text:
    MOORE v. MEADE.
    1. Brokers — Real Estate Brokers — Principal and Agent — Duty to Disclose.
    Where a real estate broker acted as the agent of both the seller and the buyer, it was his duty to disclose same to buyer, and also all the facts in his possession as to the value of the property.
    2. Same — Principal and Agent — Failure to Disclose — Fraud.
    Broker’s representation to the purchaser of a farm, for whom he was acting as agent, that the lowest price obtainable was $7,000, when in fact the price listed to him was $5,300, he to have all he obtained over that amount, if believed and acted upon, was a fraud upon the purchaser.
    3. Same — Fraud—Damages—Accounting.
    Where the evidence shows that the broker profited by the fraud to the amount of over $900, a decree in favor of the purchaser for that amount cannot be said to be excessive, on a suit for an accounting,

      Appeal from Allegan; Brown (William B.), J., presiding.
    Submitted January 20, 1921.
    (Docket No. 64.)
    Decided March 30, 1921.
    Bill by Myron B. Moore against Harry Meade, Nellie Meade, and Millie A. Simpkins to affirm a sale of real estate, and to enjoin an action at law. Defendant Simpkins filed a cross-bill to set aside said sale as fraudulent and for an accounting. From a decree for defendant Simpkins, plaintiff appeals.
    Affirmed.

      Charles Thew and Clare E. Hoffman, for plaintiff.

      Fidus E. Fish, for defendant’ Simpkins.
   Stone, J.

This case is here upon the appeal of the plaintiff from a decree dismissing his bill of complaint and granting relief to the defendant Millie Simpkins on her cross-bill. In the original bill of complaint filed October 8, 1919, the plaintiff stated that defendants Harry Meade and his wife Nellie on June 9, 1919, were in possession of a farm' of 80 acres in section 20, township- of Trowbridge, Allegan county, which they held under a contract from- one Wallace C. Blackman and wife, by the terms of which there was unpaid $4,732; and that said Harry Meade was dissatisfied with the general neighborhood and was desirous of selling his equity in said farm and moving away. That plaintiff was in the business at Allegan of buying and selling real estate, and also selling the same for others; that he had a customer, Millie Simpkins, who was “looking towards” the purchase of a farm and he called her attention to this property; that she could pay in cash only $750, but that she had a house and lot in Hopkins which she would turn in at $2,000, also a second mortgage on real estate of the value of $1,150; that the house and lot were not worth $2,000, nor was the second mortgage worth its face value. ' That thereupon plaintiff interviewed the said defendants Meade, told them the circumstances, and of the prospects of selling the farm to defendant Simpkins, and that she was insisting on turning in the property aforesaid and that probably the house and lot would not be worth more than $1,000; that defendants Meade thought it might be necessary to pay up the Blackman contract in full, or at least to pay a part thereon; whereupon plaintiff entered into a written contract with Harry Meade to “swing the deal.” By the terms of this contract plaintiff was to have all that he received for the farm over $5,800; that it was understood between the plaintiff and defendants Meade that they should “figure” the farm sold in that way to defendant Simpkins at $7,500 and insist upon said terms, if possible to make the sale on the same, but if impossible it was left to plaintiff to sell for a¡ less figure.

That pursuant to said agreement said sale and deal were made with Mrs. Simpkins and the contract paid down to a sum satisfactory to the said Blackman and wife, and their contract with the defendants Meade was duly assigned by them to Mrs. Simpkins, and said second mortgage and house and lot were turned in to plaintiff, and some moneys, and a full and complete settlement was made by the plaintiff and the defendants Meade; that no misrepresentations nor fraud were perpetrated by the plaintiff with regard to the transaction with said defendants Meade and Simpkins, but, on the contrary, the transactions were entirely completed and settlement made in regard thereto; that on or about July 1, 1919, the said defendants entered into a conspiracy to defraud the plaintiff, and the bill proceeds to allege a conspiracy between said defendants Meade and defendant Simpkins to frame a case against the plaintiff, whereby all of the defendants would obtain from him large sums of money by the bringing of suits for damages, by making false claims that the plaintiff had by misrepresentation induced said defendants Meade to sell the premises at the figure of $5,300, and that the defendant Millie Simpkins would bring her said action against the plaintiff based on falsely alleging that he had made misrepresentations to her in regard to the property, and conditions concerning said sale, and had induced her to convey her Hopkins property, and transfer her said second mortgage aforesaid; and that in pursuance of said conspiracy said defendants Meade had brought suit against the plaintiff' in the circuit court for the county of Allegan claiming therein damages accruing out of the said sale to the amount of $1,200.

The bill prayed that a decree might be entered affirming the sale as against the defendant Millie Simpkins, and declaring the said defendants Meade had no cause of action or complaint against the plaintiff, and that all the defendants be perpetually enjoined from bringing suit, or suits, against the plaintiff growing out of the transaction; and that the said defendants Meade be further enjoined perpetually from prosecuting the suit then pending against the plaintiff.

The defendant Millie Simpkins filed a separate answer in which she admitted that the plaintiff was in the real estate business and that he had conversation with her relative to the purchasing of the farm, admitting that she could pay only $750 in cash, and that she wanted to turn in a second mortgage of $1,150, and a house and lot for $1,500, and that the plaintiff claimed the said house and lot were well worth $2,000 and should, be turned in for that amount, and that she denied the said property was worth that amount. She denied all conspiracy, denied that there were no misrepresentations or fraudulent concealments on the part of the plaintiff, and charges the truth to be that said parties, plaintiff and defendants Meade, conspired together to defraud her out of a large sum of money, to wit, $3,860.

As affirmative matter in the nature of a cross-bill, and for the purpose of obtaining affirmative relief against the plaintiff, she alleged that on the 9th day of June, 1919, she was the owner of a house and lot at Hopkins, Michigan, and of a second mortgage in the sum of $1,100, with accrued interest of $50, and that she was the possessor of a certain amount of cash, about $750, as stated in said bill of complaint, and that she was desirous of purchasing a farm; that the plaintiff interviewed this defendant on numerous occasions and finally he told her that he could make a trade for her for the Blackman farm, and that he subsequently took this defendant to said farm and discussed a proposed deal with her in which she was to turn over to him $750 in cash, said mortgage and interest amounting to $1,150, and the house and lot which the plaintiff told her to put in at $2,000, although she desired to put it in at $1,500; that said deal was consummated on or about June 11, 1919, she signing a deed conveying said house and lot, paying over said cash, and assigning said mortgage, with the understanding that she was to receive a deed of said farm subject to a small mortgage; that none of said parties had ever told her what the farm would cost, nor had they told her of any amount of incumbrance, but led her to believe that she would become the owner of the farm subject to a small incumbrance; and that, relying upon the judgment of the plaintiff and on the representations made to her, she consummated the deal; that the plaintiff finally turned over to her the said Blackman contract with the assignment thereof by the defendants Meade to the plaintiff, and she was also given a receipt signed by said Blackman and wife for $1,132, paid by the plaintiff to said Blackman and wife, and which was understood to be credited on the principal sum owing according to the terms of said contract; that after she received said contract she examined it and found that the property, which had been sold for $4,732, had been conveyed to her at a valuation of $7,500; that she turned in $3,900 worth of property in the deal, putting the value of the house and lot at $2,000, and placing said house and lot at a valuation of only $1,500, she turned in only $3,400 for said contract ; that there is a credit of only $1,132 on the contract and that she is the loser in the transaction to the amount of $2,268; that this defendant, soon after said deal was consummated, learned of the fraud that had been perpetrated upon her and she went to the plaintiff and demanded a settlement, and had offered to turn back said contract and said receipt and demanded that her property be returned to her, which she has since learned had been sold, so that it was impossible for her to be put m statu quo. She avers that the plaintiff and defendants Meade had profited by said fraud and misrepresentation in a large sum. She prays that the injunction issued in the cause be dissolved, and that if it is impossible to restore the property she conveyed by reason of any sale of any of said property, then that a decree be entered in favor of this defendant and against the defendants Meade and the plaintiff, requiring them to pay her the fair and reasonable value of the property taken from her. The cross-bill concludes with a prayer for general relief.

The cause went to a hearing and a large volume of testimony was taken in open court, and, without filing any written opinion, the trial judge by decree dismissed the bill of complaint and awarded nominal damages of 6 cents and costs to the defendants Harry Meade and Nellie Meade upon their cross-bill, and awarded damages to the defendant Millie Simpkins in the sum of $900. It was adjudged and decreed that the plaintiff pay to the defendant Simpkins forthwith the sum of $900 as damages, together with her costs to be taxed. The damages awarded to the defendants Meade and their costs were paid, and that portion of the decree satisfied, so that we have to deal here simply with the claim of the defendant Millie Simpkins against the plaintiff. The plaintiff alone has appealed.

Many disputed questions, as between the plaintiff and defendants Meade, are not important upon this appeal, as those defendants have by their settlement under the decree dropped out of the case. No attempt has been made by counsel to comply with Rule No. 40 of this court, requiring a clear and concise statement of the facts of the case distinct from argument. This has added very materially to our labor in the case.

