue of the terms of the agreement, and such as he would be entitled to take only -in case the instrument were a lease, or upon default in case of an agreement for a sale •on condition. Dwight v. Cutler, 3 Mich. 566, and note.

The judgment is therefore affirmed.

Long and Montgomery, JJ., concurred with McGrath, 0. J.

Hooker, J.

Two men named Smith, together with one Kemp, owned a leasehold in certain premises. Complications arose which led to a written agreement between the Smiths, Barbour & Kexford, copartners, and one Phillips. Subsequently, one Anderson, in the capacity of trustee, began summary proceedings before a justice of the peace against the Smiths, who were in exclusive possession of the premises. The case found its way to the circuit court from whose judgment the complainant appeals.

The claim of the complainant is that he is the legal owner of the leasehold. The defendants assert they are the legal owners, and that he is merely a mortgagee, so far as the leasehold is concerned, and that he has not the right of possession. Complainant and defendants depend upon a written contract, known in the record as “Exhibit B,” to sustain their respective contentions, defendants claiming it to be a mortgage, as already stated, and complainant contending that it is a land contract merely. The matter is complicated by the fact that the title to the leasehold interest owned by Kemp was not covered by the assignment by the Smiths of their interest, contained' in Exhibit B, and it was included in the purchase by the complainant at the sheriff’s sale where the interest of the Smiths and Kemp was sold. It goes without saying that, if this were a mortgage merely, the title did not pass to the complainant, and that no tenancy could •exist, and therefore summary proceedings could not be maintained. On the other hand, if the defendants were in possession of the land under an executory contract for its purchase, and were holding over contrary to the provisions of such contract, that remedy would be a proper •one. This seems to have resolved itself into a question of rights under the condition of affairs stated in and created by the contract, i. e., practically a question of title. By the recitals and provisions of the agreement it appeared:

1. That the two Smiths and Kemp were the legal owners of the leasehold.

2. That it was levied upon by virtue of an execution against them all.

3. That the Smiths then assigned their interest to complainant, upon certain undertakings mentioned in the -contract.

4. That Anderson subsequently purchased the interest levied upon, including Kemp’s.

5. That, upon certain payments being made by the Smiths, complainant was to sell and convey the entire leasehold to them.

It is unnecessary, for the present purpose, to allude to the other provisions of the contract, or the extraneous evidence which might throw light upon this agreement in a court of equity. Enough appears to show that the Smiths were not in a situation to mortgage more than an undivided two-thirds, and that they did not profess to do so. It is also apparent that the Kemp interest was acquired by complainant at the execution sale* which wbnld give room for the contention that he and the Smiths had become tenants in common of the leasehold, and that, as to that at least, the writing must be treated as an executory contract of sale. It is contended that this was purchased under circumstances and conditions which would justify the holding that this interest was recognized as a mortgage interest merely, and, if not, there may be room for the claim that it was purchased to be held in trust for the defendants to the same extent that the other two-thirds is claimed to be held. Again, there is room for the complainant’s contention that this writing shows on its face that the parties intended that the complainant should become the absolute owner of the entire leasehold, and sell it to the Smiths, which may have been their only available method of acquiring Kemp’s title, especially if it be true, as asserted, that Kemp had commenced proceedings for an accounting and a receiver, claiming that the Smiths were largely his debtors in the copartnership affairs. White & T. Lead. Cas. Eq. (4th Amer. ed.) 1954, et seq.; Cornell v. Hall, 22 Mich. 377. It is obvious that here is a bona fide contest over a question of title, which could not be tried in summary proceedings. See Butler v. Bertrand, 97 Mich. 59, where the authorities are collected. The circuit court should have dismissed the proceedings when this became apparent.

I therefore concur in an affirmance of the judgment.

Grant, J., did not sit.


author: Long, J.

text:
    The People v. William Repke.

      Criminal law — Murder—Degree—Duress—Instructions to jury.

      . Where, under the proofs in a homicide case, the killing is shown to have been committed by lying in wait, and by a preconceived plan willfully and deliberately to take life, it is not error to instruct the jury that, if the respondent is guilty at all, he is guilty of murder in the first degree.
    8. A threat to take one’s life, made three days before the perpetration of a murder, unless the party threatened aids in the commission of the crime, will not excuse him from liability for aiding and assisting in the murder.
    8. It is not error to instruct the jury in a homicide case that if they find that, at the time of the killing, the respondent actively participated, that he aided, either by being present on guard, or by counseling and encouraging others to commit the crime while thus present with that intent, he is equally guilty with those who inflicted the mortal wound.
    Error to -Alpena. (Kelley, J.)
    Argued October 25, 1894.
    Decided January 4, 1895.
    Eespondent was convicted of murder in the first degree, and sentenced to imprisonment in the State prison for life.
    Judgment affirmed.
    The facts are stated in the opinion.

