text:
    LEATHERS v. CANFIELD.
    Brokers — Commissions.
    A broker whose services in negotiations leading up to a sale of timber are solely in the interest of the buyer, and against the interest of the seller, cannot recover a commission from the latter.
    Error to Kent; Grove, J.
    Submitted April 22, 1898.
    Decided June 7, 1898.

      Assumpsit by Don J. Leathers against John Canfield for commissions on a sale of timber land. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Butterfield & Keeney (Hanchett & Hanchett, of counsel), for appellant.

      McGarry & Nichols and Judkins & Perkins, for appellee.
   Long, J.

This action is brought to recover a commission of $30,000, which plaintiff claims was agreed to be paid to him by defendant for plaintiff’s services as a broker in procuring the purchase by the Thayer Lumber Company from defendant of 10,000 acres of pine land situated in Missaukee and Kalkaska counties. Plaintiff’s claim is that in June, 1895, he met Mr. Munroe, superintendent of the Thayer Lumber Company, at Muskegon, and arranged with him to open negotiations with defendant for the purchase of this tract of timber, and in pursuance of which certain correspondence was had with defendant. Defendant would not consent to put these lands into the market, and refused to give an option thereon, but stated in a letter of November 6, 1895, that he would not refuse an offer of $1,500,000. On November 14, 1895, plaintiff called on defendant at his place of business, and as to that interview testified:

“Mr. Canfield said (in speaking of this timber) that he had always intended it should be manufactured at Manistee, and he would prefer to sell it for less money to come to Manistee than to go to Muskegon, or anywhere else. I told him the price which he had always held it at was altogether too high, and these folks would be glad to look at it at a price they thought they could afford to buy it. Mr. Canfield said to me that he had been offered $1,200,000 or $1,225,000,— I am not positive which. I asked him if he would give me an option on it for 30 days at $1,350,000 for the Thayer Lumber Company to look it, or rather for my parties to look it; I guess I did not tell him the Thayer Lumber Company then. He said not; he would not give me an option in writing, but would withhold it from market for 30 days’ time in which the parties could have to go on and estimate it.”

The plaintiff further testified:

“ I asked him about commissions in case I found a purchaser for it, — in case my parties should take it after looking it. He said he had expected to pay a good commission to any one in case it was sold. I asked him what he called a good commission, and he said he thought $25,000 was a good, fair commission. I told him it was not enough for a deal of that kind at any such price. He said we would wait until they got through looking it to see whether they wanted, it or not, and then we probably would have no trouble in agreeing upon a commission. ”

Plaintiff testified that he had another interview with defendant on December 3d, in which he told defendant that his offer of $25,000 commission was not enough, and that he ought to have a commission of $32,500. He says in this interview he told defendant, “ I was getting a small commission from the other side.”

The Thayer Lumber Company completed the examination of the land, and on December 13th Mr. Munroe went with plaintiff to Manistee to see defendant. No arrangement was made in regard to the purchase, and the parties separated. Plaintiff says that on that day, after Mr. Munroe had gone, he again told defendant that he was getting a small commission from the other parties, — from Mr. Munroe. About the 3d of January following this last interview, the defendant was in Grand Rapids, and plaintiff sent for Mr. Munroe to meet him. Before Mr. Munroe came, plaintiff says he had a further talk with defendant about commissions, in which it was agreed between them that he should receive $30,000. At this meeting no arrangement was made for the sale of the land, as the parties could not agree upon the price.

It appears that before the time plaintiff met defendant at Manistee, and at which time he claims to have told defendant he was getting a small commission from Mr. Munroe, he had arranged with Munroe for a commission of $10,000. This agreement Munroe put in writing on December 11, 1895, as follows:

“Dear Sir: Confirming our verbal agreement of on or about the 22d ultimo, and our further conversation at Grand Rapids today, as requested by you, I write to say that if you negotiate with John Canfield the purchase by this company of the Canfield pine lands, so called, in Missaukee and Kalkaska counties, amounting to about 10,000 acres, we are to pay you $10,000, which will be in full of your commission and services and expenses in the matter. Otherwise we are under no obligations to you on account of any services you may have rendered or expenses incurred; it being the understanding that, if we so purchase, we are to get the property for the amount actually going to Mr. Canfield for the same.”

In reference to this agreement plaintiff testified:

“At the time Mr. Munroe said he would give me $10,-000 if I would use my influence to get the timber for them at a price they could afford to buy it at, I said to him that 1 would do what I could, but I did not want that to bar me from any commission from Mr. Canfield; that it would be no price as a commission for a deal of that size, —of that magnitude. He said he did not care anything about how much commission I got from Mr. Canfield as long as he got the timber for the actual price going to Mr. Canfield.”

It appears that after this meeting of the parties in Grand Rapids on January 3, 1896, no further negotiations were had between the parties in reference to purchase and sale of the lands until in December following, when negotiations were opened between defendant and Mr. Munroe, and the lands were purchased from defendant by the Thayer Lumber Company for $1,300,000 some time in January, 1897, the contract being finally made, and first money paid, in February following. Mr. Munroe testified:

“During the fall of 1895 and up to January 3, 1896, when they [ the negotiations ] terminated, Mr. Leathers was acting in my behalf and in my interest. I had an arrangement with him, in case he got a satisfactory price for the timber, and negotiated the trade, we were to pay him a certain sum of money. Before we sent our man onto the lands, I saw Mr. Leathers, and asked him, ‘ What do you want out of this ? ’ * * * and he said in a trade of that kind he ought to have $35,000 from us. I told him if that was his bottom figure we would go no further. * * * He said he could do us a lot of good in a trade of that kind, and wanted to work for our interest alone. * * * We finally agreed that if Mr. Leathers would work solely for our interest, and for no commission from the other side, and we were to have the timber for the net amount that Mr. Canfield sold it for, we would pay him $10,000 in cash, in case he negotiated the sale at a price satisfactory to us. * * * In doing what he did during the fall of 1895, I understood he was acting for me.”

The defendant testified that he made no agreement with Mr. Leathers to pay him a commission, but, on the contrary, stated to him that he would not pay him any commission. He further testified that Mr. Leathers wanted a commission of $40,000, and that he told him he would have nothing to do with the deal, as he was able to make his own sales and handle his own lands as well as any one could do it for him.

The defendant’s claims on the trial were: (1) That he did not employ plaintiff; and (3) that plaintiff was in the employ of the Thayer Lumber Company, and working for and in its interests, and not in the interest of defendant.

Plaintiff’s claim was that he stood in relation to the parties as a broker, acting for both. The court charged the jury upon that question as follows:

“Upon the question of double commissions, — whether a broker may act for both parties to a deal, whether he may be agent for both buyer and seller, — I understand the law to be that the broker cannot act as the agent of both parties where their interests are adverse, without their knowledge and consent. Where the double agency is unknown to either party, the broker cannot recover from both; that is, he cannot enforce the payment of commissions from the party who was ignorant of his being employed by the other,— who was ignorant of the double employment. Where the double agency is known and assented to by both parties, and each agrees to pay the broker a commission, he may recover from both; and where the broker is simply acting as a middleman to bring the parties together, and takes no part whatever in the negotiations between them, he may, to this extent, act as the agent of both parties, and recover commissions from each; and it is immaterial in such case that either party was unaware that he was employed by the other. It is claimed by the plaintiff in this case that that was his relation to this deal, —that he was simply a middleman to bring the parties together, they to make their own contract as to price and terms; while on the part of the defendant it is claimed that he was at least employed to serve the Thayer Lumber Company to a greater extent; that he was to do something more, as it is claimed by the defendant, in behalf of the Thayer Lumber Company; that he was to do everything he could to obtain a purchase for them on as reasonable terms as he could. There is a question of fact over which there is a controversy, and that is for you to determine which is correct.”

The defendant asked the court to charge the jury as follows:

“It appears by the evidence of the plaintiff that, after the time when he claims the agreement was made between him and Mr. Canfield by which he was to be paid a commission by Mr. Canfield, he worked and acted in the business relating to the sale of the lands to the Thayer Lumber Company against Mr. Canfield’s interest, and in the interest of the Thayer Lumber Company. Under the facts as related by the plaintiff, he is not entitled to recover.”

This was refused. This request was based upon the testimony given upon the cross-examination of the plaintiff, and upon certain letters written by him to Mr. Mun-roe. On December 4, 1895, during the time the negotiations were going forward, plaintiff wrote Mr. Munroe:

“I went to Manistee yesterday. * * * I saw Mr. Canfield while there, and told him your men were now looking the land, and that you expected a report from them about the 10th. The 30 days will be up the 14th. Canfield expects to go away about the 18th. I could find out but little from him, further than that there are several parties now figuring on the timber. Dempsey is without doubt the most dangerous competitor, as he wants the timber. Chick found out from Antisdel yesterday that he expected to make a deal with Dempsey, and claims he has a sure thing of a sale; but all we can judge from what he says is, we know he is working hard to sell to Dempsey. I am satisfied that whatever you do about making the deal will have to be done by the 14th, and it seems to me it would be well to have a thorough understanding with your folks down East, so as to save any delay, as I believe Dempsey wants this timber. Antisdel told Chick that Dempsey had raised his bid to $1,200,000.”

Again, on January 4, 1896, he wrote Munroe:

“Mr. Canfield left for Manistee at 4 o’clock. I had several talks with him yesterday and today, and have tried hard to impress upon him that you would buy if the price was reduced to where it should be.”

On January 6th plaintiff wrote Mr. Munroe again, saying:

“I started in to help you get this tract of timber, and no one else, and I don’t want you to think that I shall do anything nor say one word to any one until you decide to drop it, if you do so decide; and I am ready to assist in the matter in your interest, the same as I have thus far.
“P. S. You need have-no fears of Mr. Canfield or any one else knowing through me that you have been East.”