It appears to be the claim of the defendant Simpkins that the plaintiff was her agent in the negotiations for, and the purchase of this farm, and that it was not disclosed to her until after the entire trade was consummated that the plaintiff was acting also as the agent of the defendants Meade, and was to receive all that he obtained by such sale exceeding the sum of $5,300. This claim, it appears, is denied by plaintiff, who, in a general way, says that Mrs. Simpkins knew all about the entire arrangement. He, himself, testified that “she asked me the price and I told her somewhere about $7,500.” He took Mrs. Simpkins out to the farm, which was some distance from her home, and where she appears to have been unacquainted, and it is a significant fact that a careful reading of the testimony in the case discloses that Mrs. Simpkins, personally, never made any trade or negotiations with defendants Meade about the purchase of their equity in this farm. The general trend of the testimony is that the negotiations were carried on by and between the plaintiff and the defendant Harry Meade, and save on one occasion when she attempted to get some tools and straw in the trade, she seems to have had little or nothing to do with the negotiations. It is not disputed by the plaintiff that he was the agent of the defendants Meade in this transaction. He is a member of the bar of Allegan county, and has for a number of years been largely interested in dealing in real estate and loaning money, in connection with the-practice of his profession. On the visit to the farm the plaintiff and Mrs. Simpkins were accompanied by her daughter Madge, who is about 17 years old. She testified that her mother asked Mr. Moore “How much is this farm worth?” and he said about $7,000, and later she testified in this manner:

“Why, on the way out he said they wouldn’t take less than $7,000, he didn’t think, and after they got out — after they had been talking under the trees something about they wanted $7,500. * * * Moore said that to my mother, * * * said they would not take any less.”

There is a great conflict in the testimony in this case and the parties are a long way apart as to what the actual fad® were. We shall not here attempt to analyze the very conflicting testimony in the case. One important question is, Was the plaintiff the agent of the defendant Simpkins in the purchase of the Meade equity in the farm? He testified that he was the agent of the defendants Meade.

Was there a double agency, and if so, was there a secret profit to the plaintiff, which was not disclosed to the defendant Simpkins? This was a disputed matter upon the hearing. The house and lot were sold by the plaintiff, for $1,050 within a few days. We are satisfied that the plaintiff gave Mrs. Simpkins to understand, and that she did understand, that he was representing her in the negotiation and trade and was looking after her interest. We are also satisfied from the evidence that she did not know until the trade was closed and consummated, that the plaintiff was to have all he could get over and above $5,300 for the farm.

How much did plaintiff get out of the transaction? The following extract from the testimony of the plaintiff on redirect-examination throws some light upon this question:

“Q. You testify you got about this second mortgage out of the deal for yourself?
“A. Approximately. A little less. I got this mortgage, $1,150. I got $1,050 out of the house, and $750 cash. I paid out to Blackman $1,132 and that would leave $1,818. I paid the bank $426; taxes $40.40, Bailey $21, and $19 Mead owed me, and a note for $123.60 he owed me. I paid her $16 of rent and allowed her $8 which she collected. * * * All I have got left is this second mortgage, and these amounts will leave less than the sum of $1,150, amount of the second mortgage. I have figured nothing for my time or my expenses or anything.”

In his cross-examination he answered:

“If the second mortgage is paid I. have made that amount.”

Whereupon the following language was used by the court:

“Judging from the last question there seems to be some misunderstanding. On the Blackman contract the plaintiff paid $1,132. He paid at the bank $426. He paid taxes, $40.40. He paid interest on a mortgage, $21, a note of $19, and a note of $120 and $3.60 interest. All that together would be $1,762, not including $16 rent which would make $1,778. On the other hand, there is a $1,150 mortgage; $1,050 house and lot, and $750 cash, which would be $2,950. $1,778 subtracted from $2,950 would leave $1,172.”

It should be said in explanation of the foregoing that these transactions at the bank were amounts owing by the defendant Harry Meade, which the plaintiff had become responsible for, also for the payment of certain other items embraced in the above.

We are strongly impressed by the testimony that the plaintiff made Mrs. Simpkins believe he was acting for her, was going to help her make a good bargain, and get a good price for her house, not disclosing to her that he was in fact the agent of the Meades, too, and the terms of such agency. She had confidence that he was. her friend in the transaction, she trusted him, took his word as to what the farm was worth, and was being turned in at, making no inquiry to learn its value. Not only the testimony of Mrs. Simpkins, but that of her daughter and the trend of the other testimony unmistakably point to the fact that hei made her think he was her agent and working in her interest. If he was acting as her agent and was at the same time Meades’ agent, it was his duty to disclose to her every fact about the farm that he knew, and nothing should have been withheld from her as to the price paid. Even if he was not her agent, he should not misrepresent to her the amount that the property, to wit, the farm, was being put in at in the deal, because this, was an important factor and undoubtedly influenced the sale.

We are compelled to reach the conclusion in this case that the plaintiff represented to Mrs. Simpkins that he would help her to buy this, farm, and it is equally clear to us that he did not disclose to her all he knew about the farm, its value, what it was bought for and how the title stood, what the Meades would sell it for, nor that he himself was to get all over $5,300. If he was her agent that was his duty.

In Hogle v. Meyering, 161 Mich. at p. 472, we held that the law will not permit an agent to act in a dual capacity in which his. interest conflicts with his duty, without a full disclosure of the facts to his principal; and that a broker employed to effect an exchange of real property will not be permitted to retain a secret profit. “The law will not permit a man to act in a dual capacity, and the two positions of principal and agent are inconsistent with each other.” See cases cited on pp. 484, 485 of the above case; 6 C. J. p. 686; 21 R. C. L., title “Principal and Agent,” §§ 11, 12, 13.

The representation, if made by the plaintiff, that Meades price was $7,000, that that was the lowest price obtainable, when in fact the price listed to him was $5,300, was a fraud upon Mrs. Simpkins if she relied upon his representations, which she claims she did. Hokanson v. Oatman, 165 Mich. 512 (35 L. R. A. [N. S.] 423). The headnote of that case reads as follows:

“A broker, who represented to one negotiating with him to purchase a farm that the owner’s price was $1,200 and that was the lowest price obtainable, when, in fact, the price at which the owner listed the land was $900, is liable for the difference, in assumpsit, to the purchaser who relied on the representations.”

See, also, Wegner v. Herkimer, 167 Mich. 587; Allen v. Talbot, 170 Mich. 664; Pratt v. Allegan Circuit Judge, 177 Mich. 558; Merlau v. Kalamazoo Circuit Judge, 180 Mich. 893; Haener v. McKenzie, 188 Mich. 27, 34, and cases there cited; Hillier v. Carpenter, 206 Mich. 594; 12 R. C. L., title "Fraud and Deceit,” §§ 49, 50.

Defendant Simpkins is not asking for a rescission of the trade, it appearing that the house and lot have been disposed of, but the court below granted her, upon her cross-bill, by way of compensation or damages the sum of $900. Was that amount excessive? We think not, if she was entitled to recover any sum. It appears that the house and lot were sold finally for $1,050. Putting that property at that sum, adding to it the cash, $750, the second mortgage, $1,150, the amount unpaid on land contract, $3,600, would make $6,550 as the price paid for this property. The testimony as to the value of this property varies from $4,500 to $7,500. the said defendant mortgage was wor A conservative price would be $5,500. Even at those figures the amount awarded is not excessive. That the second ;h its face value we think clearly appears by the testimony. The property had sold for $4,000; there was |a $1,400 mortgage ahead of this. The testimony shmjvs that the interest has been kept paid upon this mortgage, and it is a valuable asset. There is so much Of conflict in the testimony of this case that we have been slow to reach a conclusion as to what is just and equitable between these parties. Our final opinion i's, after a careful consideration of the case, that the irial judge who saw and heard the witnesses testify di!d, by his decree, reach a reasonable sum to be awarded! to the defendant Simpkins.

We have not overlooked the claim of the plaintiff that the testimony of defendant Simpkins differed in some respects from the allegations, in her cross-bill, but, under the circumstances disclosed, do not think that she is thereby prevented from recovery.

T,he decree below will stand affirmed, and the defendant Simpkins will recover her costs against the plaintiff.

• Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    NATIONAL CASH REGISTER CO. v. PAUL.
    1. Chattel Mortgages — Conditional Sale — Cash Register.
    A contract for a cash, register “for which undersigned agrees to pay you $550 in 22 monthly payments of $25," attached to which was an affidavit recited to be “in behalf of the purchaser,” and the note for the- payment of which was an absolute promise to pay, was in its nature a chattel mortgage, although title was reserved in the vendor until payment of the purchase price and taxes, evidently with the intent of giving the vendor the option of treating it as a chattel mortgage or a conditioal sale.
    2. Same — Void as Against Bona Fide Purchaser.
    Where said contract was not recorded as a chattel mortgage, it was void as against a purchaser from the vendee for a valuable consideration without notice of the terms and conditions of the contract of sale, although the vendee had never paid anything on said contract.
    Error to Wayne; Webster (Arthur), J.
    Submitted February 2, 1921.
    (Docket No. 134.)
    Decided March 30, 1921.
    Replevin by the National Cash Register Company against Ralph C. Paul for the possession of a cash register. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Clark, Emmons, Bryant, Klein & Brown (Bela J. Lincoln, of counsel), for appellant.

      Joslyn & Perry, for appellee.
   Stone, J.

This case is before this court on writ of error by defendant, to review a judgment for the plaintiff in an action of replevin to recover the possession of a certain cash register. The case was tried at the circuit by the court upon the following agreed statement of facts.