      J. D. Turnbull, for respondent.

      A. A. Ellis, Attorney General, and James McNamara, Prosecuting Attorney, for the people.
   Long, J.

Eespondent was convicted in the Alpena circuit of the crime of murder in the first degree, and sentenced to imprisonment in the State prison for life.

It appears from the uncontradicted evidence that on August 23, 1875, 12 persons, among whom was respondent, met at a place known as “Eeinke’s Hill," about 4£ miles from Rogers City, in Presque Isle county; and after talking over the object of the meeting, and taking an oath to keep secret what should take place, they went together to Rogers City, arriving there in the evening, and shot through the window and killed Albert Molitor, while he was engaged in his business in the office connected with his store. The undisputed evidence shows that it was the understanding before they left Reinke’s Hill that they should go and kill Molitor. That was their business to Rogers City that night. The evidence as to the murder, the manner of killing, and the circumstances surrounding the same were uncontradicted.

The respondent himself took the stand, and testified that he was present, and saw Molitor shot, and that he was shot through the window on the night in question by some of the party with whom the respondent visited Rogers City, but that he did not do the shooting himself. A number of the persons who were present and assisted more or less in the murder testified that the respondent was one of the ringleaders in the conspiracy to take the life of Molitor. Stephen Reiger testified that respondent came to him, and got him to join the enterprise on the theory that they were going to kill' a bear; and that he was not acquainted with the facts of the object of the meeting until he had actually arrived at the hill on the evening the murder was committed. Frederick Sorgenfrei testified that respondent went through the township and got the men to meet at the hill. Ferdinand Bruder testifled that respondent came to his house on the day they met at the hill, and told him, if he did not go, he would be killed. The respondent testified that, when near Rogers City, Barabas, one of the party, went forward to see if he could kill Molitor alone; that they heard a shot, and then there was some talk about going, but Grossman said they would have to stay, because maybe they had got Barabas, and, if so, they would have to go and get him free; that Barabas came back, and, having fired off his gun while he was gone, had to reload it there, in the presence of respondent and the others. Eespondent then says:

“He load his gun, and then we go along, and as we come along he tell us Molitor was there in the office, and we go right around on the office window. Where every man is going from that time I can’t say. Them four men, Jacobs, Barabas, Fuhrmann, and Grossman, go right from the window close on the corner of the window, and stand up on the window, right short. I was standing there by the telegraph poles and fence posts, and all kinds of wood laying there. * * * Then, at once, Molitor come out of little room, out of other little room, and had a big book on his hand, on his arm. And, so as he come out of that little room out, them four men raised up his gun onto the window, and Molitor go with the book, and lay the book, the clerk sitting there, he lay the book to the table, and, so as he put the book on this table, that minute he shooting. Molitor don’t sit down at all. Just he lay the book down, that minute Molitor fall down. Molitor holler up, ‘Oh, God!’ I turned around and run away.”

■ The evidence shows that Molitor was shot with several buckshot, coming from different angles, in his side and# back, having been sitting or standing with his side to the window when the guns were discharged. A young man by the name of Sullivan, a clerk in Molitor’s employ, was shot at the same time, and, some of the witnesses testify, by the respondent.

The theory of the people was that respondent was one of the willing participants in this murder. The respondent, on the other hand, contended that he assisted in the killing of Molitor, or went with the party, for the purpose of protecting himself, so that he might afterwards be unmolested, or, as claimed by his counsel, because he was) compelled by threats to go. Eespondent testified as to the', threats, substantially, that the first his attention was called to the killing of Molitor was some three days before the crime was committed. He says that Banks came to him, and told him that Hoeft and Molitor were having a lawsuit; that, if Molitor lived, he would beat Hoeft, and in such case all the farmers would have to run away; that Molitor should be shot. In answer to this he says he told Banks:

“ I can’t go along with you to shoot a man. Mine heart can’t do that to shoot a dog. I got a bad dog. I got to ask mine neighbor to come and shoot him. I can’t do it myself.” '