On November 20, 1895, he also wrote Mr. Munroe:

“I saw Canfield here today, and had quite a talk with him. He talks about the same as last week. Says he will wait 30 days from the 14th inst. But I am satisfied from what he says that Dempsey is quite strongly of the notion of buying the tract. This, added to what I heard while at Manistee last week, which I told you about, leads me to believe that there is something in it more than simply talk. I saw O’Brien today, and cautioned him against any favorable talks to Canfield about extending the railroad, and he will be all right. He told me that he talked with Hughart before he went away, and that they had agreed that the rate should simply be enough to cover the cost of construction and hauling. I believe, in order to save time, it is safe for you now to put your men on at once, and look the timber.”

In reference to the building of the Grand Rapids & Indiana Railroad, spoken of in the above letter, the plaintiff testified:

“This tract of land was 23 miles north and east of the Grand Rapids & Indiana Railroad. * * * Mr. Mun-roe and I talked about the timber being brought over the Grand Rapids & Indiana Railroad, and Mr. Canfield talked about it with me in his office. * * * Mr. Canfield talked about the building of his road from Luther to Manistee, and, if the Grand Rapids & Indiana could be got to extend their road into the timber, it would be brought out that way, and he could take it to Manistee.”

Plaintiff further testified as follows:

“Q. You say, in the talk of November 14th with Mr. Canfield, it was discussed that, by the extension of the Grand Rapids & Indiana Railroad up into the timber, the timber could be brought down into Manistee. Did you do anything for Mr. Canfield to aid in the extension of that road to the timber ?
“A. No, sir; I do not know that I did.
“Q. Did you not do something to prevent his obtaining the extension of the road into the timber ?
“A. I had a talk with Mr. Hughart and Mr. O’Brien.
“Q. You had a talk with them for the purpose of preventing the extension, did you not ?
“A. I had a talk with them for the purpose of arranging for the extension in there, at Mr. Munroe’s request.
“Q. Did you not talk with them to dissuade them or prevent them from making an extension of the road that would accommodate Mr, Canfield ?
“A. I don’t know whether I did or not. I think perhaps maybe I may have said to them that Mr. Munroe did not want it known.
“Q. Then you may have done what you could to prevent the Grand Rapids & Indiana Railroad Company from complying with any request that Mr. Canfield might make for the extension of the road to the timber ?
“A. I don’t know whether I did or not, sir.”

On redirect examination plaintiff testified in reference to this matter:

“Q. Counsel has called your attention to an arrangement with the Grand Rapids & Indiana Company, with Messrs. Hughart and O’Brien, with reference to the extension of the Grand Rapids & Indiana road to this timber. What did you do in reference to this matter ?
“A. I saw Mr. Hughart and Mr. O’Brien, to see if the road could be extended to the timber from Lake City for handling this tract of timber, — for bringing it out by rail to Muskegon, or to Big Rapids, rather.
“Q. Did you do anything or say anything to prevent him — Mr. Canfield — having the line extended there than you have already stated ?
“A. No, sir; I did not. Both Mr. Hughart and Mr. O’Brien said that Mr. Canfield had talked with them about extending the line in, but the road was too poor financially to extend it, and,' if it was extended for bring ing out that timber, somebody would have to put up the money; and thereby Mr. Munroe, for his company, arranged with the Grand Rapids & Indiana road to advance certain moneys to extend the line into the timber, and that money was to come back in freights. My recollection is, it was somewhere from $50,000 to $75,000 money that was to be advanced.”

On cross-examination plaintiff was asked further as to what he did for Mr. Canfield:

Q. I say, when you went to Mr. Canfield, before he agreed to pay you a commission, you were in a position where it was your duty to bring about a deal, if you could, without any commission from him ?
“A. Well, sir, I was satisfied from the talk with Mr. Canfield that I would have a commission from him when I made the arrangement with Mr. Munroe. * * *
“ Q. After making the agreement with Mr. Canfield, did you do anything to bring Mr. Munroe up in his price that you would not have done if you had had no agreement with Mr. Canfield ?
“A. No, sir; I don’t know that I did.”

Plaintiff further testified:

“ Q. While acting for the Thayer Lumber Company, you wanted to bring Mr. Cánfield down in his price ?
“A. I wanted to bring Mr. Canfield down where a deal could be made. I had talked with Mr. Canfield.
Q. And, acting for Mr. Canfield, you wanted to bring the Thayer Lumber Company up in price ?
“A. Yes, perhaps so.
Q. So that you were playing each against the other in that way, were you not ?
“A. Yes, sir.”

It is settled in this State that a broker who simply brings the parties together, and has no hand in the negotiations between them, they making their own bargain without his aid or interference, can legally receive compensation from both of them, although each be ignorant of his employment by the other. Ranney v. Donovan, 78 Mich. 318; Montross v. Eddy, 94 Mich. 101 (34 Am. St. Rep. 323). But from the plaintiff’s own testimony that is not the situation here. He first entered the employment of the Thayer Lumber Company, agreed upon a commission to come from that company, and agreed to act in its interest, and did so act during the whole time the negotiations were pending. The parties were not left to make their own bargain without his aid or interference. He was, under the agreement with the Thayer Lumber Company, to negotiate the purchase for it, and testified that during the negotiations he was trying to get Mr. Canfield’s price down; and it is apparent from his letters to Mr. Munroe and from his testimony that in the interest of the Thayer Lumber Company he was active in measures to ward off Mr. Canfield from obtaining an extension of the Grand Rapids & Indiana Railroad to the timber, and in his dealings with Mr. Dempsey. The general rule of agency is that an agent to buy or sell is bound to make the best bargain he can for his principal, and, if he takes any compensation from the other party, it becomes at once the property of his principal, the law not permitting the agent to allege that it was received otherwise than as agent. And generally no agent, in the course of bis agency, — in the matter of his agency, — can be allowed to make any profit without the knowledge and consent of his principal. It is said in Rice v. Davis, 136 Pa. St. 442 (20 Am. St. Rep. 931), that—

‘ ‘ The principle underlying this case, that an agent for the sale of property cannot at the same time act as agent for the purchase thereof, or interest himself therein, and thus entitle himself to compensation from both vendor and vendee, is grounded on the infallible declaration that ‘no man can serve two masters.’ ”

The evidence is undisputed and conclusive that the employment of plaintiff by the Thayer Lumber Company was not that of'a middleman, and that he did not act as a middleman simply, but was employed to negotiate, and did negotiate, in the interest of that company, even as late as January 6, 1896. In his letter to Mr. Munroe he says: “I started in to help- you get this tract of timber, and no one else. * * * I am ready to assist in the matter in your interest, the same as I have thus far.” The testimony of Mr. Munroe, which is undisputed, is: “We were to pay him a commission of $10,000 in cash in case he negotiated the sale at a price satisfactory to us; ” and the written contract made with Munroe provided: ‘ ‘ It being the understanding that, if we so purchase, we are to get the property for the amount actually going to Mr. Canfield for the same.” It cannot be said, under these circumstances, that the plaintiff was a mere middleman.

In the case of Everhart v. Searle, 71 Pa. St. 261, it was said:

“An agent to sell cannot become an agent to buy. * * * ‘ The ground on which this , disqualification rests,’ it was .said in 8 Tomlins’ Brown, 72, ‘is, * * * that he that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords does, out of the mere necessity, work a disqualification.’”

We have seen from the letter of plaintiff of January 4, 1896, to Munroe, that he had “tried hard to impress upon him [ Canfield ] that you [Munroe ] would buy if the price was reduced to where it should be. ” Certainly this was not the act of a disinterested middleman. It was the effort of the agent of the Thayer Lumber Company to get the defendant to state a lower price. It was in keeping with his conduct during the entire negotiations. He was working in the interest of the Thayer Lumber Company.

The request to charge should have been given. < In this view of the case, no other questions need be discussed.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    JONES v. BOWLING.
    1. Land Contracts — Forfeiture—Waiver.
    A land contract which gave to the vendee the right of possession provided that, upon the vendee’s default, the vendor might declare the contract void, treat previous payments as stipulated rents, and take immediate possession of the premises. After default, the vendor, at the vendee’s request, consented to delay for a time the enforcement of the contract, in order to give the vendee an opportunity to sell the property and pay the debt, and accepted some small payments from the vendee. Held, that the vendee’s contention that the vendor thereby waived the right to declare a forfeiture, and elected to treat the vendee as a tenant, so as to entitle him to notice before his tenancy could be terminated, was inequitable.
    2. Same — Foreclosure—Defenses—Alienation of Title.
    The vendor in a land contract conveyed to a third person, subject to the contract. Thereafter he took a reconveyance, of which he gave the vendee notice, and, upon the latter’s default, sought to foreclose the contract. The vendee had never placed his failure to pay on the ground that the vendor had alienated his title. Held, that the fact could not be urged in defense of the suit.
    3. Same — How Differ from Mortgages — Procedure.
    Proceedings to foreclose land contracts are not subject to the limitations imposed by statute with respect to the foreclosure of mortgages, inasmuch as the relations of the complainants in the respective proceedings to the subject-matter are entirely different; the mortgagee having an equitable title, which can be expanded into a legal title only in the manner prescribed by law, and the vendor having himself the legal title, subject to divestiture upon the vendee’s performing the obligation which the retention of the title was in. tended to secure.
    Appeal from Wayne; Donovan, J.
    Submitted April 21, 1898.
    Decided June 7, 1898.
    Bill by Lewis H. Jones and Ida B. Jones against Jennie T. Bowling and Stephen J. Bowling to foreclose a land contract. From a decree for complainants, defendants appeal.
    Affirmed.