“First: On April 4, A. D. 1919, the National Cash Register Company agreed to sell to M. L. Lasley, under a certain so-called Conditional Sale Contract, cash register No. 852 E. L. 1672409 for five hundred fifty dollars ($550.00), payable in monthly installments; that said cash register was delivered to the said M. L. Lasley by the said the National Cash Register Company.
“Second: That the contract between the said the National Cash Register Company and the said M. L. Lasley was in the words and figures as follows:
“ ‘City, Detroit, County, Wayne, State-, Michigan. The National Cash Register Company, Dayton, Ohio, date April 14, 1919. Please manufacture, and ship freight prepaid, to 23 E. Elizabeth St., Detroit City, Wayne County, Michigan State, or to the nearest' railroad station, 23 E. Elizabeth St. one of your No. 852 E. L. 1672409 registers * * * ' for which undersigned agrees to pay you as follows: $550 in 22 monthly payments of $25, undersigned to- give you his promissory note for $550 payable in similar payments as collateral security for such payment. Five per cent, discount allowed for cash settlement on arrival of register, but no discount allowed on credit for exchange registers, or on autographic registers. Upon refusal of undersigned to accept the register when tendered, or to make any cash payment, or to execute and deliver the note, or make any payment provided for therein; you, or any person authorized by you, if you so elect, may immediately repossess the register, and retain, as rental for use of said register, all payments theretofore made. Should the register get out of order from ordinary use within one year from shipment, you will, without charge, repair it, provided undersigned pays the transportation charges on it to and from the factory, or nearest agency able to make repairs, or traveling expenses of repairman. Undersigned to pay fqr any repairs made without authorization, and toi pay all taxes on the register, and in event of default, to reimburse the company to full extent of taxes paid by it. The register shall remain your property until the price is paid in full. I hereby authorize Edw. T. Kelley to make and annex hereto in my behalf the affidavit hereto attached relative to the consideration recited herein. This contract covers all agreements between the parties,, and shall not be countermanded.
(Sign here.) “‘M. L. Lasmsy,
“ ‘This contract filled with register No. 842 E. L. 1672409.
“‘B. T. Kelley, Sales Agent.
“‘E. T. Kelley, Closing Salesman.
“‘E. T. K. No. 5 Salesman Credited.
“ ‘The State of Michigan, ss County of Wayne,
“ ‘Edward T. Kelley being first duly sworn, deposes and says that he is making this affidavit in behalf of the purchaser in the attached instrument at such purchaser’s reauest; that he has knowledge of the facts, and that the same was given in good faith for the purpose therein set forth. ,
“ ‘Edward T. Kemey.
“ ‘Sworn to before me and subscribed in my presence this 14th day of April, 1919.
“ ‘Ralph W. Thompson,
' “‘Notary-Public, Wayne County.
“ ‘My commission expires Feb. 10, 1928.’
“Third: That the said contract so entered into was not recorded as a chattel mortgage, or otherwise, and that Lasley never paid anything on the contract, although he received the register.
“Fourth: That on May 20, A. D. 1919, M. L. Lasley sold the said cash register to Ralph C. Paul, the defendant herein, for a valuable consideration the said Ralph C. Paul having no notice of the terms and conditions of the contract of sale.
“Fifth: That the said Paul refused upon demand to deliver the said register to the National Cash Register Company, and that the National Cash Register Company replevihed the said register, and now has it in its possession.
Sixth: That the damages of the National Cash Register Company, because of the unlawful detention of said cash register, is the sum of one hundred dollars ($100.00).
“Seventh: Promissory note.
“ ‘City of Detroit, County of Wayne, State of Miebigan.
“ ‘Date April 14th, 1919.
“For value received I promise to pay to the order of tbe National Cask Register Company, five hundred fifty dollars ($550.00) at Dayton, Ohio, in monthly payments, payable as below:
1 month after date $25.00
2 months after date $25.00.
3 months after date $25.00, to and including 22 months after date.
“ ‘It is agreed that default in the payment of any of the above payments shall, at the option of the holder hereof, render the unpaid balance of this note immediately due and payable. This note represents monthly payments only — not price of register.
(Here style and register No.)
(Sign here) “ ‘M. L. Lasley.
“ ‘General use except in Ark., Conn, and 111.’ ”

The trial court found the facts as above stipulated, and the findings of law were as follows:

“1. I find the agreement set forth in paragraph second of the above stipulation to be a conditional sale agreement.
“2. I find that plaintiff is entitled to a return of the cash register in controversy, with one hundred dollars .($100.00) stipulated damages for the detention.”

To which findings of law defendant duly excepted. Judgment for plaintiff in the usual form in replevin was entered.

By his assignments of error defendant avers that the court erred:

(1) In holding the agreement set forth in the stipulation of facts to be a conditional sale agreement, and not a chattel mortgage.

(2) In holding said agreement valid, as against this defendant, without recording as a chattel mortgage.

(3) In entering judgment for plaintiff upon the ground that the said agreement did not have to be recorded.

The sole question in this case is whether the instrument in question is a pure conditional sale contract, reserving title in the plaintiff, or is an absolute sale reserving a! lien by way of security, that is, a chattel mortgage.

It is the claim of the defendant that the contract and promissory note amount to a chattel mortgage; that they do not evidence -a pure conditional sale, and hence that the instrument should have been filed for record as provided by the statute relating to chattel mortgages, in order to be valid against this defendant. It is urged in argument by defendant that this court has held that it is the intention «of the parties in such a case which must govern, that if the parties, have, as a matter of fact, intended a security only, notwithstanding the fact that they have used the language of a pure conditional sale, the real intention of the parties will be given effect and the agreement held to constitute a chattel mortgage, and counsel cite as controlling the cases of Young v. Phillips, 202 Mich. 480, and same case on rehearing, 203 Mich. 566, and the cases there cited; also the earlier case of Choate v. Stevens, 116 Mich. 28 (43 L. R. A. 277), and the cases there cited.

A comparison of the contracts.in the Choate Case and in the instant case is made, and their similarity shown. It is also pointed out by counsel for defendant that the contract provides that notwithstanding the default of the vendee, and the retaking of the register by the vendor, yet the vendee is to reimburse the vendor “to full extent of taxes paid by it” and the register is to remain the property of the vendor until the price named in the contract is paid in full, which without any question would be held to include such taxes. In other words, title is sought to be retained not only to secure the vendor in the payment of the purchase price, but as security for the reimbursement to it of any taxes which it may have paid on the register. It is said this would seem to be important in discovering the real intention of the parties. It is also pointed out that the contract also includes a provision authorizing the sales agent of the vendor to make an affidavit annexed in behalf of the vendee, and attached to the contract, also, is such affidavit. Why, it is asked, is that affidavit attached to this contract and why was it so careful to provide an authority in the vendor’s sales agent to execute such affidavit? The inclusion of such a provision, and such an affidavit, it is said, is utterly foreign to a conditional sale contract, and it is urged that it should be taken into consideration by the court, with the other circumstances, in arriving at the real intention of the parties when the contract was made. It is said that another significant fact is, that the promissory note which was given by Lasley does not contain a reservation of title, but is an absolute unconditional obligation. It is urged with much force that if the promissory note constitutes an absolute debt, then the title to the property vests in the vendee; and in view of the fact, that the promissory note was wholly without condition, and did not contain the reservation of title, it was therefore an absolute unconditional obligation, that is, an absolute debt, and title to the property passed to the vendee at the time of the execution of the instrument.

On the other hand it is the claim of the plaintiff that the case is one of conditional sale pure and simple, and that the judgment of the circuit court was correct, and should be affirmed, and the following cases are cited in support of the claim: Dewes Brewery Co. v. Merritt, 82 Mich. 198 (9 L. R. A. 270); Thirlby v. Rainbow, 93 Mich. 164; Wright v. Traver, 73 Mich. 493 (3 L. R. A. 50) ; Bunday v. Columbus Machine Co., 143 Mich. 10 (5 L. R. A. [N. S.] 475); Atkinson v. Japink, 186 Mich. 335; Toledo Scale Co. v. Gogo, 186 Mich. 442 (Ann. Cas. 1917E, 601); Owen & Co. v. Keller, 206 Mich. 555.

It is said by counsel for plaintiff that the instant case is “on all fours” with the opinion in the Gogo Case. We have examined these cases and do not think them controlling here.' We have examined the agreement in the Gogo Case, and find that it differs from the agreement in the instant case in many particulars. For instance, in that case the agreement contained-the following significant.clause:

“The undersigned shall hold said scale at his own risk pending the vesting of title in him and no injury, loss or destruction of same shall release him from this absolute obligation to pay said purchase price.”

In the recent case of Luce v. Stott Realty Co., 201 Mich. 587, we looked into the contract and accompanying papers, and the surrounding circumstances, to determine the nature of the agreement, and held that the transaction amounted to a sale, with reservation of the title as security for the indebtedness. And we said:

“Whether a sale of personal property is absolute or conditional depends upon the contract of the parties. Atkinson v. Japink, supra; Holcomb & Hoke Manfg. Co. v. Cataldo, 199 Mich. 265. In the above cited cases we held that title was retained in the property for security merely. * _* *
_“As was said in Chicago Railway Equipment Co. v. Merchant’s Bank, 136 U. S. 268, 280 (10 Sup. Ct. 999): * * *
“ ‘The, fact that, by agreement, the title is to remain in the vendor of personal property until the notes for the price are paid, does not necessarily import that the transaction was a conditional sale.’
“See, also, Harkness v. Russell, 118 U. S. 663 (7 Sup. Ct. 51).”

In the instant case there are present the elements of a bill of sale, with notes as collateral .security as in the case of Young v. Phillips, supra. Lasley gave an order for the manufacture and shipment to him of a cash register .“for which undersigned agrees to pay you $550 in 22 monthly payments of $25.” This is not the language of a bailment, but of a purchase. Add to this the clause relating to the affidavit, “in behalf of the purchaser,” and the fact that the notes were absolute promises to pay and we have the “earmarks” of an absolute sale. It is true that we find present in this contract not only an evident attempt to make an absolute sale, but at the same time an attempt to put the transaction in the form of a conditional sale, so that the vendor can take either position. In other words, an attempt “to ride with the hunter and run with the hounds.” But taking the entire contract and proceeding into consideration we are of the opinion that we have a case of chattel mortgage, and not of conditional sale. As this court said in People v. Newman, 99 Mich. 148:

“The retention of the title to the thing sold until paid for is not unusual where a purchase and sale are actually intended.”

Counsel for plaintiff quote the language of this court in the Keller Case. We invite attention to the agreement in that case. It was a lease, and nowhere can be found any words of bargain and sale, and is thus clearly distinguished from the instant case. We are of opinion that judgment should have been entered for the defendant, for the reasons here stated.

The judgment of the circuit court is reversed, and a new trial granted, with costs to appellant.

Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    GILLMETT v. TOURCOTT.
    1. Infants — Sale of Personalty — Fraud—Rescission.
    An infant may, for fraud in the inception of a contract, rescind the purchase of personal property before reaching majority, and especially where the contract cannot be for his benefit.
    2. Same — Deeds—Real Estate — Gift from Infants to Mother Void.
    Where a deed from infants to their mother was a gift it was manifestly and necessarily prejudicial to them and therefore void, and could be disaffirmed by them before reaching their majority.
    3. Guardian and Ward — Partition—General Guardian — Judicature Act.
    Under the judicature act (3 Comp. Laws 1915, § 13258 et seq.), the general guardian of infants has authority to bring proceedings to set aside a void deed from them and for partition of their undivided interest in the real property and personalty, and for an accounting for rents, issues, and profits.
    4. Infants — Deeds—Void Deed — Partition—Liens—Modification of Decree.
    Where a deed from a mother and minor children to defendant was void as to the interest of the minors, but valid as to the interest of the mother, the decree adjudging defendant husband and wife to be indebted to plaintiffs will be modified to exclude the wife, she not being a purchaser, and also limiting the lien on defendants’ property to such real and personal property as came into possession of defendant husband in the transaction in question, and the mortgage given back by him to secure the purchase price will be reduced one-half and stand as a lien upon his undivided one-half interest in said property.
    Appeal from Newaygo; Barton (Joseph), J.
    Submitted January 18, 1921.
    (Docket No. 99.)
    Decided March 30, 1921.

      Bill by Lloyd R. Gillmett and another, infants, by Bessie M. Gillmett, their guardian, against Michael Tourcotfc and others for a partition of certain real and personal property, for an accounting for rents, and to enjoin removal or waste.- From a decree for plaintiffs, defendants appeal.
    Modified and affirmed.

      William J. Branstrom (William K. Clute, of counsel), for plaintiffs.

      John G. Anderson, for defendants.
   Stone, J.

The bill of complaint herein was filed to- obtain a partition of the undivided one-half interest of Lloyd R. Gillmett and Mabel Gillmett, two minors, in a 15 acre parcel of land in Newaygo county, upon which stands a hotel property, together with the furnishings of the building for its use for dwelling house and hotel purposes; also for an accounting for the rents, issues and profits of the said premises from Michael Tourcott, the occupant of such undivided half interest, during the period of his occupancy. The bill further prays that, if a physical division is. impracticable, the said property, real and personal, be sold under the decree of the court, and the proceeds divided, according to the rights of the parties therein to be determined by the decree. Further, for a temporary injunction to restrain removal or waste of the personal property pending the suit. The bill also contains a prayer for general relief.

Prior to 1913 the father of Bessie M. Gillmett made a gift of $4,000 to her and her three children, the plaintiffs herein, and Viril Caplan (formerly Viril Catlett, a daughter by a former marriage). On June 12, 1913, the mother, Bessie R. Gillmett, invested $800 of this money in the purchase of the land in question, taking the deed to herself and the three children above named. She afterwards built a’ hotel on the premises at an additional expense bf over $2,200. When the hotel building was. finished, it was furnished at an expense of upwards, of $750. The property was occupied by Mrs. Gillmett and her three children, and each owned an undivided one-fourth interest therein.

These investments were all made from said fund of $4,000. The mother and children lived in this house until 1916 as a home. The daughter Viril had reached her majority, had married, and later removed to Cleveland, Ohip. Some time prior to September, 1916, Mrs. Gillmett had in mind making a • deal to dispose of the property to some Chicago parties, and she asked the three, children to deed the property to her, which they all did. Viril being of age deeded her undivided interest to her mother on March 31, 1915. The deed from the two minor children, Lloyd R. and Mabel, to their mother was executed and delivered May 10, 1915. Mabel was 16 years of age in August, 1920, and Lloyd was 18 years of age in April, 1920, which would make their ages 10 years and 13 years, respectively, when they gave the deed to their mother. The two deeds were duly recorded April 27, 1916, which was nearly five months before any talk of dealings was had with the defendant Tourcott. Neither of these children, was paid anything for the said deeds.

In September, 1916, there were negotiations between Bessie M. Gillmett, the mother, and defendant Michael Tourcott about his purchasing the property, which resulted in a sale of it to him by warranty deed executed by Mrs. Gillmett, dated September 26, 1916, for a consideration of $3,000. He paid to her $500 in cash, and on the same day gave her a mortgage for $2,500 on the same property to secure the payment of the balance. This deed was recorded March 20, 1919, and the mortgage was recorded October 4, 1916. It contains a provision that it “cannot be foreclosed until November 1, 1921.” It provided that $500 payments were to be made on November 1st of the years 1917, 1918, 1919, 1920 and 1921. This mortgage was assigned by Mrs. Gillmett to her daughter, Viril Caplan, oh September 2, 1919, recorded September 8, 1919. Mrs. Caplan is named as defendant because, of such assignment.

When the deed was delivered to defendant Michael Tourcott in September, 1916, he and his wife, Marguerite, took immediate possession of the property both real and personal, and so continued to the time of the filing of the bill herein. When they took possession the hotel building and its furniture and equipment were in good condition. The building was erected and furnished with new furniture in 1913. There were 14 rooms in all, with 8 sleeping rooms all furnished. The barn was insured for $100 and the hotel building for $750. At the time Mrs. Gillmett deeded to the defendant Tourcott she was not at all familiar with business.affairs, or the law with reference to the rights of infants in, property or how it should be managed. The testimony discloses that before deeding the property she had expressed to defendant Tourcott some doubt as to the validity of the deed from the two minor children to herself. She testified to the following conversation wittih defendant Tourcott in September, 1916, before the deed was executed:

‘When I got the abstract ready, and got it back from White Cloud, I told Mr. Tourcott about it. I was worried that maybe those deeds wasn’t right. I said perhaps I had to go to some lawyer and see about it, those deeds of the children to me weren’t right and he says, ‘Never mind, Mrs. Gillmett, if you give me a warranty deed that is all I ask of you.’ I told him how old the children were, he knew that, seen them every day. He never asked me to have the children sign the deed. * * * I showed Mr. Tourcott the abstract of the title. * * * We had it there and I told him all about it, but he didn’t read it because he can’t read or write. His wife was there, and. after he was gone the abstract was lying, on the table. * * * I told him all about what was in it, how the children had deeded it to me. I thought the deed wasn’t good, and I asked him if I should go- to White Cloud and look it over with some lawyer, and he said: ‘Why, Mrs. Gillmett, if you give me a warranty deed, that is all I ask of you.’ He wouldn’t say anything then about the children arriving at age, but later on, a year after, when the interest came due, and the payment, well, then he wrote me a letter, and you have got the letter. At the time I gave Mr. Tourcott a deed he paid me $500 and gave me a mortgage back for $2,500. He would not pay the children anything; they have never received anything for their interest in the personal property. I never paid the children anything for their interest, in the property. * * *
“I did not talk to the children about the sale of the property — when I fixed this deed up the children were out playing, and I had them come in, and deed it over to me, and they didn’t pay any attention to it. We didn’t fix it up for Mr. Tourcott’s deal at all. The deed from Lloyd and Mabel was made on the 10th day of May, 1915, and I sold to Mr. Tourcott on the 26th day of September, 1916.”

Mrs. Gillmett was corroborated in this, testimony by that of the daughter Viril Caplan.

Subsequently defendant Tourcott became informed of the infirmity of the deed from the two minor children to their mother, and he asked Mrs. Gillmett to perfect his title. Later Mrs. Gillmett was appointed guardian of the children in Ohio, and made and tendered a deed to defendant Tourcott. Upon that subject she testified:

“Q. Before the 26th of September, 1916, weren’t you the guardian of Mabel and Lloyd Gillmett?
“A. No, sir.
“Q. I will ask you if you didn’t make a deed as the guardian of them at that time?
“A. No, sir, I didn’t.
“Q. When did you make a deed?
“A. Well, it must have been nearly two years after that.
“Q. Now, Mr. Tourcott told you that that deed that you sent him from Ohio was not a good deed, too, didn’t he?
“A. Yes. He told me he laid it on the shelf and said it was no account.
“Q. And then you applied here to this probate court for a guardianship?
“A. I had already applied before that because my attorney there found he wasn’t in the right, and he said: ‘Why that deed you sent them — Mr. Tourcott, wasn’t no account, and we have got to go through the Michigan laws here for you to become guardian of these children.’ I did get a license to sell the property, and we can show it.”

Finally Mrs. Gillmett offered Tourcott a good and valid guardian’s deed of the interests of the two minor children, which he refused to receive and make his past due payments. From this time on defendant Tourcott seems to have adopted “a dog in the manger policy,” and would neither accept a good deed nor pay for the property, claiming that he could hold the property until the younger of the minors became of age, making no payments, neglecting repairs, letting the taxes go by default, paying no insurance, upon the pretext that the two infants could not disaffirm their deed to their mother until they had both arrived at their majority, and that their guardian, duly appointed by the probate court of Newaygo county, was as helpless in their behalf as they were themselves.

There was very little conflict in the evidence upon the hearing. The trial court found that the equities were with the plaintiffs, and found and decreed that since about October 1, 1916, said Michael Tourcott had been in actual possession and occupancy of the said real and personal property, .and that the fair rental value of said premises was $25 per month, one-half of which rental plaintiffs were entitled to recover from said defendants; that the deed to defendant Tourcott, so far as it affected the said infants’ undivided one-half of said property was null and void; that the property could not be divided without manifest injury to the parties interested, and that in order to do equity in the premises it was necessary that said property, both real and personal, be sold, and the proceeds thereof divided among such parties as may be entitled thereto, according to their respective rights and interests; it was ordered and decreed that all of. said real and personal property, describing it, be sold at public auction to the highest bidder by a circuit court commissioner of said county, and that due notice of the time and place of such sale be given in the same manner as is provided by law on sales of real estate by sheriffs on execution; that the said infants were the owners in th.eir own right of an undivided one-half interest in and to said premises by an estate in fee simple, and that they were also the owners in their own right of an undivided one-half interest in and to the furnishings, equipment and personal property in said hotel obtained by said defendant from said Bessie M. Gillmett . on September 26,1916, and that said defendants Tourcott were the owners of the remaining undivided one-half interest in said property, subject, however, to a real estate mortgage which appears of record in the office of the register of deeds of said county in liber 84 of mortgages on page 553 — being the mortgage herein described.