To this Banks replied that they had four men to do the shooting, and that twelve men would make a jury, and what “twelve men do everybody got to follow.” Respondent replied, “I got no gun;” and Banks said: “I furnish you some things for that time, and you got to go. I told you about that now; yon got to come.” Respondent said he did not like to go, when Banks answered: “Well, you got to go if you like to live. If you back, out, if yon donjt come, maybe we shoot you on the same night, and you been shot the first night if we can get you.” Respondent says that at the time Banks told him to come to the hill on the third night following, and he asked who would be there, and Banks said: “You don’t need to know that. You come on that place where I tell you. You find all the man come together there, and you will find out who is there.” He says, further, that, after Banks wrent away, he went into the house, and told his wife what Banks had said. She cried, and he told her he would not go. But she said: “Well, maybe you could go, and you do nothing, and nobody could do you nothing.” And he said he would go to the hill, and find out who would go. He joined the party, made no protest, took the revolver furnished him, and went with them. He drank with the rest on the way down. He says that, when Banks gave him the revolver, he told him it would come handy when he went into the store to fight. It also appears from the respondent’s testimony that, some time after the murder, Hoeft gave him $100 not to go away out of the country, as Hoeft was afraid that he (respondent) would talk about it. He was asked if Banks told him that Molitor and Hoeft had a lawsuit.

“A. Tes.

Q. And that, if Molitor lived, he would win the case?

“A. Yes.

“ Q. And you wanted to kill him so he could not testify in the case?

“A. That is what he told me.

“ Q. That is the way yon understood it?

“A. Yes.

“ Q. Really what you were down there for to kill Molitor, to help those folks, was simply to help Hoeft out?

“A. Yes.

“ Q. You went along to protect them, to keep them if they went in, anybody jumped onto them, — get them olear?

A. Yes.

“ Q. That was what you agreed to do? That is what you went for?

“A. Yes.”

He was also asked:

Mr. Repke, what made you go that night with those people down to Rogers City to murder Molitor? What forced you to do this?

“A. I was scared for mine living. If I don’t go to kill Molitor, if I don’t stay, I should be killed.

“Q. You were afraid they would kill you if you didn’t do this?

“A. Yes.

“Q. Is that the reason you went and took part?

“A. Yes.

“Q. Would you have gone if you had not been afraid?

“A. If I was not afraid, I would not go. Molitor was mine best friend.”

This is substantially all the testimony bearing upon the questions raised in the case. It appears from this that the threats, if any were made, were made by Banks three ," days before the murder. No one threatened him at the !• hill. No one but Banks told him. he must go. Banks was not at the hill, and it is not claimed that Banks was. present at the murder. The substance of the threats, as .claimed by respondent, was that, three days before the : murder, Banks told him that, if he did not go, when they j caught him they would kill him.

At the close of the testimony, the respondent’s counsel asked the court to instruct the jury as follows:

1. That in order to find the defendant guilty, in this case, of murder, the jury must find that the defendant, at the time of the transaction and killing, was a free agent.

2. If the jury find that the defendant was coerced into taking part in this transaction, then he is not guilty of murder.

“3. In order to convict defendant of murder, the jury must find that defendant either aided, abetted, or counseled the killing of Albert Molitor.

4. The fact of defendant going with these other parties that killed Albert Molitor at Rogers City, and meeting with them at Reinke’s Hill, or being present at the shooting, is not enough to convict defendant of murder. In order to make defendant guilty of murder, the jury must, find that the defendant did' certainly aid, abet, or counsel the killing of Albert Molitor, and this must be determined from all the evidence and all the circumstances surrounding this transaction, and the jury must find this beyond a. reasonable doubt.

“ 5. There is no evidence in this case that will warrant the jury in finding that defendant fired the shot that killed Molitor. Therefore the jury must find that the defendant voluntarily accompanied or assisted those who. did the killing. Unless the jury find this beyond a reasonable doubt, then they must acquit defendant.

“ 6. The jury must find beyond a reasonable doubt that defendant voluntarily united himself with those who did the killing in this case, and either aided, abetted, or committed the same. Unless the jury so find, they must acquit the defendant of murder.”