      C. E. Warner, for complainants.

      E. H. Sellers (John D. Conely and Cassius Hollenbech, of counsel), for defendants.
   Moore, J.

January 3, 1898, complainants filed a bill for the foreclosure of a vendor’s lien under a land contract. February 18, 1898, a decree was entered in which it was found that $10,802 was due, and directing the defendants to pay the same on or before March 21, 1898. In case of nonpayment by that date, sale might be made by a circuit court commissioner at any time thereafter. The decree also provided that Mrs. Bowling should be liable personally for any deficiency. It gave the possession of the premises to defendants for 30 days from the date of the decree. From then until May 1, 1898, they were allowed to occupy the premises upon paying $50 monthly in advance as rental, to be applied upon the amount found due and costs. If this rental was not paid, the decree provided for the appointment of a receiver to take possession of the property. From this decree, defendants appeal.

The land contract was in the usual form, except in one or two particulars. It contained these provisions:

“ The parties hereto further mutually agree that the said party of the second part shall have possession of said premises on and after this date, while he shall not be in default on his part in carrying out the terms hereof, taking and holding such possession hereunder; and he shall keep the same in as good condition as they are at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said parties of the first part shall, immediately after such failure, have a right to declare the same void, and retain whatever may have been paid hereon, and all improvements that may have been made on said premises, as stipulated rents for the use thereof, and may consider and treat the party of the second part as their tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom; that time shall be considered of the essence of this contract; and that this contract may be assigned only after consent of said parties of the first part in writing has been indorsed hereon. And it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties. ”

The record shows that, when the bill was filed, $10,000 of the principal sum was due upon the contract, and some interest and taxes. After the principal was due, defendants said that, if given a little time, they thought they could sell the property and pay the debt. The bill was not at once filed, and some small payments were made after the principal came due. It is urged that the receipt of these payments waived a forfeiture, and made the vendees tenants, entitled to notice before their tenancy could be terminated.

All of the principal was due July 1, 1897. Mr. J ones assured Mr. Bowling that he wanted the money due, but had no desire to be hard upon the defendants. Mr. Bowling thought he could sell the property, if given a little time, and said that, if the payment could be delayed until the 1st of December, if the property was not sold, or some arrangement made, he would make no trouble, but would give a quitclaim deed. During this time he was to pay $50 a week until the interest was paid up, and he made two or three weekly payments. What was done was not intended by the parties as a new contract, but was intended simply as a delay in enforcing the contract, which would be in -the interest of the defendants. We do not think they can now be heard to say, when they have failed to carry out the arrangement, that it changed the terms of the contract.

After the making of the contract, Mr. Jones conveyed the property to his father. The deed was made subject to this contract. It is now said that, because complainant had alienated his title, he cannot maintain this action. The record, however, shows that, long before this bill Was filed, the father reconveyed the property to Mr. Jones, and that Mr. Bowling was notified of this. Defendants never put their failure to pay what was due upon any such ground.

It is insisted by defendants that the land contract is an equitable mortgage, and that the proceeding is one to foreclose an equitable mortgage, and should be governed by the same rules as the foreclosure of mortgages in chancery. It is said that one year should elapse* after the bill is filed before the sale; that notice of sale should be published six weeks; and that the vendee, like the mortgagor, should be entitled to the possession of the property until the sale of the property is confirmed. Counsel ask, ‘ ‘ Why should not the proceeding to foreclose a land contract be the same as to foreclose a mortgage?” Our attention is not called by counsel on either side to any authorities which are conclusive of the questions involved here. It may be said, however, that the legal title to the land remains in the mortgagor, while the equitable title is in the mortgagee, who cannot acquire the legal title except in the manner prescribed by law. In the case of a land contract, the legal title remains in the grantor, while the equitable title is in the vendee. The legal title cannot be acquired by the vendee until he has performed the conditions of the contract. In discussing the question of liens, it is said: “A distinction exists between the lien of the grantor after conveyance, and the interest of the vendor before conveyance.” 3 Pom. Eq. Jur. § 1260, states it as follows:

“There is a plain distinction between the lien of the grantor after conveyance, and the interest of the vendor before conveyance. The former is not a legal estate, but is a mere equitable charge on the land. It is not even, in strictness, an equitable lien, until declared and established by judicial decree. In the latter, although possession may have been delivered to the vendee, and although, under the doctrine of conversion, the vendee may have acquired an equitable estate, yet the vendor retains the legal title; and the vendee cannot prejudice that legal title, or do anything by which it shall be divested, except by performing the very obligation on his part which the • retention of such title was intended to secure, namely, by paying the price according to the terms of the contract. To call this complete legal title a lien is certainly a misnomer. In case of a conveyance, the grantor has a lien, but no title. In case of a contract for sale, before conveyance, the vendor has the legal title, and has no need of any lien: His title is a more efficient security, since the vendee cannot defeat it by any act or transfer, even to or with a bona fide purchaser.”

The vendor, before conveyance, holds the legal title as security for the performance of the vendee’s obligation, as trustee, it is true, for the vendee, subject to his performing hi's agreement.

As we have seen, there is a very marked difference between the interests held in the real estate by a vendor under a land contract and a mortgagee; and we think this difference will answer the question why a land contract should not be foreclosed the same as a mortgage. In the case of a mortgage, the mortgagee knows the limitations put upon his possession by the statute. There is no such limitation placed upon the vendors in land contracts. Unless the vendee is given the right of possession by the contract, he is not entitled to it. Druse v. Wheeler, 22 Mich. 439, 26 Mich. 189; Buell v. Irwin, 24 Mich. 145; Moyer v. Scott, 30 Mich. 345; Burnett v. Caldwell, 9 Wall. 290.

In this case it was agreed that Mrs. Bowling should have possession of the premises while she should not be in default, and that, in case of her default, the vendor might take immediate possession of the premises. To hold that, after a default on the part of the vendee, a sale of the premises cannot be made until one year and six weeks have elapsed, would be to read into the contract conditions not contemplated by the parties when they made it.

Defendants had been in default six months when the bill was filed. The decree was not taken until six weeks later. They were then given 30 days in which to perform the contract, and possession of the premises for a like period of time before they were required to account for its rental value. We do not think they have any occasion to complain of this decree. The commissioner, in advertising the property, should be directed to do it for the same length of time, and in the same manner, as in a foreclosure of mortgage.

The other objections have been considered, but will not be discussed.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    DESBECKER v. MENDELSON.
    Fraudulent Conveyances — Rights of Creditors.
    Property of a debtor, transferred indirectly, without consideration, to his wife, may be subjected to the claims of his creditors, although its value at the time of conveyance wás but slightly in excess of incumbrances, if these have been substantially reduced by payments made by him in his wife’s name.
    Appeal from Mason; Palmer, J., presiding.
    Submitted April 26, 1898.
    Decided June 7, 1898.
    Bill in aid of execution by Samuel Desbecker and others, copartners as' Desbecker, Weill & Company, against Paulina Mendelson, the First National Bank of Ludington, and George N. Stray. From a decree dismissing the bill, complainants appeal.
    Reversed.

      Sloman & Groesbeck (M. B. Danaher, of counsel), for complainants.

      G. H. Blodgett (Fletcher & Wanty, of counsel), for defendants.
   Hooker, J.

Peter Mendelson was a clothing dealer in Ludington, and owned two store buildings and his stock of goods. The First National Bank of Ludington held a mortgage upon the buildings of $7,000. Mendelson had some unsecured debts, and there is convincing evidence that at least a portion of his indebtedness to the complainants was fraudulently contracted. A portion of the complainants’ claim fell due upon June 8, 1894; and on this day Mendelson informed the president of the defendant bank that he was embarrassed pecuniarily, and must fail, and that he contemplated securing home creditors. Thereupon an arrangement was made whereby he and his wife deeded the buildings to the bank, and it surrendered his notes, but not the accompanying mortgage, and executed a land contract with Mendelson’s wife, whereby it agreed to sell, and she to purchase, the premises for $7,000; that sum being the amount then due upon the mortgage. Stray, the president of the bank, then accompanied Mendelson to the office of a lawyer, where the latter executed a mortgage of his stock of goods to his brother-in-law, and, contrary to the advice of both Stray and the lawyer, then or subsequently made a second mortgage upon his stock to his wife, Paulina Mendelson. A third mortgage was made to another creditor, but it is unimportant. It is claimed on behalf of the bank that it took the deed to increase its security, by avoiding a foreclosure. It does not deny that it was taken as security for its claim, which it did not discharge. A few days after these transactions, Zeif, the. brother-in-law of Mendelson, sold the stock upon his mortgage, Mrs. Mendelson becoming the purchaser. The business continued without serious interruption; being conducted and managed by Mendelson, but in the name of his wife, until his death, which occurred some months later. The complainants obtained judgment against Mendelson, and this bill is filed in aid of execution. Meantime, $1,000 has heen paid upon the bank claim by checks of Mrs. Mendelson. It should also be mentioned that the second story of one of the stores was the residence of the Mendelsons.

