text:
    MICHIGAN SUGAR CO. V. MOFFETT.
    1. Interpleader — Equity—Jurisdiction—Action at Law.
    While it may be questioned if an affidavit of the assignee of a claim can be considered in support of a demurrer to complainant’s bill of interpleader, as establishing the fact that an action at law had been instituted with the consent of the assignee upon complainant’s alleged contract to take a crop of sugar beets, to be grown by the defendant assignor, the trial court committed no error in finding that the suit was commenced on the law side of the court with the consent of the assignee, where complainant’s bill of interpleader joining assignor and assignee and seeking to restrain the action, did not aver that the action at law was not commenced for the benefit of or under the direction of such assignee.
    2. Assignment — Contract—Parties.
    At common law the assignment of a demand did not entitle the assignee to bring an action in his own name.
    3. Same — Statutes—Actions.
    3 Comp. Laws, § 10054 (5 How. Stat. [2d Ed.] §12704), permitting the assignee of a claim to sue in his own name is not mandatory, and leaves the party to bring the action in his own name, if he so elects.
    4. Same — Equity—Pleading—Injunction.
    The trial court did not commit error in sustaining a demurrer to the hill, which could not be sustained as a bill of interpleader, lacking many of the essentials of such an equitable pleading, and claiming no relief of a final character except a money judgment and an injunction restraining the action at law for breach of contract.
    5. Same — Foreclosure—Lien.
    Neither could the complaint be sustained as a foreclosure bill as affecting the beets covered by the contract, which had all been disposed of, or had ceased to exist so that foreclosure would be useless, and there was no property on which a lien might operate.
    6. Same — Multiplicity oe Suits.
    The fact, that other contracts of a like nature between complainant and other beet growers might be concerned or affected by the result did not confer jurisdiction upon the court of equity, or sustain the claim that it was filed to prevent multiplicity of actions.
    Appeal from Gratiot; Searl, J.
    Submitted November 18, 1914.
    (Docket No. 99.)
    Decided December 19, 1914.
    Bill by the Michigan Sugar Company against Edmond Moffett and Luke B. Sawyer for an injunction and other equitable relief. From an order sustaining a demurrer to the bill of complaint, complainant appeals.
    Affirmed.

      Warren, Cady, Ladd & Hill and William, A. Bahlke, for appellant.

      Edwin H. Lyon and John W. Myers, for appellees.
   Stone, J.

The bill of complaint in this cause was filed to restrain a suit at law, and for further specific relief as hereinafter indicated. The defendants demurred. Upon the hearing of an application for an injunction, the same was denied. Afterwards the demurrer was sustained and the bill of complaint dismissed. The complainant has appealed. .

The bill alleges that the complainant (hereinafter called the company) is a corporation organized under the laws of this State, and is engaged in the business of manufacturing refined sugar from sugar beets; that one of its plants, for this purpose is located at Alma, Mich., and is known as the “Alma Plantthat it obtains its supply of sugar beets by contracts with farmers in the neighboring counties; that for the purpose of encouraging and assisting men without means to plant, cultivate, and harvest sugar beets, it has in certain cases rented lands, in its own name for such purpose, and sublet such lands to such persons, advancing money to such growers, for the production and delivery of the crop; that with this object in view, the company entered into a written lease with one Charles Johnson for 60 acres of land, on August 27, 1910, for the term of two years from and after January 1, 1911, a copy of which is made a part of such bill, and is referred to as “Exhibit A.” It is averred that on the same day the company entered into a written contract with the defendant Edmond Moffett to grow sugar beets upon the same lands rented from Johnson, and to deliver such beets at a stated price to the company at the Alma plant “during the year commencing with the spring of 1911.” Said agreement is referred to as “Exhibit B,” and contained the following provision:

“Said beets shall be harvested and loaded by the grower for the company on cars, or delivered at factory sheds, at such times and in such quantities as may be directed by the company, allowing each grower his pro rata, amount. The company will not be able to receive or pay for beets which are rotten, or otherwise unfit, or undesirable for making sugar.”

This contract bears the following date: “Date 1/27/1911.” The bill avers that the date was an error, and should have been, “August 27, 1910.” The bill further alleges that on the same day, to wit, August 27, 1910, the company and said defendant Moffett made and entered into a second contract, in writing, referred to as “Exhibit C,” whereby the said defendant assumed the lease between the company and. Charles Johnson, and the company agreed therein—

“To advance all necessary money to Mr. Moffett to pay off his help, but the aforesaid Edmond Moffett agrees to do all the work he can himself, said money so advanced to be paid back to the aforesaid sugar company with interest, according to certain notes used by the aforesaid sugar company; the aforesaid Edmond Moffett agrees to make out a statement of the actual expense, and turn it over to the company or its agent whenever he wishes money advanced to pay off help; all moneys so advanced shall be taken out of the proceeds of the crops grown if the proceeds come to enough, otherwise Mr. Moffett is liable the same as any other debt.”