These requests were refused, except as given in the general charge. Upon the degree of the offense, the court charged:

“ If respondent is to be convicted at all, he must be convicted of murder in the first degree. There is no evidence in this case upon which a verdict of murder in the second degree or any lesser grade of crime could be permitted to rest. * * * If you can reconcile his conduct, his actions, consistent with any theory of innocence, he is entitled to the benefit of such theory; and it is your duty to give him the benefit of the reasonable doubt."

The court also gave the jury the definition of “ murder," and the degrees into which the statute divides it, and what would' constitute murder in the first degree under the statute, and directed them that,—

“Before you can convict this respondent of murder in the first degree, it is necessary that the people should have convinced your minds that respondent, on the night in question, either inflicted the mortal wound, or that he was present, aiding, assisting, or in some manner abetting the commission of this offense. The burden is upon the people to convince your minds that he was there, participating, aiding, and assisting in the commission of this crime.”

The jury were also directed fairly upon the question of reasonable doubt, and that, if there existed such a doubt, they must acquit.

Upon the question of respondent’s being coerced into going, the court charged the jury as follows:

“ The law will not excuse a criminal act because committed under influence of fear, unless it clearly appears that such fears were founded on some reasonable ground. No duress will excuse from punishment, unless it be an act'üaUcompnlsion by the "u§g '"Of'"forSA The duress or compulsion must consist in such force' exercised towards the person as puts him in present fear of death or great bodily harm. Threats of futa2&_jnjury will not excuse. A threat to take one’s life at some future time, unless the person so threatened commit or aid in the commission of a felony, is quite insufficient to excuse the commission of a felony by the person so threatened. * * * No man, from fear of some future consequences to himself, has a right to make himself a party to the commission of the crime of murder; and I charge you in this case, gentlemen of the jury, that, under the testimony of Eepke and the evidence in this case, no such state of facts exists as to coercion or duress used as would justify Mr. Eepke in participating in the commission of this crime. A mere threat that, if he did not go at a future time and aid in the commission of the murder, he would be killed, would not be sufficient.”

The jury returned a verdict of guilty of murder in the first degree.

1. It is contended that the court was in error in directing the jury that, if they found respondent guilty, it must be of murder in the first degree. Section 9075, How. Stat., provides:

“All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree,” etc.

Section 9076 provides:

“All other kinds of murder shall be deemed murder of the second degree,” etc.

Section 9077 provides:

“The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.”

Section 9428 provides:

“Upon an indictment for any offense consisting of different degrees as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty -of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense.”

Section 28, art. 6, of the Constitution provides that—

“In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury,” etc.

The contention is that, under these provisions of the statute and Constitution, it was the exclusive right of the jury to determine the degree of the murder, and that, by the instruction given to them, the court determined the degree; and, if the court had this right, then, if the jury should fail to find the degree in their verdict, the court would have the right to fix it.

We quite agree with counsel that it was the duty of the jury to find the degree of the murder in their verdict. It was said in Tully v. People, 6 Mich. 273:

“The statute (Comp. Laws 1857, § 5713) is imperative that the jury in their verdict, or the court on plea of guilty, shall determine the degree of crime.”

The verdict rendered in that case simply found the respondent guilty in manner and form as charged in the indictment. The court sentenced respondent to imprisonment for life, "and the case was reversed in this Court for the above reason.

In People v. Hall, 48 Mich. 482, the information merely charged murder, without charging in what way it was committed, or in what degree, and it was said that—

“ Under the statute, the jury must find the degree of the offense, and it cannot be treated as murder in the first degree unless expressly so found.”

In People v. Potter, 5 Mich. 8, it was said:

■ “ The duty of ascertaining the degree of the crime is peremptorily imposed upon the jury.”

But in the present case, under the proofs, if the respondent was guilty at all, it was of murder of the first degree, as it was committed by lying in wait, and by a preconceived plan willfully and deliberately to take life. There is no dispute about it. There is no contention that it was accidental, or that it was committed in self-defense. There is no fact or circumstance that would reduce it below the first degree. The murder was committed; the respondent testified to it himself; and it was committed in the manner and form pointed out by the statute as constituting murder in the first degree. As was said in People v. Hall, supra:

“ Murder by poison, under the statute, is always murder in the first degree, and the jury should have been so charged.”

The error in that case was that the jury were not so charged, but were left by the charge to find the degree, and did not find it to be the first degree; but the court treated it as murder in the first degree, not only by so naming it, but also by inflicting the statutory punishment for that crime.