From our examination of the evidence, we are convinced that this entire transaction, upon the part of Mendelson, was fraudulent, and that the amount paid upon the bank claim was paid by Mendelson, whereby said claim was reduced $1,000. The bank claim was $7,000. There was a homestead interest of $1,500, and there was the dower interest of Mrs. Mendelson in the premises, to all of which the levy was subject. At that time Mendelson was living, and the interest of Mrs. Mendelson was necessarily problematical. But the claim of the bank and the homestead interest amounted to $8,500, and it is, in our opinion, doubtful if the property could have been sold for more than that without a release of dower. Mr. Stray testified that he considered the property worth $10,000, and the assessment at $4,000 on a basis of 40 per cent:; and possibly the testimony of one other witness indicates that it might be worth that sum. That appears to be the full value, however, and several witnesses place the value much lower. Hence we feel warranted in saying that, at the time the deed and contract were made, the creditors were not injured, as there was no margin for them; and we should not hold that transaction fraudulent on the part of the bank, unless it connived to enable Mendelson to get the title in his wife, on payment which it was expected would be made from his own funds. We have no doubt that this was the design of Mendelson and his wife, but we have no reason to believe that the bank knew this. This plan was carried out, however, to the extent of the payment made, for we think that Mendelson furnished the $1,000 that was paid, as already stated. We are of the opinion that the contract should be set aside, the deed treated as a mortgage, and the premises sold upon said execution, subject to the balance due upon said mortgage, after deducting the payment of $1,000, and subject also to the dower and homestead rights of the widow. The complainants will recover costs against Mrs. Mendelson.

■ The decree of the circuit court is reversed, and one will be entered here in accordance with the views hereinbefore expressed.

The other Justices concurred.

       Rehearing denied October 3, 1898.


author: Montgomery, J.

text:
    BRYDON v. CITY OF DETROIT.
    Municipal Corporations — Excavation in Highway — Defective Sidewalk — Injury to Child.
    A city’s negligence in permitting the planks of a sidewalk to remain unsupported at the end next to an excavation, by-reason of which a five-year-old child fell into the excavation and was injured, cannot be excused on the ground that the excavation was left barricaded two hours before the accident.
    Error to Wayne; Lillibridge, J.
    Submitted April 26, 1898.
    Decided June 7, 1898.
    Case by Percy T. Brydon, an infant, against the city of Detroit, for injuries sustained by reason of a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. D. Joslyn, for appellant.

      Harry F. Chipman and Joseph B. Nolan, for appellee.
   Montgomery, J.

Plaintiff, who was at the time five years of age, sustained injuries which he alleges were caused by the defective condition of a sidewalk on Michigan avenue. The injury was sustained on the 30th of June, 1894. The testimony offered on behalf of plaintiff tended to show that on the occasion in question he was walking with, and a slight distance in advance of, his mother, who was going to market; that an excavation had been made opposite a lot fronting Michigan avenue, and a temporary walk built outside the location of the regular walk. It is claimed by counsel for the plaintiff that the testimony shows that, as this excavation was approached, the barrier which had been erected was insufficient, in that it did not extend across the sidewalk fully, but left a space of two to three feet next to a building which marked the line of the street. There was also testimony tending to show that the walk which plaintiff traveled over before reaching this barrier was composed of loose boards laid endways, and that the end next the excavation was not supported underneath; that plaintiff, in walking on this place, stepped on one of these loose planks or boards, and was thrown into the cellar.

Defendant contends that the testimony conclusively shows that the excavation had been left barricaded two hours before the accident occurred; that the case falls within Welsh v. City of Lansing, 111 Mich. 589; and that, therefore, the circuit judge should have directed a verdict for the defendant. No other point is discussed in the brief of defendant’s counsel, and none other can be considered. We think this case is clearly distinguishable from Welsh v. City of Lansing. In this case the primary cause of the injury would appear to have been the bad condition of the walk as the barricade was approached. While a barricade, properly constructed, might have arrested the fall, and the injury might have been lessened thereby, it is manifest that the primary -cause was the defective walk. We think, also, in view of this condition of the approaching walk, that the question as to the sufficiency of the barricade was one for the jury.

Judgment affirmed.

Grant, C. J., Moore and Long, JJ., concurred. Hooker, J., did not sit.


text:
    DIETRICH v. SCHREMMS.
    1. Bridges — Location—Delayed Objection.
    Where a drawbridge has been located and maintained at a given point for 29 years, first by a private corporation and then by a township which purchased from the corporation, without objection from any person or municipality, during all of which time it has been recognized by the legislature as a lawful structure, and has occasionally been made the object of appropriations by the board of supervisors, it is too late for taxpayers to question its legality on the ground that it is not at the exact point authorized by the board.
    2. Same — Navigable Streams.
    All navigable streams are public property for the use of all the citizens, and there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.
    3. Same — Limitations on Sovereign Power.
    In this State, the only limitations upon the sovereign power in the matter of bridging navigable streams are those imposed by article 18, § 4, of the State Constitution, requiring the consent of the board of supervisors, and by the Constitution and laws of the United States.
    4. Same — Highway Commissioners — Invasion oe Constitutional Powers.
    Therefore, an act which authorizes a given township to construct- and maintain -a bridge across a navigable stream which separates it from another township is not open to the objection that it seeks to divest the highway commissioner of such other township of his constitutional powers.
    5. Same — Maintenance by Township.
    It is lawful for a township, with the authority of the board of supervisors and by virtue of an express grant of the legislature, voluntarily to assume the erection and maintenance of a drawbridge over a navigable stream which is the dividing line between it and another township.
    6. Same — Duty to Repair — Implied Powers.
    Where a township has acquired the title to a drawbridge extending in part beyond its territorial lines, the right to raise the money necessary to keep the structure in repair, and to operate the draw, follows as a matter of law
    Appeal from Saginaw; Wilber, J.
    Submitted April 26, 1898.
    Decided June 7, 1898.
    Bill by John Dietrich and others to restrain George Schremms and others, officers of the township of James, from employing a tender for, and making repairs upon, a certain drawbridge. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      James H. Davitt (George W. Weadock, of counsel), for complainants.

      Frank E. Emerick and Chauncey H. Gage, for defendants.
   Moore, J.

Complainants, who are taxpayers of the township of James, in Saginaw county, filed the bill in this case to enjoin the highway commissioner from making repairs on a bridge across the Tittabawassee river, known as the “Merrill Bridge,” and to enjoin the employment of a bridge tender, and the payment of orders which had then been issued for repairs of said bridge. In the court below the bill was dismissed. Complainants appeal.

The record shows that the river at the place crossed by the bridge is the dividing line betwéen the townships of Saginaw and James. The bridge is a drawbridge. The greater portion of the pier sustaining the draw when open is in the township of Saginaw, while the main channel for the passage of boats is in the township of James. At this point the stream is navigable for boats of 16 tons or mere burden. A private corporation known as the Swan Creek & Saginaw Bridge Company was organized in 1867, and in that year was authorized by the board of supervisors to erect a swing bridge “across the Tittabawassee river, at or as near as may be to a point on said river where the section line between sections 4 and 5, town 11 north, of range 4 east, and sections 32 and 33, town 12 north., of range 4 east, in Saginaw county, crosses said river.” Prior to this action, the highway came to' the bank of the river, where a ferry was maintained; and at this location a bridge was built and opened for travel in 1869. In 1869 the legislature authorized the township of Swan Creek to borrow $3,000, and to apply it in aid of the construction of this bridge (Act No. 313, Laws 1869), which was done. In 1875 that portion of Swan Creek township adjacent to the river was formed into a new township, called James. The same year the legislature authorized the last-named township to purchase the bridge from the private corporation which then owned it, and the township was charged with the duty of attending to. the swing and draw, and was authorized to collect tolls, and at any time to declare it a free bridge. This act provided:

“Upon said bridge being purchased by said township, the commissioners of highways of the township shall have charge thereof, and may employ some suitable person to attend the swing in said bridge, and to collect toll thereon,” etc. Act No. 248, Local Acts 1875.

In 1883 the township made this a free bridge; and from the time the township bought the bridge, in 1875, until 1887, it operated, supervised, and kept all of the bridge in repair. In the last-named year the legislature authorized the township to borrow $4,000, issuing its bonds therefor, to build a bridge across the river “ at the point where the. bridge built by the Swan Creek & Saginaw Bridge Company is now located.” This act provided that, if the township voted to borrow this money, the supervisor, clerk, and commissioner of highways should be special commissioners to have charge of the building of said bridge, and that they might make a contract for- its building. Act No. 370, Local Acts 1887. The township voted the money, and the bridge jyas built in the same location as the former bridge, the piers being in the same places occupied by the other piers, except that in the new bridge .there was one pier less than in the old bridge.

A bridge has been located at this point, first by the corporation, and then by James township, for 29 years, without objection from any person or municipality until this bill was filed. In 1887 the board of supervisors authorized the township of James to construct a bridge across the Tittabawassee river on the west line of section 4, town 11 north, of range 4'east. It is now said that, as the location of the bridge is about 60 rods from the west line of section 4, the bridge is not a lawful bridge.

In Maxwell v. Bay City Bridge Co., 41 Mich. 462, Justice Cooley said:

“Bridges over navigable waters are sometimes needful at places where there are no towns or considerable settlements; and in such a case the interests involved would be concerned with getting over the stream, and not in making use of it in connection with commercial business at the point of crossing. Less particularity might be sufficient in such a case, because it would generally be unimportant to the interests desiring or opposing the bridge whether it should be located a few rods farther up or down.”

The record shows that in October, 1887, the board of supervisors appropriated $500 to aid the township of James in the construction of this bridge, and that at its October session in 1897 the board appropriated $400 to the township of James for the purpose of repairing the bridge so located, indicating' no objection to its location. As we have seen, the hoard of supervisors authorized the location of this bridge where it is in 1867, and at the dates mentioned made appropriations for its repair. The legislature has recognized it for 29 years. The bridge accommodates a large travel, one of the principal thoroughfares of the county passing over it; and we think it is now too late to raise the question.