It was further adjudged and decreed that the said Michael Tourcott and Marguerite Tourcott were indebted to the said plaintiffs in the sum of $5.25 as rental of plaintiffs’ interest in said real estate and personal property, since September 26, 1916, and that plaintiffs, have a lien on all the real and personal property of said defendants Tourcott until the said sum was fully paid and satisfied. The decree also restrained defendants Tourcott from injuring, removing, selling or disposing of any of the real or personal property involved. From this decree the defendants Tourcott have appealed, and they invoke the rule that a conveyance of real property by an infant cannot be avoided by him until he becomes of age, citing Shreeves v. Caldwell, 135 Mich. 323 (3 Ann. Cas. 592), and many decisions in other jurisdictions, and many text books.

It should be borne in mind that this case involves both real and personal property and that no consideration passed to the plaintiffs, but that the deed to their mother was really a gift. The plaintiffs ask that the deed in question be disaffirmed by the court. They concede the general rule invoked by the defendants, but claim that this rule of law will yield to special circumstances, such as are shown here, involving bad faith, fraud, undue influence, or improper advantage taken of the infants in procuring such a deed; that it is a rule in equity jurisprudence that the chancellor will look with a jealous eye over the estates of infants and guard them against all forms of artifice, fraud or undue advantage whatsoever, taken or devised to cheat them out of their property; that the rule which requires an infant to wait until attaining majority before affirming or disaffirming his. deed must yield in the presence of fraud and waste practiced by the grantees in such conveyance of land and personal property, in the same way that such general rules of law yield in many other respects where the principles of equity jurisprudence are invoked; and that the chancellor, in the exercise of a sound discretion, may disaffirm the conveyance for them. It is urged that while every man is presumed to know the law, yet equity will yield to the universality of that principle, and give relief to a victim of the effects of its operation, where fraud and undue influence have been practiced, or a mistake occurs with reference to private property rights. Or where the conveyance is brought about through ignorance or mistake of law and fact as to such rights, and that the rule which applies to adults equally applies as to infants. Many authorities are cited, including 2 Pomeroy Equity Jurisprudence (4th Ed.), §§ 841 to 854, (especially 849) and cases cited.

It is well settled in this State that an infant may, for fraud in the inception of the contract, rescind the purchase of personal property before reaching majority; and especially where the contract cannot be for his benefit. Bloomingdale v. Chittenden, 74 Mich. 698; Stoll v. Hawks, 179 Mich. 571 (51 L. R. A. [N. S.] 28); Patterson v. Kasper, 182 Mich. 281 (L. R. A. 1915A, 1221). There is much force in the claim of plaintiffs that there can be no difference, in principle, in the law of rescission for fraud, mistake, or undue influence whether the property involved is chattels or land; neither is there any difference in equity whether the advantage is gained through fraud or mistake, or through undue influence, undue advantage of illiteracy, ignorance of childhood, especially where the transaction cannot benefit the infant.

In 14 R. C. L. § 18, title “Infants,” appears the following:

“The infant is therefore given protection from immediate loss, by giving him the right to re-enter on the land, and take its rents and profits; but he cannot finally retransfer the title until he reaches his majority. He can, however, bring an action during his infancy to set aside the deed,” citing Harrod v. Myers, 21 Ark. 592 (76 Am. Dec. 409); International Land Co. v. Marshall, 22 Okla. 693 (98 Pac. 951, 19 L. R. A. [N. S.] 1056).

Turning to the Harrod Case, at page 600, we find the following language:

“There is some diversity in the books, as to the proper time of avoiding the deed of an infant; some cases intimating that it cannot be done till the infant arrives of age; some that the disaffirmance should be before that period, from analogy to the time of avoiding a fine levied or recovery suffered, and others holding the time to be immaterial, so that not disavowing the deed shall not be so long delayed as to work its ratification. Of course, where a former deed is to be invalidated by a subsequent deed to another person, it must be done after full age, for the same want of capacity that makes -the first revocable might annul the second deed. But the act of infancy can be revoked by entering upon the land and taking the profits while an infant; and we find no case that denies his right to invoke the aid of chancery to relieve him from the improvidence and folly of his immature years; nor, considering the relation of courts of chancery to infants, would we expect to find such a case.”

See, also, Ryan v. Morrison, 40 Okla. 49 (135 Pac. 1049); Doe, ex dem. Jackson, v. Woodruffe, 7 U. C. Q. B. 332.

We repeat that the deed from the two infants was a gift.

In Robinson v. Weeks, 56 Me. 102, it is said:

“We think the true doctrine is that contracts of minors may be divided into three classes: 1. Binding, if for necessaries at fair and just rates. 2. Void, if manifestly and necessarily prejudicial, as of surety-ship, gift, naked release, appointment of agents, confession of judgment or the like. 3. Voidable, at the election of the minor either during his minority or within a reasonable time after he becomes of age; and this last class includes all the agreements, of a minor which may be beneficial, and are not for necessaries until fully executed on both sides, and all executed contracts of this sort where the other party can be placed substantially in statu quo.”

There can be no question that in the instant case the deed was “manifestly and necessarily prejudicial” to the plaintiffs, and we think the Maine rule should be applied. See 1 Elliott on Contracts, §§ 286, 288.

An infant’s bond with penalty and for the payment of interest has been held to be void on the ground that it could not possibly be for his benefit. See Baylis v. Dineley, 3 M. & Sel. 477; Fisher v. Mowbray, 8 East, 330. The mortgage of a minor’s property to secure her husband’s debt has been held void. Chandler v. McKinney, 6 Mich. 217; Cronise v. Clark, 4 Md. Ch. 403. So an infant’s promissory note as surety. Maples v. Wightman, 4 Conn. 376; Curtin v. Patton, 11 S. & R. (Pa.) 305. So as to a release by a minor to his guardian. Fridge v. State, 3 Gill. & J. (Md.) 103, 115. An infant’s release of his legacy, or distributive share, is held to be void in Langford v. Frey, 8 Humph. (Tenn.) 443.

In Person v. Chase, 37 Vt. 647, at page 648, the court, speaking of gifts made by infants, said;

“The rules of law as to infants are made for their protection, and this has been the chief consideration which has been regarded in the adjudged cases, in determining the legal character of their acts.”

It has been held that an infant’s deed, conveying his lands without any, or upon a mere nominal consideration, is absolutely void, and invests his vendee with no title whatever. Robinson v. Coulter, 90 Tenn. 705 (18 S. W. 250); Swafford v. Ferguson, 71 Tenn. 292.

In the last cited case the court said:

“When the court can pronounce the contract to be to the infant’s prejudice, it is void.”

See, also, Harrod v. Myers, supra.

In the instant case the consideration named was two dollars, but the undisputed evidence was that nothing was paid, and plaintiffs have never received a cent for the conveyance. We think the deed was void, and that plaintiffs may take steps to avoid it during minority.

We agree with the trial court that the equities of the case are with the plaintiffs.

Some question is raised as to the right of the general guardian to file the bill. We think that chapter 31 of the judicature act (3 Comp. Laws 1915, § 13258 et seq.), entitled: “Of the partition of lands owned by several persons,” gives ample authority for the practice pursued here.

We agree in the main with the conclusion reached by the trial court. The decree below, however, should be so modified as to exclude defendant Marguerite Tourcott from any indebtedness to the plaintiffs. And the lien of the plaintiffs should be only upon the real and personal property which came to the possession of the defendant Michael Tourcott in the purchase from Mrs. Gillmett. The principal of the mortgage will be reduced to $1,000, as of its date, and will stand as a lien upon the undivided one-half interest of the defendant Michael Tourcott. The decree so modified will stand affirmed, with costs of this court to the plaintiffs.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred. The late Justice Brooke did not sit.


text:
    PEOPLE, ex rel. SIMMONS, v. TOWNSHIP OF MUNISING.
    1. Statutes — Construction—Absurdity.
    Unless necessary, statutes should not be so construed as to result in absurdity.
    2. Schools and School Districts — Townships—Disbanding —Statutes.
    Act No. 354, Pub. Acts 1919, amending Act No. 117, Pub. Acts 1909, by amending the title and adding a new section providing for the disbandment of township school districts, construed, and held, to require sections 1 and la to be read together in order to determine the details of the method to be applied in disbanding a township school district.
    3. Statutes — Language—Construction.
    Adoption of language requires adoption of construction; identical language should receive identical construction when found in the same act.
    4. Schools and School Districts — Townships—Corporate Identity Distinct.
    A township school district is as separate and distinct from the township in its legal and corporate identity, even though the territorial limits may be the same, as is one county from; another.
    5. Same — Elections—Disbanding Township School District —Electors in City in District Entitled to Vote.
    Where a village was part of the school district of the township in which it was located, and on incorporating as a city its school status was not changed, it continued a legal part of the township school district by inheritance, and the qualified school electors resident in said city must be counted in determining the sufficiency of a petition for an election for the disbandment of said district, and are entitled to vote upon the proposition under the provisions of Act No. 354, Pub. Acts 1919, amending Act No. 117, Pub. Acts 1909.
    Error to Alger; Fead (Louis H.), J.
    Submitted January 12, 1921.
    (Docket No. 106.)
    Decided March 30, 1921.
    Quo warranto proceedings by the people of the State of Michigan, on the relation of David E. Simmons, prosecuting attorney of Alger county, against the township of Munising to determine the legality of an election. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. W. Dunton, for appellant.

      David E. Simmons, Prosecuting Attorney, for the people:
   Stone, J.