It is averred that under the said contracts the defendant Moffett proceeded to grow upon the lands in question 60 acres of sugar beets for the company; that the company, under the last-named contract, to assist said defendant to produce such crop, did, from time to time, advance to him large sums of money; that it did also advance beet seed to said defendant and paid freight charges for the delivery of such beets to its Alma plant, and that the amount of such advances exceeded the sum of $2,000. It is further averred that at the time such cash advances were made, from time to time, the said defendant gave to the company security notes or contracts, of which the following is a specimen:

“350.00 No. 5600.
“Ashley, Michigan, January 17, 1912.
“Michigan Sugar Company (Alma Plant).
“Gentlemen:
“I hereby make application for a loan of three hundred and fifty dollars, to use in growing and harvesting my crop of sugar beets grown for you under my contract No. 2822, for the season 1911.
“I hereby acknowledge the receipt of said sum of $350.00 from the Michigan Sugar Company, and agree to pay the same to the said company, or its order, on demand after Feby. 1, 1912, with interest at the rate of 6% per annum.
“As security for the repayment of said loan as aforesaid, I hereby sell, transfer and set over unto the said Michigan Sugar Company, all of the sugar beets raised during the year 1911 upon the lands mentioned in said contract, and authorize the said Michigan Sugar Company to deduct the amount above named, with interest thereon, from the first money due or payable to me; provided, however, in case I neglect to cultivate, harvest or deliver the crop, in accordance with said contract, said company is authorized to do so, and to charge the expense thereof to me, and to first deduct the amount thereof from the first moneys due or owing me.
“Edmond Moffett, Grower.”

It is further averred that said defendant,. in pursuance of said contract relations, delivered to said company, beginning on September 20, 1911, and ending on February 8, 1912, about 130 wagonloads of sugar beets, grown upon the land described in said contract, which beets were properly tared and tested by complainant in the due course of its business, and which several net sums of money for said loads of beets said defendant is entitled to have applied in payment of said several sums of money so advanced by complainant to said defendant. It is further averred that said company, at its Alma plant,- had made and entered into 2,075 beet contracts with farmers, which were in existence and force during the season of 1911. The bill further avers that on November 26, 1911, the defendant Moffett made and executed an assignment of his contract with said company, to the defendant Luke B. Sawyer, and authorized the said Sawyer to collect and receipt for alb amounts due defendant Moffett thereon, that on November '30, 1911, the defendant Sawyer caused said assignment to be filed with complainant for the purpose of giving the latter notice of his right to receive all payments due upon said contract, and that defendant Sawyer made claim to the full amount of money that might become a credit in favor of defendant Moffett under his contract. It is further averred that on June 8, 1913, the defendant Moffett began a suit at law against complainant, in the circuit court for the county of Gratiot by declaration, counting upon a breach of the contract known as “Exhibit B,” in this: That the company refused to receive the beets grown by said Moffett—

“In season, and within a reasonable time after the same were harvested and ready for delivery said defendant refused to receive the said beets, or any part thereof, except that it received a part of said beets, beforehand after that time, and wrongfully refused to receive the remainder and did not pay said plaintiff for those which it received. And the plaintiff further avers that by reason of the premises and the failure, neglect, and refusal of said defendant to receive said beets in due season 'and in accordance with the terms and provisions of said contract, and when so tendered and offered to it, as aforesaid, by said plaintiff, the said beets became and were injured, frozen, spoiled, and worthless.”

Said declaration also contained the common counts in assumpsit. The plaintiff in that suit filed a bill of particulars, claiming that the company was indebted to him for 600 tons of sugar beets raised by him in the campaign of 1911, and tendered to said company and refused, which at the contract price amounted to a large sum, to wit, $4,400. Also for 200 tons of beets raised, grown, harvested, and delivered under the terms of said agreement, for which the company did not pay said plaintiff, $1,100. Also for damages because of the failure, neglect, and refusal of the company to abide, perform, and fulfill the terms of said agreement, $10,000.