It is said by complainants’ counsel: “The township of James had no authority to construct this bridge, so far as the same lies within the township of Saginaw; and, if Act No. 370, Local Acts 1887, can be construed as attempting to confer such authority, it is unconstitutional and void,” —citing Davies v. Board of Supervisors of Saginaw Co., 89 Mich. 295; Wilcox v. Paddock, 65 Mich. 23; Robertson v. Baxter, 57 Mich. 127; People, ex rel. Hubbard, v. Township Board of Springwells, 25 Mich. 153; People, ex rel. Le Roy, v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Wrought Iron Bridge Co. v. Township of Jasper, 68 Mich. 441. It is also claimed that there is no provision of law for raising money to pay bridge tenders, and that moneys raised for highway purposes must be expended within the township where raised; citing 3 How. Stat. § 1338; Sawyer-Goodman Co. v. Township of Crystal Falls, 56 Mich. 597. It is also said: “Because there was no provision in Act No. 370, either for repairing this bridge or operating the draw, that act was incomplete, and therefore not valid, even if constitutional upon other grounds; ” citing Ecorse Township Board v. Board of Supervisors of Wayne Co., 75 Mich. 264, approved in Township of Frenchtown v. Board of Supervisors of Monroe Co., 89 Mich. 205, 209; Osborne v. Lindow, 78 Mich. 606, 614.

An examination of these cases does not convince us that it was either unconstitutional or unlawful to authorize the construction of the bridge in the first instance, or to authorize its purchase by the township of James later. Our attention has not been called to any provision of law authorizing highway commissioners, under the powers conferred upon them by the 'general highway law, to construct a bridge over a navigable stream where the interests of navigation required the bridge to contain a draw. Article 18, § 4, of the State Constitution, forbids the bridging of a navigable stream without authority from the. board of supervisors of the county where the bridge is located. Subject to this limitation, and the limitation imposed by the Constitution and laws of the United States in relation to navigable streams, the legislature has the right to enact laws providing for the erection, maintenance, and ownership of bridges over the streams of this State. 4 Am. & Eng. Enc. Law (2d Ed.), 923. This right it has frequently exercised. Act No. 62, Pub. Acts 1889, provides for the erection of bridges on-lines between townships, and between townships and cities and villages. It was held in Ecorse Township Board v. Board of Supervisors of Wayne Co., 75 Mich. 264, that this act did not apply to a navigable river over which it would be necessary to construct a drawbridge which must be operated during the season of navigation; Justice Champlin saying: “Where a township refuses voluntarily to assume the burden and obligation of constructing and maintaining a drawbridge, the burden and the obligation cannot be forced upon it by the board of supervisors without an express grant from the legislature authorizing them to impose such burden,” — indicating pretty clearly that, if a township voluntarily assumed the erection and maintenance of such a bridge when duly authorized by the board of supervisors and by virtue of an express grant of the legislature, it would be lawful. The record shows that all this was done in this case.

In Com. v. Inhabitants of Charlestown, 1 Pick. 180 (11 Am. Dec. 161), it is said that, “if the stream is a navigable river, it is for common use, and none but the legislature can authorize the interruption of it.” The court in that case say further:

‘ ‘ There can be no doubt, therefore, that by the principles of the common law, as well as by the immemorial usage of this government, all navigable waters are public property for the use of all the citizens, and' that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them. The legislature may, without doubt, by a general law, delegate to the magistrates of a county, or to any other body, the power of determining when public convenience requires that a bridge should be thrown over a creek or a cove; but, until they have made such delegation in express terms, it is a branch of sovereign power, to be exercised by the legislature alone.”

See Com. v. Coombs, 2 Mass. 489; Inhabitants of Charlestown v. Middlesex County Com'rs, 3 Metc. (Mass.) 202; Washer v. Bullitt Co., 110 U. S. 558; Inhabitants of Brunswick v. City of Bath, 90 Me. 479; Carter v. Bridge Proprietors, 104 Mass. 236.

In 1882 the legislature authorized the board of supervisors of Bay county to purchase from the Bay City Bridge Company a drawbridge across the Saginaw river, which purchase was soon thereafter made. Act No. 278, Local Acts 1889, established the Bay county bridge commission, which commission was authorized to receive from the board of supervisors a conveyance of the bridge which had been purchased by the board. In People, ex rel. Attorney General, v. Bay County Bridge Commission, 115 Mich. 622, it was held that the bridge commission acquired the title to the bridge and property which was formerly owned by the Bay City Bridge Company, and it was said:

“We think it also clear that whatever right the county of Bay had to the bridge and its approaches was after-wards acquired by the bridge commission, and following this right was the duty to keep in repair.”

The township having acquired the title to this bridge, we think it logically follows that it is its duty to keep it in repair, and to provide the necessary funds to operate the draw, not exceeding the limitation fixed by law.

We have examined the other questions raised, but we do not deem it necessary to discuss them. We have already seen that the Constitution of our State requires the consent of the board of supervisors to the bridging of navigable streams. The record shows that this was obtained. It was accompanied by requirements as to the character and construction of the bridge. Among other things, it was required that a draw should be constructed and operated. As we have also seen, the legislature authorized what has been done. This action has been acquiesced in for a long series of years. If the prayer of the complainants is granted, the effect is to close the crossing of this stream against a large number of persons, or to compel them to go much farther, and to cross the river upon a toll bridge. We do not think the case made by complainants would justify such action.

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, C. J.

text:
    CITY OF JACKSON v. JACKSON COUNTY TREASURER.
    1. Statutes — Title—Amendment oe Charter.
    The title of Act No. 376, Local Acts 1897, “An act to amend the charter of the city of Jackson, to repeal certain sections thereof, and to add certain sections thereto,” is sufficiently comprehensive to cover a provision that, instead of tax sales being conducted by the city recorder as theretofore, the city treasurer should make returns to the county treasurer for collection under the general law.
    2. County Treasurers — Ministerial Duties — Taxes.
    The county treasurer has no authority to pass upon the regularity of tax proceedings when called upon to receive and file reports of delinquent taxes returned to him by a city treasurer in pursuance of the city charter.

      Certiorari to Jackson; Peck, J.
    Submitted May 10, 1898.
    Decided June 7, 1898

      Mandamus by the city of Jackson to compel Joseph Weinhold, treasurer of Jackson county, to receive and file the city treasurer’s report of lands delinquent for taxes. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      John W. Miner (Grove H. Wolcott, of counsel), for relator.

      Richard Price, for respondent.
   Grant, C. J.

The respondent refused to receive and file in his office the reports of delinquent taxes for the year 1897. The city of Jackson thereupon applied to the circuit court for a writ of mandamus to compel the respondent to receive and file the reports, and proceed, under the law, to the sale of the delinquent lands. The writ was granted, and the proceeding is before us for review upon the writ of certiorari.

Under the charter of the city prior to 1897, such sales were conducted by the recorder of the city. By Act No. 376, Local Acts 1897, chap. 23, § 11, the charter was amended, providing that the city treasurer should make returns for lands delinquent for taxes to the county treasurer, to be collected under the general laws of the State.

The principal reason advanced for the action of the respondent is that the object of the law was not expressed in its title, and that, therefore, the law is void. The title is as follows: “An act to amend the charter of the city of Jackson, to repeal certain sections thereof, and to add certain sections thereto.” No discussion is necessary. The case is ruled against the respondent by Powell v. Jackson Common Council, 51 Mich. 129.

The return is attacked for certain alleged irregularities and defects claimed to appear on the face of the records presented to the respondent. The county treasurer is not clothed with the judicial power to pass upon the regularity of tax proceedings. His sole duty is to proceed as the law directs. This case is in no respects similar to Board of Supervisors of Cheboygan Co. v. Township of Mentor, 94 Mich. 386, where we held that this discretionary writ would not be issued to accomplish a confessedly illegal purpose.

The judgment is affirmed, and the respondent directed to proceed in accordance with this opinion.

The other Justices concurred.


text:
    GREENFIELD v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroad Companies — Appliances—Negligent Inspection-Question eor Jury.
    Evidence that the inspector provided hy a railroad company to inspect monthly the hand-car in use by section men did not make a careful examination himself, but relied on the statements of the section foreman that the car was all right, ' raises a question of fact for the jury as to whether his duty was properly performed.
    2. Same — Negligence oe Fellow-Servant — Evidence — Rebuttal.
    Where, in an action by a railroad employé for injuries caused by a defective hand-car, the company seeks to show that, in addition to providing a regular inspector, it imposed upon a fellow-servant of the plaintiff the duty of inspecting the car in question each morning, and that such inspection showpd the car to be in a reasonably safe condition for use, the plain tiff may show in rebuttal that the daily inspection was not made.
    Error to Lenawee; Chester, J.
    Submitted April 22, 1898.
    Decided June 7, 1898.
    Case by Charles E. Greenfield against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Watts, Bean & Smith, for appellee.
   Hooker, J.

The plaintiff was a section man upon the defendant’s railroad. He was injured by being thrown from a hand-car, through the breaking of the iron handle or arm by which the car was propelled. This iron handle or arm was cracked, and there was evidence that the crack was an old one. The negligence relied upon was the. alleged failure to keep the hand-car in repair. This raised the question of inspection, and the defendant offered evidence tending to show that it provided an inspector, whose duty it was to inspect the car monthly, and'that such duty was performed; also, that the section foreman was required to examine the car each morning, before using it, and to include in a weekly report of his work a statement as to whether the car had been examined daily, and its condition at the time of making the report, and that this duty had been performed by the section foreman. On the part of the plaintiff there was testimony tending to show that the inspector did not make a careful examination, and that he relied on the statement of the foreman that it was all right, drawn out by an inquiry made by the inspector, instead of examining the car himself. We are of the opinion that this raised a question of fact for the jury.