In this case an information in the

nature of a quo warranto was filed in the circuit court for the county of Alger by the prosecuting attorney, under the provisions of section 28 of chapter 38 of the judicature act (3 Comp. Laws 1915, § 13551) to determine the legality of an election held in the township of Munising on May 18, 1920, under the direction of the township board, at which election there was submitted the following question:

. “Shall the township school district of Munising township be disbanded and the township' re-districted into separate school districts?”

The said election was claimed to be called and held to determine the above question under and in accordance with the provisions of Act No. 354 of the Public Acts of Michigan for the year 1919. This act amends the title of, and adds a new section to, Act No. 117 of the Public Acts of 1909. The title of the act as amended reads as follows:

“An act to provide for the organization and disbandment of township school districts in the State of Michigan.”

The amendment of the title consisted of the two words “and disbandment.” 'The statutory provisions are too lengthy to be' here inserted, but attention to them is invited.

By his petition the plaintiff claimed that the school district affected by the election comprised all the territory within both the township of Munising and the city of Munising, and, therefore, that the election was illegal and invalid for the following reasons:

“1. That the petition which was filed with the township clerk requesting the submission of such question was not signed by one-fourth of the qualified school electors of such township school district.
“2. That no notices of said election were posted in the city of Munising, the most public place in said township school district.
“3. That all the territory embraced in the township of Munising, Alger county, was organized by Act No. 209 of the Local Acts of 1891, into a single school district. The village of Munising was incorporated within the territory of the said school district in 1896. Some time subsequent to 1909 the township of Munising, including the village of Munising, all of which constituted a single school district, elected to come under Act No. 117 of the Public Acts of 1909. That the village of Munising became the city of Munising in January, 1915, by the adoption of a city charter, but no change was made in the school system, which remained' under the same law, and under the same territorial conditions as before the incorporation into a city, and the qualified school electors of such township school district residing in the corporate limits of the city of Munising were not permitted to vote at said election. That several qualified school electors of said township of Munising school district attempted to vote at said election, and were not allowed to vote, and were told that no school elector residing in the city of Munising would be allowed to vote. * * *
“4. That no voting place was provided in the city of Munising, or any election called or held in said city which was the principal polling place of said township school district, and where school elections have always been held, and where the number of qualified school electors greatly exceed those in the township outside the city.”

It is conceded that at said election the majority of the school electors voting at such election voted in favor of the proposition submitted.

The defendant in its plea admitted that the school electors residing in the city of Munising were not considered in the action leading to, and the holding of, the election, but affirmed and claimed that the said election was. called, held and carried out in strict compliance with the provisions of said act of 1919, and that none of the acts complained of by plaintiff in his petition were necessary or requisite to a full compliance with the provisions of the amended statute.

The case was submitted to the trial court. No testimony was taken, as the pleadings fully disclosed the facts. The issues of law arising from the pleadings were argued by counsel for the respective parties, and submitted. Later the learned circuit judge filed conclusions of law. After stating the facts and also the illegalities claimed in the petition of plaintiff, he in part said:

“In the case at bar, the township school district was adopted by consent of all concerned. If Munising had remained a village, it is admitted that its electors would have a voice on disbandment. When it became a city, there was_ no law permitting disbandment of township school districts and the city had no power, by charter provision or otherwise, to form a separate district nor to in any way change its school status. McQueen v. Port Huron Com’rs, 194 Mich. 328; Board of Education v. Bacon, 196 Mich. 15.
“The electors of the city were forced to continue as part of the township school district, and respondent’s construction of the law would resolve itself into a proposition that the balance of the township, with greatly less votes, has the right to retain the city as part of the district or eliminate at any time without its consent to either coúrse.
“Unless necessary, statutes should not be so construed as to result in absurdity.
“Prior to Act No. 354, Pub. Acts 1919, the new law provided no method for dissolution of township school districts. By Act No. 354, the title to Act No. 117, Pub. Acts 1909, was amended to cover the disbandment of such districts and a new section relating thereto was added, known as section la. The language employed in section la in providing for dissolution is, in its essentials, identical with that used in section 1, in covering the procedure for original establishment of the district. In both, the initial step is a petition signed by one-fourth of the ‘qualified school elector's of such township,’ the proposition shall be submitted, through an election, to the ‘qualified school electors of such township,’ and the district is established, or disbanded ‘if a majority of the school electors of such township voting at such election votes in favor of the proposition.’ Section la is not complete in itself. It provides only the basic essentials of the procedure and makes the provisions of section 1 applicable to determine the details of the method so far as they can be applied.
“The number of the disbandment section, the adoption in it of the identical language used in section 1, and the relationship between them by adoption of applicable procedure, rendered it persuasive that the legislature did not intend to establish a revolutionary method of disbandment, but rather that the plans should accord and harmonize with the other provisions of the original act. It is fundamental that adoption of language requires adoption of construction. Identical language should certainly receive identical construction when found in the same act.
“The expression, ‘the qualified school electors of such township’ is, of course, hazy language. The school district is as separate and distinct from the township, in its legal and corporate identity, even though the territorial limits may be'the same, as is one county from another. McQueen v. Port Huron Com’rs, 194 Mich. 336.
“There can be no such thing as a ‘qualified school elector’ of a township. The act, however, plainly discloses what the legislature meant by the expression. From sections 1 and 2, it is apparent that the right of petition and suffrage is conferred on the residents of the township who possess the qualifications of school electors, excluding those who live in ‘cities’ organized as school districts and all graded school districts having a population of more than 900, and including those who reside in that part of a fractional school district outside the township, that is to say, those who, by law, are capable of becoming part of the township school district. That the word ‘township’ as used in this connection is intended to be synonymous with ‘district’ further clearly appears in section 9 of the act where the words are used interchangeably. If those, and only those, who are capable of becoming part of the township school district may vote upon its establishment, identity of construction requires that the holding that all those who are part of the district may vote on its disbandment.
“Under section 2, large graded districts and ‘cities organized as school districts,’ may become part of the township school district by the voted consent of all the districts affected. The city of Munising was never organized as a school district, but is a legal part of the township school district by inheritance. Its electors are entitled to the same rights as those residing in other parts of the district.
“The construction contended for by respondent is not only not sustained by the act, but it is contrary to the spirit of popular government pervading our laws. When organized, a township school district becomes a complete municipal corporate entity. Assuming that the legislature has power to make such discrimination, which is by no means certain, it would require plain and unmistakable language to warrant a construction which would disfranchise a part of the equally qualified electors of any municipality, upon a matter of general concern, especially upon the proposition of disturbing a condition which existed by reason of the voted consent of all the electors, properly qualified, of the municipality. The language used in Act No. 354 and Act No. 117 effectually negatives such intention on the part of the legislature.
“In my judgment the qualified school electors resident in the city of Munising must be counted in determining the sufficiency of the petition for abandonment and are entitled to vote upon the proposition. The petition at bar was, therefore, insufficient and the election ineffective to disband the Munising township school district.
“Judgment will be so entered.”

Thereafter the following exceptions were filed by the defendant:

“That the court erred in holding:
“1. That the qualified school electors of said district residing within the limits of the city of Munising were to be taken into consideration in determining the necessary number of signatures to the petition requesting such election.
“2. That it was necessary to post notices of said election within the limits of the city of Munising.
“3. That the qualified school electors residing in the city of Munising were entitled to vote at said election.
“4. That the language ‘qualified school electors of said township,’ as used in said statute, should be read and construed as ‘qualified school electors of said district.’
“5. That the said proceedings taken by the qualified school electors of said township, were not regular and in accordance with the requirements of said statute, and were not effectual to work the disbandment of said school district.”

Judgment setting aside the election was entered in accordance with the findings. The defendant has brought, error, and its assignments of error present the same questions as those covered by the exceptions and conclusions of law.

'In our opinion every question raised and discussed by counsel for defendant is fully covered and answered by the learned circuit judge in his full and exhaustive conclusions of law, which we approve and adopt as the opinion of this court. We are of the opinion that the qualifications of voters on the question of disbandment are the same as the qualifications of voters upon the questions of organizing and conducting the affairs of the school district; and that on the question of disbanding the qualified school electors of all the territory that is included in the school district are entitled to vote. It follows that the qualified school electors resident in the city of Munising must be counted in determining the sufficiency of the petition for disbandment, and are entitled to vote upon the question.

A question as to the constitutionality of the act is suggested by counsel, but is not raised by exception or assignment of error, and hence not considered.

The judgment below is affirmed.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred. The late Justice Brooke did not sit.


text:
    PEOPLE v. ROMANSKI.
    1. Bribery — Public Officers — Criminal Law — Statutes.
    3 Comp. Laws 1915, § 14992, provides a penalty for a corrupt omission by an officer to perform a manifest duty imposed by law, while section 14979 aims to punish a corrupt exercise of official power by officers who have ' some discretion or vote to exercise.
    2. Same — Constables—Omission of Duty.
    Constables charged with corruptly receiving a bribe under an understanding and agreement that they would refrain from making a complaint which it was their duty to make and under which agreement they released the arrested parties, should be prosecuted under 3 Comp. Laws 1915, § 14992, rather than under section 14979.

      3. Same — Conviction Under Wrong Statute — Discharge.
    Constables wrongly prosecuted and convicted under 3 Comp. Laws 1915, § 14979, could not be sentenced under section 14992, since the record does not present a case of a crime embracing different degrees nor of statutes in pari materia, but a case of distinct and dissimilar statutes, and defendants should therefore be discharged.
    Error to recorder’s court of Detroit; Keidan, (Harry B.), J.
    Submitted January 13, 1921.
    (Docket No. 118.)
    Decided March 30, 1921.
    Leo Romanski and. Frank Bartell were convicted of receiving a bribe, and were sentenced to imprisonment for not less than 2 nor more than ten years in the State prison at Jackson.
    Reversed, and defendants discharged.