Under this same provision of the statute, murder by lying in wait is murder in the first degree, and it was the duty of the court so to charge. It was not the province of the jury to find a different degree of the offense under the facts shown, as it would have been a clear violation of this statute. In criminal as well as in civil cases it is the duty of the court to instruct the jury upon the law, and it is the duty of the jury to accept the ruling, and be guided by it. Hamilton v. People, 29 Mich. 173; People v. Mortimer, 48 Id. 37. But, as was said in the last case:

“It is; no doubt, in their power to disregard evidence, and to acquit persons whom they know to be guilty.”

The court in the present case did recognize this power, and expressly told the jury that they could acquit, but, if they found the respondent guilty at all, it must be for murder in the first degree. There was no question but that the murder was committed by lying in wait, and there is no question, under this statute, but that murder committed in this way is murder in the first degree. The Court said in People v. Murray, 72 Mich. 16:

“ Without any requests from counsel, it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are “to decide, and he should state to them fully the law applicable to the facts. Especially is this his duty in a criminal case.”

In Baker v. People, 40 Mich. 411, the court charged the jury that the verdict should be either guilty of murder in the first degree, or not guilty. It was said by this Court:

“There was no claim or pretense that the murder, if -committed, was perpetrated by means of poison or lying in wait. If there had, perhaps the charge given might have been proper. There were facts from which the jury might have found that it was a willful, deliberate, and premeditated killing; but this was a question for them to determine from all the evidence in the case. It may have been a sudden affray, or in self-defense that the fatal blow was struck; and, although the court may have been of ■opinion that such was not the case, yet it still remained a question for the jury to determine under all the facts, and they certainly may have found that the crime committed was not in the same degree as the court assumed.”

The Iowa statute is substantially like our own. It divides murder into two degrees, and provides that all murder which is perpetrated by means of poison or lying in wait, ■etc., is murder of the first degree. In State v. Johnson, 8 Iowa, 525, the trial court directed the jury that—

“The form of your verdict will be as follows, if you End the defendant guilty: £We, the jury, find the defendant guilty of murder in the first degree;5 or, if you find the defendant not guilty, you will say: ‘We find the defendant not guilty.555

This was held not to be error.

In Clark v. Com., 123 Penn. St. 555, it was held that when no controversy was made that, upon the evidence, the murder was perpetrated by lying in wait and to accomplish a robbery, it was not error to omit to instruct upon the law of voluntary manslaughter, and upon the power of the jury to find such verdict in the cause. The Pennsylvania statute is similar to our own.

In People v. Wright, 93 Cal. 564, it was held that an instruction that the defendant must be either convicted of the offense charged or acquitted is proper, when there is no evidence of any lesser offense, and the evidence shows that he is guilty of that charge or not at all. The offense charged in that case was mayhem. A similar holding was made by the same court in the case of People v. Barry, 90 Cal. 41, which was a charge of attempted robbery; and also in the case of People v. Madden, 76 Cal. 521, which was an assault with intent to commit the crime of murder. See, also, the following cases, holding that this rule applies-to trials for homicide: State v. Turlington, 102 Mo. 642; O’Brien v. Com., 89 Ky. 354; Jones v. State, 52 Ark. 345; State v. Munchrath, 78 Iowa, 268; McCoy v. State, 27 Tex. App. 415.

The verdict of the jury in the present case is in form that of murder in the first degree, and the direction of the court that they must so find, or acquit the respondent, was proper under the evidence. Any other instruction than this, under the facts and circumstances shown, would have been very improper, as there was no evidence warranting a different direction, and no circumstances which would lessen the degree. It was a willful, deliberate murder, perpetrated by lying in wait, and the statute itself fixes the degree. The charge was not in violation of the statute above quoted. Neither is it in violation of any constitutional right; as in People v. Richmond, 59 Mich. 570, it was said:

“Where all of the facts essential to a conviction are admitted, there is nothing for a jury to pass upon, and it is not error for the court to direct a verdict of guilty.”

The same doctrine was held by this Court in People v. Ackerman, 80 Mich. 588; People v. Neumann, 85 Id. 98.