Error is assigned upon the admission of testimony upon rebuttal tending to show that the section foreman did not examine the car each morning; it being contended that he was a fellow servant, and it was therefore immaterial. The defendant brought this subject into the case. If, as it claims,- — and perhaps rightly, — -the examination required of the foreman was not that inspection required by the master to secure the maintenance of the car in good condition, but merely a precaution taken to prevent accident caused by defects arising suddenly, as suggested in the case of McDonald v. Railroad Co., 108 Mich. 7, we fail to see why the defendant introduced the subject, if counsel were prepared to admit that the break was old, as seems to be conceded here. But an examination of the record leads us to believe that upon the trial the defendant’s counsel contended that the car was in a reasonably safe condition; and the testimony of Jacobs, that, according to requirement, he examined it that morning, and every morning, and found it so, would be competent and important testimony. It would, however, be subject to contradiction. There was therefore no error in admitting this testimony.

There are many assignments of error in the case, but we think it unnecessary to allude to others, further than to say that they have received consideration, and we find no error in them.

The judgment is affirmed.

The other Justices concurred.


text:
    LEMERAND v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Betterments — Reimbursement—Notice of Outstanding Title.
    One who, having knowledge that the title to land to which he holds a quitclaim deed is outstanding in a railroad company, sets out fruit trees thereon, cannot, upon the company’s taking forcible possession and destroying the trees,.recover their value as betterments in an action at law.
    2. Same — Remedies—Statutes.
    Whether, in view of the fact that the common law gave no right of recovery for betterments as against the owner of the title, and that the statute (3 How. Stat. § 7836) authorizes such recovery only by a defendant in ejectment, the forcible dispossession of one who had made improvements in good faith and without notice would leave him remediless at law; —qucere.

    3. Same — What Constitute.
    Whether, in any event, fruit trees could be considered “betterments,” as against a railroad company which was obliged to remove them in order to make use of the land as a right of way, — qucere.
    Error to Monroe; Kinne, J.
    Submitted April 22, 1898.
    Decided June 7, 1898.

      Case by James Lemerand against the Flint & Pere Marquette Railroad Company and the Monroe & Toledo Railroad Company for depriving plaintiff, by a forcible entry, of the value of alleged betterments. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Ira G. Humphrey and Willis Baldwin, for appellant.

      Landon & Lockwood, for appellees
   Moore, J.

An examination of the accompanying plat will aid in understanding the situation. In 1873 about 36

acres of land was owned by Mr. La Fountain and Mrs. Toll as tenants in common. This land was divided into two nearly equal parts by Elm avenue, which runs nearly east and west. In April, 1873, William L. Webber, as trustee for the Flint & Pere Marquette Railroad Company, purchased the west 33 feet of that part of the tract lying north of Elm avenue. Mr. Webber’s deed was recorded in May, and contained this provision: “That, if the same shall ever be occupied for the running and operation of a railroad, the same shall be duly fenced by the company. ” Soon after the deed was given, a railroad grade four or five feet high was made on the north two-thirds of the land bought, and a fence was built on the east line of the part graded. This strip of land was thereafter assessed either to Mr. Webber or the railroad company, and the taxes paid by them. This land was afterwards conveyed to the Monroe & Toledo Railroad Company. In 1888 the plaintiff obtained a quitclaim deed of substantially the west half of the land lying north of Elm avenue, including the 33 feet which had been deeded to Mr. Webber. The plaintiff removed the fence, soon after he obtained the deed, back 33 feet,- which took it to about the middle of the grade. The plaintiff gave a mortgage on his land in 1892, and another in 1895, in each of which his land was described as bounded on the west by land of the Flint & Pere Marquette Railroad Company. All his tax receipts read the same way, and he knew of the grade and of the talk about building a railroad on the land.

In the spring of 1893 the plaintiff set out on the 33-foot strip of land 55 plum trees and 30 pear trees. That spring he had been notified to move the fence back, because the railroad company desired to place tracks upon the grade. There is a dispute in the testimony whether this notice was given before or after the trees were set. This notice was repeated in the summer of 1894. On one Sunday in June, 1896, the company .entered upon the 33-foot strip of land, destroyed the trees, and built its track. Soon thereafter plaintiff commenced a suit in the circuit court for Monroe county in an action of trespass, claiming damages for the destruction of these trees and the crops growing upon the strip of land, and for damages done outside of the strip of land. The circuit judge charged the jury in that case:

“The plaintiff will not recover damages in this action for the value of the permanent improvements and the trees destroyed in the right of way, or for deprivation of his right to have his damages assessed in an action of ejectment. As to these elements of damages, the plaintiff is left unprejudiced, the same not being in this case.”

The jury returned a verdict as directed, for $65.40. No appeal was ever taken in that case. Afterwards this action was commenced.

The declaration contained two counts, in the first of which it is, in substance, recited that plaintiff, at the time of the alleged trespass, in June, 1896, was in actual and peaceable possession of the premises, under a claim of title, and had been for more than six years; that within six years he had set out the trees in question; that on Sunday the defendants took forcible possession of said premises, and by that act deprived the plaintiff of his right to have the value of his improvements to the land assessed, as provided by section 7836, 3 How. Stat.; and reciting the destruction of the trees and the value of the improvements destroyed, and claimed damages in the sum of $2,000. The second count recited the forcible entry upon the premises, the destruction of the trees without notice to the plaintiff and without legal determination, and claimed damages in the sum of $2,000. ■ To this declaration the defendants pleaded the general issue, and gave notice that the former suit was res adjudicate/, of this one. On the trial it was admitted that the property described in the declaration in the first case includes the 33 feet described in the declaration in this case; that the trees described in the two declarations are the same, and that the entry complained of is the same. The court held that there could be no recovery under the second count, but that proofs might be taken under the first count. The case was tried by a jury, who returned a verdict in favor of defendants. The plaintiff brings the case here by writ of error.

We do not think the court erred in relation to the second count. If it states a cause of action at all, it is in trespass, and is by the former suit res adjuclicata.

The trial judge, among other things, charged the jury as follows:

“The plaintiff having been in peaceable possession of the premises in question for more than six years prior to the entry complained of, and having taken possession under color of title, there was no peaceable way known to the law to evict him from these premises except by an action of ejectment. In such an action he would have been defendant, and had his title failed him, as he now admits it has, he would have been entitled to recover from the plaintiff railway company in that action compensation for such improvements made on the premises in question to the extent that such improvements would have increased the then value of the property. The entry complained of, and the retaining possession of the premises in question, deprived the plaintiff in this case of having his damages ascertained in an action of ejectment; and this suit is brought to recover such damages as he could have obtained had such action been brought, and he is entitled in this suit to recover those damages, providing he planted those trees in good faith, believing that he held the title to this property.
“If the plaintiff, in 1888, or soon thereafter, went into possession of this disputed piece of land 33 feet in width in good faith, believing that he had title, and if you further find from the evidence that he was in possession of the same under the same belief and good faith at the time he planted these trees, then I think plaintiff is entitled to recover in this cause. On the other hand, if you find from the evidence that, when the plaintiff planted these trees, he knew that the railroad company had a deed to this strip of land, and that they had paid taxes upon it ever since he (plaintiff) had made the purchase; and if you further find from the evidence that the plaintiff knew or had good reason to'know that the railroad company still claimed to own this land; and if you find from the evidence that he planted these trees either for the purpose of improving his claim, or because he was willing to take the chances of holding the land, — then the plaintiff planted these trees at his own peril, and if now it transpires that his title has failed, and that the railroad company possessed the title, then the plaintiff cannot complain, and he cannot recover in this action. If you find from the evidence that, before the time of planting the trees upon this strip of 33 feet, plaintiff had notice that this land belonged to the Flint & Pere Marquette Railroad Company or its trustees, then he cannot recover in this action, and your verdict should be for the defendants.”

The jury evidently found that plaintiff’s possession of the land and the planting of the trees was not in good faith. It is difficult, judging from the record, to see how they could have found differently. It is now urged that the court erred in holding that if plaintiff had knowledge of the title of defendants when he went into possession of the land, and when he planted the trees, he could not recover. It is said that the question of good faith is not involved, as plaintiff was in the actual and peaceable possession of the property for eight years before the alleged trespass occurred. This claim is based upon section 7836, 3 How. Stat., which reads:

“Whenever in any action of ejectment the plaintiff, or any one or more of the plaintiffs, if there be more than one, shall recover,' or recover any undivided interest in the premises, the defendant or defendants shall be allowed compensation in proportion to such recovery for buildings and improvements on the premises recovered, erected or made by him or them, by any person through whom he or they claim title, to the extent that such buildings and improvements shall increase the present value of said premises : Provided, the defendant or defendants, or the person through whom he or they claim title, shall have been in the actual, peaceable occupation of the premises recovered for six years before the commencement of the action: or, provided, the same shall have been so occupied for a less time than six years under a color of title and in good faith.”