      Maurice E. Fitz-Gerald, James A. Murtha, and Eugene Mistersky (Hollis Harshman, of counsel), for appellants.

      Merlin Wylie, Attorney General, Paul W. Voorhies, Prosecuting Attorney (Collins B. Scott, of counsel), for the people.
   Stone, J.

The defendants were, at the time of the alleged commission of the offense charged in the information, and at the time of the trial, constables in and for the city of Detroit, and were acting as sucofficers at the time of the doing of the acts upon which the charge against them is based. The evidence on the part of the people tended to show that on March 23, 1920, both defendants, acting together, went to the home of one Lucas in the city of Detroit, and gaining admission, showed their badges, announced that they were officers, and proceeded to search the house for whisky. They accused Lucas of making whisky, arrested him and another man named Peto, who was a boarder in the house, and put handcuffs on them; that after some little delay the defendants received $50 from Mrs. Lucas for the release of the two men from arrest; that the defendants asked $200 for the release, but received only $50 and were to return in 30 days for the balance; and that they left the house immediately after receiving the money and made no complaint against Lucas. The information filed in the recorder’s court against defendants charged that it was the duty of defendants as constables to arrest for the violation of a certain law, and to make complaint therefor; that defendants as constables did arrest certain persons for violation of such law, and that it was their duty to make complaint therefor; that defendants disregarded such duties and corruptly received and accepted a sum of money under an agreement and understanding that they, as such constables, would release the arrested persons, and would not make complaint against them, as it was defendants’ duty as constables to do; and that under such agreement defendants released said persons from the arrest under which they had been placed and did not make complaint against them.

Upon the trial and at the close of. the testimony for the people, the defendants moved for a directed verdict of not guilty, upon the ground that the prosecution should have been under section 14992 instead of under section 14979, 3 Comp. Laws 1915. The motion was overruled, and the trial court charged the jury that the facts charged in the information would, if proven, support a conviction under section 14979. The defendants were found guilty by the jury, and were sentenced under the provisions of said section 14979 to be confined in the State prison at Jackson, Michigan, for a period of not less than 2 or more than 10 years, with a recommendation that they be confined for a period of 2 years. It will be noted that the sentence was for a longer term of imprisonment than could be given under section 14992.

The defendants have brought the case here on writ of error, and the principal error relied upon is that there was error in prosecuting, charging the jury, and in convicting and sentencing the defendants under section 14979 instead of under section 14992. The two sections involved have been upon the statute books of this State, unchanged, since the Revised Statutes of 1838. They read as follows:

“Section 14979: Every executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or that in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the Constitution or laws of this State, and shall be punished by imprisonment in the State prison not more than ten years, or by fine not exceeding five thousand dollars, and imprisonment in the county jail not more than one year.”
“Section 14992: If any sheriff, coroner, constable, or other officer authorized to serve legal process, shall receive from a defendant, or from any other person, any money or other valuable thing, as a consideration, reward or inducement, for omitting or delaying to arrest any defendant, or to carry him before a magistrate, or for delaying to take any person to prison, or for postponing the sale of any property under an execution, or for omitting or delaying to perform any duty pertaining to his office, he shall be punished by imprisonment in the county jail not more than six months, or by fine not exceeding five hundred dollars.”

An examination of the numerous cases in this court cited in the note to section 14979 will show that they relate to violations of law by prosecuting attorneys, city attorneys, and members of various boards such as boards of education, water commissioners, etc. — officers that have some discretion or vote to exercise.

Conceding defendants to have been executive officers, and that they accepted a bribe to let their prisoner go, brings us to the question of whether such bribe can be said to have reached or influenced their “vote, opinion or judgment in any particular manner, or upon a particular side of any question, cause or proceeding, which could be by law brought before them in their official capacity.” This question admits of none but a negative answer. In the faiatter at bar defendants had no question, cause or proceeding before them upon which they could vote, or express an official opinion; or exercise official judgment at all, because no question, cause or proceeding, within the meaning of this statute was or could be by law brought before them in their official capacity. This statute was enacted to preserve the integrity of official action in cases where the right of an official to vote, or to decide by his opinion, or exercise his judgment in any manner upon any question, cause or proceeding, is given his office by law. It would stretch the plain import of the statute too far to make it reach constables who accept money to let their prisoner go. The legislature, evidently considering that such statute would not reach a case like the one presented by this record, at the same time enacted section 14992.

Under this last-mentioned statute a penalty is provided for a corrupt omission by an officer to perform a manifest duty imposed by law. In the one statute a corrupt exercise of official power is reached, while in the other a corrupt omission to perform a manifest duty is punished; and the statutes are not in pari materia and therefore their penalties are unlike. One statute reaches acts of commission by officials, induced by bribery; the other reaches acts of omission of duty by designated officials,, including constables, induced by bribery. Both statutes cover corrupt official betrayal of duty and both are necessary within the fields they cover; the one to punish the corrupt omission of acts, bearing ostensibly official verity, but in fact induced by a bribed betrayal of official power; the other to punish the corrupt and bribed failure to perform a law-imposed duty. In the one instance an official discretion or power, exercised by way of vote, opinion or judgment is involved, while in the other no power of official discretion, opinion or judgment whatever is involved. To convict under the one statute and sentence under the other would be to sentence for a crime of which defendants have not been charged, examined, tried or convicted, and not falling as one of degree within the one charged. Defendants under the evidence should not have been convicted of the crime charged, and such conviction, therefore, cannot be accepted as warrant for sentencing them under another statute which fits the claimed facts but under which they have not been informed against, tried or convicted.

An examination of the authorities cited by counsel upon both sides has satisfied us that the. defendants were charged, tried, convicted and sentenced under the wrong statute, and that the proceeding amounted to a mistrial. It is suggested by the brief of the attorney general that if the contention of defendants is correct they should not be discharged, but that they should be sentenced under the provisions of section 14992, and the case of People v. Daily, 178 Mich. 354, is cited, That case refers to People v. Farrell, 146 Mich. 264. Those cases differ in principle from the instant case. This record does not present a case of a crime embracing different degrees, nor of statutes in pari materia, but a case of distinct and dissimilar statutes. In our opinion the case more nearly resembles the case of People v. Day, 185 Mich. 68, where the defendant was prosecuted and convicted under a wrong statute, and we reversed the conviction and discharged the defendant. A new prosecution followed, but again under a wrong statute. (See People v. Day, 200 Mich. 636.) We again reversed the case and discharged the defendant. We think that course should be followed here.

The judgment of the court below is reversed and set aside and the defendants discharged.

Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


author: STONE, J.

text:
    BADEAUX v. RYERSON.
    1. Cemeteries — Deed to Indians — Common-Law Dedication.
    Where a deed to the Ottawa tribe of Indians of án acre of land in the city of Muskegon “known and described as the Indian burying ground,” failed to convey legal title because the grantees therein named were incapable of taking title, but by reason. thereof the said described premises were used as a cemetery, there resulted a common-law dedication for cemetery purposes, the fee remaining in the grantors.

      2. Dedication — Grant—Distinction.
    A dedication may be distinguished from a grant in that there need be no grantee in esse at the time of the dedication, to give it effect.
    3. Same — No Particular Form Necessary — Intent.
    No particular form or ceremony is necessary to the validity of a common-law dedication; and while ordinarily some written instrument is required to transmit a right of real properly, the law applicable to dedication is different, and any way by which the intention of the dedicator can be evinced is sufficient.
    4. Same — Easement.
    By a common-law dedication the fee does not pass, but only an easement.
    5. Cemeteries — Easement—Abandonment—Reversion.
    Defendant, as the grantee by mesne conveyances of the original owner, is the owner in fee of the land subject to> the easement in the public for cemetery purposes, and in the event of the abandonment of the easement the possession and beneficial use of the land will revert to him.
    Appeal from Ottawa; Gross (Orien S.), J.
    Submitted October 8, 1920.
    (Docket No. 58.)
    Decided March 30, 1921.
    Bill by William Badeaux and others against Martin A. Ryerson to quiet title to land. Defendant filed a cross-bill to have title quieted in him. From a decree for defendant, plaintiffs appeal.
    Affirmed.

      Philip W. Kniskern, for plaintiffs.
    Cross, Foote & Sessions, for defendant.
   STONE, J.

This case is in this court upon the appeal of the plaintiffs from a decree dismissing their bill of complaint, and granting relief to the defendant upon his cross-bill. The case was transferred from the Muskegon to the Ottawa circuit. We compile from the opinion of the circuit judge who heard the case the following statement of facts which we find to be supported by the evidence: The bill was filed to quiet the alleged title of the plaintiffs to an acre of land in the city of Muskegon. Issue was joined and proofs taken in open court. It appeared upon the hearing that Louis B. Badeaux, the father of two of the plaintiffs, and the grandfather of the other plaintiff, on the 27th day of April, 1841, was the owner in fee simple under patent from the United States Government of lot No. 2, section 19, town 10 north, range 16 west, in the district of lands subject to sale at Ionia, Michigan, containing 63.85 acres, according to the official plat of the survey of the said lands returned to the general land office by the .surveyor general. On the day above named said Louis B. Badeaux and his wife made and executed a warranty deed in the usual form to the “Ottawa Tribe of Indians” of a parcel of land

“known, and described as the Indian burying ground, being one square acre of land in a square form, situated on lot No. two, in section No. nineteen, town ten north, of range sixteen west, being in the town of Muskegon, Ottawa county, and State of Michigan.”