%. It is next contended that the court erred in refusing the requests of counsel for respondent on the question of duress, and in directing the jury that no such state of facts existed as to coercion or duress used as would justify respondent in participating in the commission of'the crime. We think this charge warranted by the circumstances and / the testimony of the respondent himself. It would be a' strange rule that would permit one to escape punishment for the crime of murder upon the plea that, three days j before the crime was to be committed, he had been told < that he would himself be killed if he did not go and (' assist; and especially under the circumstances as detailed by respondent himself. The general rule upon the subject of duress as an excuse for crime is laid down in Stephen’s Digest of Criminal Law (article 31), as follows:

“ An act which, if done willingly, would make a person a principal in the second degree, or an aider and abettor in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because, during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him, or to do him grievous bodily harm, if he refuses; but threats of future injury, or the command of any one not the husband of the offender, do not excuse any offense.”

Lord Chief Justice Lee, in MacGrowther’s Case, 18 State Tr. 394, which was a case of treason, the defense being duress and compulsion, said:

“The only force that doth excuse is a force upon the person and present fear of death; and this force and fear must continue all the time the party remains with the rebels.”

Threats of future injury do not excuse any oflense. Whart. Cr. Law (9th ed.), § 94. The necessity which will excíise a man for breach of law must be instant and imminent. Bish. Cr. Law (7th ed.), § 352. We think the charge upon this subject was warranted by the evidence, and is fully sustained by the authorities.

By the sixth assignment of error, it is contended that the court charged, in substance, that the jury must find the respondent guilty of murder in the first degree. What the court did charge was:

“There is no such duress shown, and no such coercion shown, as would excuse him, if you find that he, at the time this murder was committed, and on that night, actively participated; that he met, went forward, aided, either by being there upon guard, or by counseling and encouraging, the commission of that crime. * * * If he was there for the purpose, intending to aid and encourage the commission of this crime, he would be equally guilty with the person or persons who inflicted the mortal wound.”

It was claimed by the prosecution, and some testimony was given tending to show the fact, that respondent actually fired upon the clerk. The charge was full and fair, and presented the respondent’s theory in all its phases, and protected every right to which he was entitled under the circumstances.

We have carefully examined the case, and are satisfied that respondent has had a fair and impartial trial; and the judgment must be affirmed.

The otfher Justices concurred.

       As bearing upon the construction of this section, respondent’s counsel cited Hall v. People, 47 Mich. 638; People v. Prague, 72 Id. 180; People v. Miller, 96 Id. 119; People v. Abbott, 97 Id. 484.

       See People v. Collison, 85 Mich. 105, holding that it is error for the court, under such circumstances, to direct the clerk to enter a verdict of guilty.


author: Montgomery, J.

text:
    The People v. Dibbie Harris.

      Criminal law — Preliminary examination — Waiver—Rape—Evidence — Conviction of lesser offense — Instructions to jury.

    1. By waiving a preliminary examination, and pleading not guilty to the information filed upon the return of the magistrate showing such waiver, a respondent waives the objection that no witnesses having knowledge of the facts were examined prior to the issuing of the warrant.
    2. It was a wise exercise of discretion to refuse to permit the respondent to withdraw his plea for the purpose of making a motion to quash, based upon said objection; it appearing that before the first trial, upon which the jury disagreed, a motion to quash was denied; that the request of the respondent, made during the same term of court, for leave to withdraw his plea for the purpose of renewing his motion to quash, was refused by the court; and that the second like request, the refusal of which is complained of, was made at the succeeding term of court, and after the people had prepared the case for trial.
    8. In a prosecution for having carnal knowledge of a girl under the age of 14 years, evidence that the respondent had had sexual intercourse with her on an occasion previous to that fixed as the one upon which the offense was committed is properly excluded.

    4. The testimony showed that either the complete offense was committed, or no offense at all, and the respondent’s, counsel adopted this view of the case, as evidenced by his requests to charge. And it is held that error cannot be assigned upon the failure of the court to instruct the jury that the respondent might be, convicted of assault, or assault with intent to commit the crime of rape.

    5. The circuit judge, in his charge, made no allusion to the fact that a quarrel had occurred between the respondent and the girl prior to the making by her of the complaint. And it is held that, in the absence of a request for such an instruction, the general charge of the court that “ the jury should carefully consider the testimony of the complaining witness, her appearance and manner of testifying, her age, and all other things bearing upon her testimony and credibility, and from her evidence and that of the respondent, and all of the evidence in the case, endeavor to arrive at a true and just verdict,” sufficiently protected the rights of the respondent.
    Error to St. Joseph. (Loveridge, J.)
    Submitted on briefs October 25, 1894.
    Decided January 4, 1895.
    Respondent was convicted of having carnal knowledge of a female child under the age of 14 years, and sentenced to imprisonment in the State prison for 15 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      William Sadler, for respondent.