Inasmuch as this was not an action of ejectment, it is difficult to see how the claim can be based upon this statute. It is urged that the provisions of the statute have been applied to a case that was not an ejectment case; citing Sherman v. A. P. Cook Co., 98 Mich. 61. This was a case in equity to quiet title, where both parties to the litigation asked that the value of the improvements be determined. At the common law there could be no recovery as against the holder of the title for betterments. They became a part of the freehold, and passed by the recovery in ejectment. The plaintiff was placed in possession of the land in its improved form. Sedg. & W. Tr. Title Land, § 690. At law, relief is granted only when provided by statutory enactment. Burkle v. Ingham Circuit Judge, 42 Mich. 513. In this State, as we have already seen, it is granted when the plaintiff brings ejectment. It is not given as a personal judgment against the plaintiff, but its payment is made a condition precedent to his obtaining a writ of possession. 3 How. Stat. § 7839; McCoy v. Grandy, 3 Ohio St. 463. We know of no provision of the statute which gives the maker of the betterments any relief at law except in actions of ejectment. The case of Webster v. Stewart, 6 Iowa, 401, in many respects resembles this one. In that case it is held that, when the rightful owner has obtained possession of the property without resorting to an action at law, he is not liable in an action at law for the value of improvements made by another. Claussen v. Rayburn, 14 Iowa, 136. Belief in these cases is granted in chancery, and, if it be said that it is inequitable to allow the defendants to retain possession of these premises without compensating the plaintiff for his improvements, it is reasonable to inquire under what circumstances would he be entitled in equity to compensation.

“It is uniformly established, in the modern procedure, that only a bona fide occupant of land will be permitted to mitigate the plaintiff’s claim for damages and mesne profits by offsetting the value of his improvements; and the same principle prevails in States which give the occupant alien upon the land for the surplus of the meliorations above the damages and mesne profits. The claim for betterments is founded upon equitable grounds, and it would be manifestly inequitable to the owner, and, indeed, a highly dangerous policy, to make allowances for improvements to one who made the expenditures with full knowledge of the adverse claim. Thus, it is said in Maryland (Linthicum v. Thomas, 59 Md. 583): ‘A claim for permanent improvements or betterments can be successfully asserted only by one who is a bona fide occupant or possessor.’ ” Sedg. & W. Tr. Title Land, § 694, and cases there cited; 3 Pom. Eq. Jur. § 1241, and cases cited.

There is also another principle involved in the case. Judge Cooley, in his excellent work on Constitutional Limitations (6th Ed., p. 476), quotes with approval language used in Brown v. Storm, 4 Vt. 37, as follows:

“The statute is highly equitable in all its provisions, and would do exact justice if the value either of the improvements or of the land was always correctly estimated. The principles upon which it is founded are taken from the civil law, where ample provision was made for reimbursing to the bona fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives to the possessor, not the expense which he has laid put on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of the land as it is when the owner recovers it and the value if no improvement had been made.”

Another text waiter says: “The character of the improvement must bé such as to make the land more valuable in the future for the ordinary purposes for which such property is owned and used.” Sedg. & W. Tr. Title Land, § 699.

All these betterment laws proceed upon the theory that no one should be made richer at the expense of another. What is the situation as shown by the record ? As early as 1873 this land ufas purchased to be used as the right of way for a railroad track. When he obtained title to it, the plaintiff knew the situation. A portion of the right of way was then fenced out. He saw fit to put upon the land fruit trees. The planting of these trees would doubtless be improvements upon ia fruit farm, but, instead of being improvements which added to the value of the right of way for railroad purposes, they were harmful. 'It was necessary for the owner to remove them before he could use the property for the purpose for which he bought it. The so-called “improvement” did not inure to the owner’s benefit, but was a damage to him.

Without passin¿ upon the question of whether, in this form of action, if" the proofs warranted it, a bona fide possessor of lands could recover against the rightful owner the value of improvements made by him, we are satisfied that, in any view of the case, the proceedings in the trial court were fully as favorable to the plaintiff as they ought to have been.

Judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

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    GRISWOLD v. COMMON COUNCIL OF LUDINGTON.
    Municipal Corporations —Enforcement of Judgments — Mandamus.

      Mandamus will not lié to compel the officers and common council of a city to pay a judgment out of moneys on hand, where such moneys were raised and are required for other purposes; the creditor’s remedy being under the statute re- * quiring such judgments to be spread upon the tax roll.

      Mandamus by A. Linley Griswold against the common council of the city of Ludington and others to compel the payment of a judgment obtained by relator against the city.
    Submitted June 7, 1898.
    Writ denied June 8, 1898.

      Cutcheon & Swarthout, for relator.

      Humphrey S. Gray, for respondents.
   Per Curiam.

The relator obtained a judgment against the city of Ludington. He presented a demand to the common council for the payment of the judgment out of the funds then in the treasury. The return of the respondents shows that the moneys then on hand were raised and required for other purposes than the payment of judgments against the municipality. The proper course for the relator is to proceed under the statute requiring judgments so recovered to be spread upon the tax roll.

Mandamus denied.


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    SINGER v. LIVINGSTON CIRCUIT JUDGE. BAETCKE v. SAME.
    Bill of Exceptions — Settlement—Extension of Time.
    Under Circuit Court Rule No. 47, an ex parte order extending the time for settling a bill of exceptions, granted more than 80 days after entry of judgment, without cause shown by affidavit, is unauthorized. ®

      Mandamus by Anna Singer, and by Gustav J. Baetcke and another, respectively, to compel Stearns F. Smith, circuit judge of Livingston county, to vacate orders extending the time for settling bills of exceptions.
    Submitted June 7, 1898.
    Writs granted June 8, 1898.

      William P. Van Winkle and Judd Yelland, for relators.

      Dennis Shields and B. T. O. Clark, for respondent.
   Per Curiam.

In these cases, after the expiration of

more than 80 days from the entry of the judgments, the court entered ex j^arte orders extending the time to settle bills of exceptions. These orders were granted without any affidavits or notices of motions to the opposite side. The orders were without authority, under Cir. Ct. Rule No. 47, and Lake Shore, etc., R. Co. v. Branch Circuit Judge, 116 Mich. 399.

A writ of mandamus will issue in each case.


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    UNITED STATES LIFE-INSURANCE CO. v. MUSKEGON CIRCUIT JUDGE.
    Garnishment — Costs—Appeal.
    2 How. Stat. § 8098, provides that, if a-garnishee shall appear and make disclosure, he shall be allowed such a sum as the court shall think reasonable for his counsel fees and other necessary expenses. Held, that, a judge having fixed the costs at an amount which he deems reasonable, the Supreme Court will not interfere.

      Mandamus by the United States Life-Insurance Company to compel Fred J. Russell, circuit judge of Muskegon county, to allow relator, as garnishee defendant, its costs as claimed.
    Order to show cause denied June 8, 1898.

      Maher & Salsbury, for relator.
   Per Curiam.

The relator, as garnishee defendant, filed a disclosure, and was afterwards examined upon special interrogatories. After this testimony was filed in the cause, the attorney for the plaintiff informed defendant’s counsel that no further steps would be taken to hold the garnishee, but took no formal steps to dismiss the proceeding. Relator then appeared, and moved to dismiss the proceedings, which motion was granted. The court allowed relator an attorney’s fee of $15 and other costs. The object of this petition is to compel the allowance of a greater attorney’s fee. The judge acted under section 8098, 2 How. Stat., and, having fixed such costs as he deemed reasonable, thi^ court will not interfere.

Order to show cause denied.


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    WINEMAN v. WAYNE CIRCUIT JUDGE.
    Interpleader — Parties.
    It is proper, on. a bill of interpleader between the executor of an estate and others, to permit a legatee, not joined, to appear in the cause, upon his showing that he is largely interested in the result. j

      Mandamus byj Nancy Wineman to compel Willard M. Lillibridge, circuit judge of Wayne county, to vacate an order granting leave to Henry Wineman to appear in a cause wherein relator and others were made defendants.
    Order to show cause denied June 8, 1898.

      John J. Speed, for relator.
   Per Curiam.

The Wayne County Savings Bank filed a bill of interpleader against the relator and the executors of the last will and testament of Henry Wineman, deceased, to determine who was entitled to certain funds held by the complainant. Mr. Henry Wineman, a son of the deceased, filed a petition setting forth that he was interested as legatee, and asked to be made a party to the suit. An order was made permitting him to appear. The purpose of this petition is to obtain a writ of mandamus to set aside that order. We see no objection to his appearing in the case, inasmuch as he is largely interested in the result. !

Order to show cause denied.


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    HOLTON v. MOODY. WOLF v. HOLTON.
    1. Executions — Sale by Separate Parcels.
    2 How. Stat. § 6116, provides that at an execution sale of several known lots, tracts, or parcels of land, they shall be separately exposed for sale. Held, to contemplate a sale by lots or government additions.
    2. Same — Motion to Set Aside Sale.
    Where separate tracts are erroneously sold under execution as one parcel, the execution debtor may, by a motion in the same case, cause the sale to be set aside.
    3. Same — Unnecessary Appeal — Costs.
    Though an execution sale of land was set aside on the appeal of the execution debtor, the appellant was disallowed his costs, it appearing that Ms rights might have been as effectively, and more cheaply, protected by redeeming from the sale.

      Certiorari by Thomas Holton to review the action of Sherman B. Daboll, circuit judge of Gratiot county, in refusing to set aside certain sales of real estate upon executions issued against petitioner in suits instituted, respectively, by petitioner against Silas Moody, and by Martin Wolf against petitioner.
    Submitted June 7, 1898.
    Reversed June 14, 1898.

      Newell Leonard, for petitioner

      J. L. Potts, for Silas Moody.

      John T. Mathews, for Martin Wolf.
   Montgomery, J.

These two cases present substantially the same questions. It is sought in each to review by certiorari the action of the circuit court in refusing to set aside a sale of real estate on execution. In each case a large number of technical objections are taken to the proceedings, relating to the time and order of filing the return of the sheriff, and the evidence of posting notices, etc. It is enough to say that when the cases were before the court there was evidence that each step required to be taken by the sheriff was taken within the time required by statute, and that all the proceedings which are designed as safeguards to the rights of execution debtors were taken, unless it shall be held that the sheriff was in error in selling the land as one parcel, or that the plaintiff in certiorari has a right to complain that land occupied as a homestead was included in the sale.