After this deed was given, a number of Indians were buried upon this lot, and their bodies have never been removed; among others were a son and daughter of Louis B. Badeaux. Also other people have been buried upon this lot and their bodies have not been removed. About 1850 the Ottawa .tribe of Indians moved away from the locality of Muskegon and established themselves elsewhere. In 1855, by virtue of a treaty 'with the Government, the Ottawa tribe of Indians was dissolved, since which time there has been no tribe of Ottawa Indians in that locality. Since 1841, the land in question has been at all times known and maintained as an Indian cemetery. For a number of years there have been no burials there. The land is fenced and a large white cross stands upon the lot. No taxes have been assessed against the land since 1841, it having been treated as exempt by reason of its being a cemetery. The fence which now encloses the cemetery, and the cross, were erected by the father of the defendant. On February 26, 1853, said Louis B. Badeaux conveyed by quitclaim deed said lot No. 2 to George W. Walton and William Lasley, which title was later procured by the defendant. Later, and on March 31, 1856, said Louis B. Badeaux and wife conveyed said lot to Martin Ryerson and Robert W. Morris, which title was also later acquired by the defendant. The deed last named to Ryerson and Morris, after giving the description of lot No. 2, concludes as follows:

“Containing sixty-two (62) acres, be the same more or less, according to the United States survey of lands subject to entry in the district of Ionia, Michigan.”

The plaintiffs claim that the Ottawa tribe of Indians could not take title to the lands, and that by reason of the possibility of reverter that attached when the land became a cemetery the land now belongs to the plaintiffs, subject only to the right of the public to use it as a cemetery.

The defendant also claims that the tribe could not take title to the land in question; and that the tribe merely had an easement to use the land for cemetery purposes, and that by reason of the several transfers the defendant owns the property subject only to the right of the public to use and maintain it for cemetery purposes.

The circuit judge, after alluding to the fact that it was admitted that the tribe could not take title to the land, held that the title did not pass from Louis B. Badeaux by virtue of the deed to the tribe, and that if the title did not pass from him, then he still held the title to the land until he conveyed it by the later deeds. From the fact that the deed to the tribe refers to the land “as the Indian burying ground,” and from other slight evidence in the record, it may be inferred that the land was being used as an Indian cemetery at the time the deed was given. The concluding part of the opinion of the circuit judge is as follows:

“The use that was being made of the land by the consent of the owner gave the public an easement to use the land as a cemetery. The public could surrender this easement at any time, but until so surrendered by the public, the land remained subject to the rights of the public to use and maintain it as a cemetery. This easement has not, as yet, been surrendered. A fence has been maintained around the land, a cross has been erected and maintained on the lot to designate it as sacred ground — a place where the dead have been buried. The fact that no bodies have been recently buried there does not signify that it has ceased to be a cemetery. It appears that the land in question is still maintained and regarded by the public as a cemetery, and has not been vacated and abandoned as such; that the easement for cemetery purposes has not been surrendered and that the land is yet subject to such easement. It follows from the foregoing conclusions that the title to the land in question did not revert to the plaintiffs, and that the plaintiffs have no right or interest in said lands, aside from the easement that the public may use it as a cemetery, but that the title passed to the defendant by the several transfers, and that the defendant now holds title to said lands, subject only to the right of the public to use and maintain the same as a cemetery. It therefore follows that the bill of complaint should be dismissed, and the relief asked for in the cross-bill of the defendant granted.”

A decree was entered accordingly.

We have spent much time in the examination of the numerous authorities: cited by counsel, and after such research have been brought to the conclusion that the court below reached the correct conclusion in the case. If the premises of plaintiffs’ counsel were to be conceded, and if it were to be held that the title, or a fee of any kind in the land, passed by the dedication, then the conclusion reached by counsel would be warranted by the authorities cited. But it is very clear to us that the dedication here was what is termed a common-law dedication; and we agree with counsel for plaintiffs in the force of the numerous citations from 18 Corpus Juris under the title of “Dedication”; that dedication may be distinguished from a grant, and that there need be no grantee in esse at the time of the dedication, to give it effect; that no particular form or ceremony is necessary to the validity of a common-law dedication; that while ordinarily some written instrument is required to transmit a right of real property, the law applicable to dedication is different, and no writing or conveyance is necessary to render a dedication effective; and that dedications have been established in every conceivable way by which the intention of the dedicator could be evinced. But we think it is equally well established by the authorities that by a common-law dedication the fee does not pass, but only an easement.

It seems to be conceded, and it is very clear to us, that, under the authorities, the deed from Louis B. Badeaux and wife to the Ottawa tribe of Indians conveyed no legal title, for the reason that there was no grantee capable of taking or holding the fee. The following cases are cited in support of that proposition: Doe, dem. Sheldon, v. Ramsey, 9 U. C. Q. B. 105; 1 Jones on the Law of Real Property, p. 205, citing German Land Ass’n v. Scholler, 10 Minn. 331, 338; Jackson v. Cory, 8 Johns. (N. Y.) 385; Morris v. State, 84 Ala. 457 (4 South. 628); Tuttle v. Moore (Ind. Terr.), 64 S. W. 585; City of Lynn v. Inhabitants of Nahant, 113 Mass. 433; 22 Cyc. p. 127 and cases there cited.

The claim of the plaintiffs upon the main question in the case is shown by the following quotation from the brief of their counsel:

“All the text writers that treat of the matter, follow Touchstone, giving the rule that in the case of an abandonment of the land and (or) nonuse for the purpose for which it was dedicated, the land reverts to the donor or his heirs or representatives. In the meantime the fee remains in the donor, dormant, and so remains until the property is vacated and he has the right of possession. That a conveyance made to a stranger is void and passes no title. That there can be no title obtained by adverse possession or by any means whatever so long as the premises are occupied by those for whose benefit it was dedicated. In support of the above I cite the following cases: Puffer v. Clark, 202 Mich. 169, 199; North v. Graham, 235 Ill. 178 (85 N. E. 267, 18 L. R. A. [N. S.] 624); First Universalist Society v. Boland, 155 Mass. 171 (29 N. E. 524, 15 L. R. A. 231); Estes v. Agricultural, etc., Ass’n, 181 Mich. 71; Delhi School Dist. v. Everett, 52 Mich. 314; Campbell v. City of Kansas, 102 Mo. 326, (13 S. W. 897, 10 L. R. A. 593); Hines v. State, 126 Tenn. 1 (149 S. W. 1058, 42 L. R. A. [N. S.] 1138); Colbert v. Shepherd, 89 Va. 401 (16 S. E. 246); Thayer v. Magee, 20 Mich. 195; Upington v. Corrigan, 151 N. Y. 143 (45 N. E. 359, 37 L. R. A. 794.)”

The cases cited above are readily distinguished from the instant case, and from any case involving a common-law dedication. In the Puffer Case there was a grant by deed of a conditional or qualified fee, with a provision for reverter. In the North Case there was a grant by deed creating a determinable fee. In the Boland Case there was a deed conveying a qualified or determinable fee. In the Estes Case there was a reversion, pursuant to a condition subsequent in the deed. In the Delhi Case there was a written lease held to be in perpetuity at the will of the lessee, conveying a base or determinable fee. In the Campbell Case the action was ejectment and there was a dedication by plat. In the case of Colbert v. Shepherd, known as the “Mary Washington case,” there was a common-law dedication. While an interesting case, it has no bearing upon the question here involved. It was held that the grave was not included in a subsequent deed. Thayer v. Magee was ejectment. There was a recorded plat, held to convey a base, qualified or conditional fee. In the Corrigan Case the action was ejectment. There was a deed with a condition subsequent.

We are here dealing with a common-law dedication, and we think that in such a dedication the fee does not pass, but only an easement. 8 R. C. L. pp. 906, 907, citing San Francisco v. Calderwood, 31 Cal. 585 (91 Am. Dec. 542); Tracy v. Bittle, 213 Mo. 302 (112 S. W. 45, 15 Ann. Cas. 167); Portland, etc., R. Co. v. City of Portland, 14 Or. 188 (12 Pac. 265, 58 Am. Rep. 299); Pomeroy v. Mills, 5 Vt. 279 (23 Am. Dec. 207).

We invite attention to the case of Tracy v. Bittle, supra. It fully answers the claim of abandonment asserted by the plaintiffs. Referring to the distinction between a common-law dedication, and one created by deed, we quote the following at the close of the opinion:

“There is thus drawn a distinction between lands conveyed by deed for a valuable consideration, and lands merely dedicated to a public use. In the latter class of cases, if there comes a time when the bodies are all removed, or when by other conditions a clear abandonment of the graveyard is made apparent, then the right of the public, which is somewhat in the nature of an easement, ceases, and the land reverts to the original owner or his grantees. But mere ceasing to make further interments does not abandon the graveyard, as we have seen, so long as it is kept in condition to be known and is known as a burying ground. The defendant in this case has no right to the possession of these grounds so long as they are kept and maintained as a burying ground. The public has the beneficial use thereof. The defendant has a reversionary interest. He holds the fee subject to the use aforesaid.”

In Pomeroy v. Mills, supra, we quote from the headnote:

“But the public, by such dedication and subsequent use, only acquire an easement upon the land, and not an interest in the soil itself; and any proprietor of an undivided share of land in the town, may maintain ejectment against any one who is in the exclusive possession of any part of the land, so set apart, and recover, subject to such easement.”

In the San Francisco Case it was held that an easement is not an estate in land, and the court said:

“The public took nothing but an easement, and that term excludes the idea of an estate in the land on which the servitude was imposed.”

Applying these rules to the instant case, it seems clear that, upon abandonment of this cemetery, the land will revert to the defendant, as the grantee, by mesne conveyances, of the original owner. From this conclusion there seems to be no escape. It follows that the defendant is the owner of the fee of this land, but the public has the right to use the land for cemetery purposes, and in the event of abandonment the possession and beneficial use of the land will revert to the defendant.

lit is the claim of the defendant, and there is evidence in the record to that effect, that he has offered to convey this land to the city of Muskegon, in perpetuation, as an Indian cemetery, but that owing to the conflict in the title such offer was refused. We have examined and considered all of the questions involved, and are of opinion that the court below was warranted in dismissing plaintiffs’ bill and in granting defendant the relief prayed for in his cross-hill; and the decree will stand affirmed, with costs to defendant.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.