      A. A. Ellis, Attorney General, and D, L. Akey, Prosecuting Attorney, for the people.

       See People v. Abbott, 97 Mich. 484, 486.

       See People v. Abbott, 97 Mich. 484; People v. Repke, 103 Id. 459.

   Montgomery, J.

Respondent was convicted of the offense of having carnal knowledge of a female child under 14 years of age.

It is assigned as error that the respondent had no proper preliminary examination, for the reason that it does not appear that the justice, before issuing the warrant, examined any witnesses who had knowledge of the facts, and that the complaint was made upon information and belief. On being brought before the justice, respondent waived examination, and on being arraigned in the circuit court, and called upon to plead to the information, interposed a plea of not guilty. This was a waiver of the objection now interposed. Washburn v. People, 10 Mich. 372; Morrissey v. People, 11 Id. 343; and People v. Williams, 93 Id. 623. And we think, under the circumstances of this case, it was a wise exercise of discretion to refuse to permit the respondent to withdraw his plea for the purpose of making a motion to quash, based upon the claim here made.

Error is assigned upon the refusal of the court to permit' the respondent to show by the complaining witness a statement that the respondent had had intercourse with her on an occasion previous to that fixed as the one upon which the offense was committed. The case is one in which the offense did not depend upon actual force. If the issue had been whether the complaining witness had consented to the intercourse, the testimony would have been clearly competent. But in a case where the consent of the prosecutrix affords no defense, we are unable to see how the fact that the parties had had previous intercourse would aid the respondent, or tend to weaken the testimony of the prosecutrix in any way.

Error is now assigned upon the charge of the court, upon the ground that the court omitted to state that the respondent might be convicted of a lesser offense than rape, as assault, or assault with intent to commit rape. We are cited, as sustaining this contention, to the cases of Hall v. People, 47 Mich. 636, and People v. Miller, 96 Id. 119. In the latter case the respondent was convicted of the offense of assault with intent to commit rape, and what was held was that this was within the charge of rape; and, this being so, it is clear that respondent could not complain of a conviction of a lesser offense than the full charge. But it was said, referring,to the case of Hall v.People, that in that case “the omission to charge the jury that the defendant might be found guilty of the lesser ofíense was held to be error.” We have examined the record in Hall v. People, and find the fact to be that, upon the trial of the case, it appeared that the complaining witness, when she first made the complaint, charged the respondent with assault with intent to commit rape, and not with the completed offense. The charge of the court left the jury to find that the respondent might be convicted of rape, or simply of an assault, but did not leave it open for them to find that he might be convicted of the intermediate offense of assault with intent to commit rape. The present case is clearly distinguishable from Hall v. People. In this case, if the testimony of the complaining witness is credited, there was no room for any middle ground. Either the complete offense of rape was committed, or no offense at all. This seems to have been the view of respondent’s counsel at the trial, for the first request to charge is that—

“ To constitute the offense here charged, actual penetration must be shown, and that this offense is easily made and hard to disprove; and if, from all the evidence in the case, you have in your mind a reasonable doubt of the guilt of the accused, you should acquit him.”

The request practically excluded the theory of; a possible conviction of the lesser offense, and it does not lie with the respondent to now complain that such theory was not put before the jury.

It is also objected that the charge made no allusion to the quarrel which occurred between the respondent and the complaining witness prior to the making of the complaint. No request to instruct the jury upon this subject was preferred, and, in the absence of this, we think the instruction of the court that “the jury should carefully consider the testimony of the complaining witness, her appearance and manner of testifying, her age, and all other things bearing upon her testimony and credibility, and from her evidence and that of the respondent, and all of the evidence in the case, endeavor to arrive at a true and just verdict,” sufficiently protected the rights of the respondent.

The other questions raised do not call for extended discussion.

We find no error in the record, and the judgment will be affirmed.

The other Justices concurred.

       After pleading not guilty to the information., a motion to quash was made, and denied, after which, and during the same term of court, the request of respondent for leave to withdraw said plea for the purpose of renewing the motion to quash was refused by the court. The case was tried, and the jury disagreed. At the next term of court the respondent renewed his request for leave to withdraw his plea and renew the motion to quash, and the court declined to grant the request, the people having prepared the case for trial. -t