Section 6116, 2 How. Stat., provides that when any real estate offered for sale by virtue of any execution shall consist of several known lots, tracts, or parcels of land, such lots, tracts, or parcels shall be separately exposed for sale, and no more of such tracts or parcels shall be exposed than shall appear necessary to satisfy the execution, with the costs and expenses of such sale.' In the case of Holton v. Moody the land sold consisted of a quarter section of land. In the Wolf Case the land sold consisted of the same quarter section, and another 20 acres of land adjoining it on the north, and another 60 acres separated from the quarter section by an intervening space of 1 chain and 39i links. This court never has determined whether, under this section of the statute, separate 40-acre tracts shall be sold separately, or whether contiguous tracts shall be treated as one parcel; at least, this has not been determined by construction of this section. In Geney v. Maynard, 44 Mich. 578, it was held that a party might so deal with parts of separate tracts as to constitute parts of two platted lots one parcel. See, also, Gleason v. Hill, 65 Cal. 17. In Larzelere v. Starkweather, 38 Mich. 104, it was held that the word “distinct,” as used in the statute relating to sales on mortgage foreclosure, means separate or different; not the same. The mortgage statute (2 How. Stat. § 8503) uses the term “distinct farms, tracts, or lots not occupied as one parcel.” This statute refers to “several known lots, tracts, or parcels.” We think there is a distinction between these two statutes which leads to the conclusion that section 6116 contemplates a sale of land by lots or government additions when a sale is made on execution. The failure to follow the statute is an irregularity which will not be fatal to a sale in collateral proceedings. Hoffman v. Buschman, 95 Mich. 538. But the execution debtor may, by a motion in the same case, cause the sale to be set aside. Cavenaugh v. Jakeway, Walk. Ch. 344, and cases cited in note.

There is a feature of this proceeding which we cannot permit to pass unnoticed. The appellant has appeared before this court in the proceedings out of which these judgments arise many times. The amount involved is trifling, and it is perfectly manifest that this appeal to the court is not made because appellant’s rights are jeopardized, as it would be much cheaper to redeem from the sales than to incur the expense of this court. For this reason, while we feel constrained to set the sales aside, the order will be made without costs in either court.

The other Justices concurred.


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    HATHAWAY v. MARQUETTE CIRCUIT JUDGE.
    Notice of Trial — Sufficiency.
    Under 2 How. Stat. § 7551, requiring “written notice of trial” to be served, a notice in proper form, signed “Attorneys for Plaintiff,” without giving the names, is insufficient, although personally served by one of the attorneys for plaintiff upon one of the attorneys for defendant.

      Mandamus by Frank W. Hathaway and others to compel John W. Stone, circuit judge of Marquette county, to strike a cause from the calendar.
    Submitted June 7, 1898.
    Writ granted June 14, 1898.

      Button & Culver, for relators.

      Chartes R. Brown & Son, for respondent.
   Moore, J.

The relators ask for a writ of mandamus to compel the circuit judge to strike from the circuit court calendar for the May term a case, for the reason that it was improperly noticed. The notice was in proper form, but was not signed with the names of the attorneys for the plaintiff. The omission to attach the signatures of the attorneys before the words “Attorneys for Plaintiff” was undoubtedly an oversight. The record shows that the service was made personally by one of the attorneys for the plaintiff upon one of the attorneys for defendants. The circuit judge returns that, upon the hearing of the motion, the attorneys for the defendants did not claim they had been misled by the notice, but simply claimed it was not a legal notice; and that as they had not been misled, but fully understood, from the notice and the manner and circumstances of its service, that the attorneys for the plaintiff would bring the cause on for trial, he denied the motion.

The only question involved is, Must a notice of trial, to be a legal notice, be signed with the name of the attorney, or party giving the notice? 3 How. Stat. § 7551, provides that “ written notice of trial * * * shall in all cases be served at least 14 days before the first day of the term,” etc. We think this statute requires such a notice as will, upon its face, show it to be a notice made by a person authorized to give the notice. It should be a notice that will inform the person upon whom it is served of that fact, — whether it is served personally, or by mail, or by leaving it at his office, where service in that manner is authorized. It is doubtless the purpose of the statute, requiring the notice to be in writing, to avoid disputes as to what it contained and as to its sufficiency. In Niles v. Ransford, 1 Mich. 338 (51 Am. Dec. 95), in writing of a notice of sale authorized by the statute, it is said:

“No conception can be formed of a legal notice which does not disclose on its face that it emanates from some person or court claiming to have the power to act in the manner indicated by the notice. It is this that gives to it its force, — that makes it a notice.”

In Rogers v. Hoskins, 14 Ga. 166, it is said: “A notice in the name of nobody is no notice.”

We think to follow the ruling of the trial judge would result in what the statute sought to prevent by requiring the notice to be in writing.

The writ will issue as prayed.

The other Justices concurred.


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    BARKER v. WAYNE CIRCUIT JUDGE.
    1. Receivers — Adverse Interest — Removal.
    A corporation, will not be removed as receiver of an insolvent corporation because one of the creditors of the insolvent is a stockholder, director, and president of the receiver.
    2. Same — Ancillary Proceeding — Hearing—Discretion oe Court.
    The fixing of the time when the petition in a matter ancillary to receivership proceedings shall be brought on for hearing is entirely within the discretion of the court.

      Mandamus by Jennett M. Barker to compel Willard M. Lillibridge, circuit judge of Wayne county, to remove the Union Trust Company from the position of receiver of the American Eagle Tobacco Company, and to vacate an order fixing the time of hearing upon relator’s intervening petition.
    Order to show cause denied June 14, 1898.

      E. T. Wood, for relator.
   Per Curiam.

The purpose of this petition is to compel the respondent to remove the receiver, and to vacate an order made May 14th, setting the case for hearing June 20th.

The removal of the receiver was asked because one of the creditors of the American Eagle Tobacco Company is a stockholder, director, and president of the receiver, the Union Trust Company. This is not sufficient cause for removal.

It was within the discretion of the circuit judge to fix the time for hearing. The proceeding of Mrs. Barker is ancillary to the main case, and it is within the discretion of the court to determine when such proceedings shall be heard.

The order to show cause is denied.


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    HOLLANDS v. WAYNE CIRCUIT JUDGE.
    Reference — Examination of Accounts.
    The court has the right, on its own motion, to order a reference, under 2 How. Stat. § 7378, subd. 1, of a case requiring the examination or taking of an account, unless a jury is demanded within 10 days after joining issue, although both parties do not desire such reference.

      Mandamus by William H. Hollands and others to compel Robert E. Frazer, circuit judge of Wayne county, to set aside an order of reference.
    Order to show cause denied June 14, 1898.

      Alexander D. Fowler, for relators.
   Per Curiam.

2 How. Stat. § 7378, subd. 1, provides for a reference of such cause unless a. jury is .demanded within 10 days. No jury was demanded, and, under the statute, the court had the right of its own motion to make the reference, notwithstanding both parties did not desire it.

The order to show cause is denied.


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    SILSBY v. LYLE.
    Street Railways — Extension Through Township — Consent op Authorities.
    1 How. Stat. § 3530, provides that a street-railway company desiring to extend its tracks through a township shall first obtain the written consent of the supervisor and highway commissioner, and confers upon such officers the power to impose regulations in reference to the location and operation of the road in the township. Held, that the refusal of such officers to consent to a proposed route is notreviewable in the courts.

      Gertiorari by George Silsby and Arthur H. Swarthout to review the action of Byron A. Snow, circuit judge of Saginaw county, in denying mandamus to compel James L. Lyle, commissioner of highways of Bridgeport township, to consent to a proposed railway route through said township.
    Writ denied June 18, 1898.

      Arthur H. Swarthout, for relators.
   Per Curiam.

The relators ask for a writ of certiorari to review the action of the circuit court denying the writ of mandamus to compel the respondent to consent to the proposed route.of their road through the township of Bridgeport. The reason given by the respondent for refusing his consent is his nonapproval of the route through the township. The circuit court refused the writ. The statute provides that street-railway companies may extend their roads through townships by the consent of the supervisor and highway commissioner, and the statute confers upon them the power to consent to regulations in reference to the construction, location, and operation of the portion of the road in the township. 1 How. Stat. § 3530. The power to locate the road is by this statute lodged in these township officials, and courts have not the power to review their action.

The writ is denied.


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    BECKER v. SAGINAW CIRCUIT JUDGE.
    Equity Practice — Time eor Taking Testimony — Extension on Cause Shown.
    The court may, in its discretion, extend the time to take testimony in a suit in equity, on the petition of complainant, where the reason given for failure to present the testimony at the proper time is that his solicitor had informed him that the court was not ready to take up the matter, and that such solicitor had left the State several months before, and had not returned.

      Mandamus by Oliver C. Becker and others to compel Eugene Wilber, circuit judge of Saginaw county, to vacate an order extending the time for taking testimony in a chancery suit.
    Order to show cause denied June 20, 1898.

      F. A. Rockwith and E. L. Beach, for relators.
   Per Curiam.

One Haack filed a bill in chancery March 2, 1896, against the relators. They appeared and answered March 9, 1896. Replication was filed March 25th. No demand to examine witnesses in open court was made. On February 21, 1898, Haack filed a petition for an order enlarging the time to take testimony, and setting forth as his reason for neglecting to introduce testimony at the proper time that his then solicitor informed him that the delay was due to the fact that the court was not ready to take up the matter, and that his said solicitor had left the State of Michigan several months before, and had not returned. The court entered an order granting the prayer of the petition. Relators ask to have this order set aside.

We think the circuit court acted within its jurisdiction, and exercised a proper discretion.

The order to show cause is denied.