To this declaration the company pleaded the general issue, and gave notice of set-off, with a bill of particulars of its advances and payments, also of payment, satisfaction, and discharge, of the authorized deduction of advances with interest, as evidenced by said writing and notes; also by way of recoupment that said plaintiff—

“Did not with due care, plant, cultivate, harvest and deliver during the year commencing with the spring of 1911, sixty acres of sugar beets on said lands, but on the contrary, in violation of said contract in that regard, permitted said beets, by exposing them to the elements, to become frozen, rotten, and worthless for use by the defendant in the manufacture of sugar therefrom, for which purpose said plaintiff knowingly produced said crop of sugar beets for the said defendant, by reason whereof the said defendant avers that it suffered great damage in this: That it has not been paid for said beet seed, and has not been paid for said several sums of money and advances and items so made, as set forth as aforesaid, as of dates previous to March 1, 1912, to its damage of $2,000. And that the said defendant has suffered damage in the loss of profits which it would have enjoyed and received had said beets been delivered to it as said plaintiff had contracted, in this: That it would have made and received, from its use of said beets for said purpose, the sum of a net profit of $2 per ton of beets to its damage, to wit, $1,000, and to its total damage of nonperformance of said contract of $3,000, which damage said defendant will recoup as against all damages, if any, which plaintiff may have sustained in the premises, and have the balance certified as a judgment against said plaintiff, in favor of said defendant.”

Counsel for complainant state in their brief that this bill is filed in part as a bill of interpleader, in part as a foreclosure bill, also to prevent a multiplicity of suits, and for an accounting, asserting that:

“The whole question of default by either party in accepting or delivering beets under these contracts, involves the delivery of beets on 2,075 growers’ contracts.”

They also assert that the company’s defenses are not available in the action at law.

To this bill of complaint the defendants demurred for the following reasons:

“(1) It appears by said bill that a court of competent jurisdiction, to wit, the circuit court for the county of Gratiot, has become possessed of a case involving a legal controversy between said complainant and said defendant Edmond Moffett, and, it not appearing by said bill that that action is not brought by, or in behalf of said defendant Luke B. Sawyer in the name of Edmond Moffett as his assignor, the authority of that law court continues, subject to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority is at liberty to interfere with its action.
“(2) Complainant has a full and adequate remedy at law, if it has any defense to said action.
“(3) There is. no equity in said bill of complaint.
“(4) The two contracts mentioned and referred to in said bill of complaint are either a part and parcel of one contract, or they are not; if they are, complainant can make its defense at law; if they are not, equity has no jurisdiction to ascertain and apply any claim of complainant against said defendant Edmond Moffett on account of the other contract, not mentioned and declared upon in the declaration in said action at law until said claim is litigated at law.
“(5) It does not appear that complainant had or has any rights under, or claimed to arise on account of either or both of the contracts mentioned and referred to in said bill of complaint as ‘Exhibit B’ and ‘Exhibit C,’ which cannot be fully, fairly, and adequately considered and litigated in said action at law.
“(6) It does not appear that there is either any danger or any possibility of said complainant being put at a disadvantage, or in any other manner damnified by reason of the assignment from said defendant Edmond Moffett to said defendant Luke B. Sawyer, if it is required to make its defense in such action at law, and is not permitted to enjoin and restrain the prosecution of such action at law.”

In sustaining the demurrer the learned circuit judge, in his opinion, said:

“The contention of complainant that it may be liable to Sawyer under the assignment need not be discussed, as Sawyer has filed an affidavit herein expressly stating that the suit on the law side of the court was commenced with his consent and under a contract between himself and Moffett, a copy of which is attached to his affidavit. Hence in any event Sawyer can make no claim in any other suit against the sugar company.
“Complainant claims that the controversy will require an accounting, and that this can be had in a court of equity. After a careful examination of the cases cited by the solicitors for both parties, I have reached the conclusion that if the case requires an accounting, it can be had at law as well as in equity. Certainly the case here is no stronger than the one in the cited case below, where our court held that the mere fact that the accounts of the State for a period of years with those of a bank are to be examined does not give equity jurisdiction. Title Guaranty & Surety Co. v. Indemnity Co., 167 Mich. 535 [133 N. W. 515].
“It is next contended that defendant in the law case cannot set off the amounts advanced by it to plaintiff. That action is in assumpsit which is an equitable action and the advancements can be treated as payments, and under well-settled rules plaintiff then can recover no more than is equitably due him.
“If complainant is right in its assertion that there was but one contract, and that plaintiff has sued only on a part of it, that defense can be made at law. If the contracts are separate ones, plaintiff can be compelled to litigate both at this time.
“If, as claimed by plaintiff in the law case, the contract is to be construed like ordinary contracts, then the question to be decided is whether there has been a breach on the part of defendant sugar company and the amount of plaintiff’s damages in case he shows that he has fulfilled his contract. And upon these questions he is entitled to the verdict of the jury.
“On the other hand, if he contracted with reference to the usage claimed by the sugar company, and it has the right to show this usage and its custom in accepting a pro rata share under each contract, this can be shown as well at law as in equity. There is no rule that, because much time will be taken in the taking of evidence to establish the rights of the parties, therefore equity courts must take jurisdiction. It is the nature and not the extent of the accounting that determines this question. In many cases juries sit for weeks and months listening to testimony in order to arrive at a proper verdict; and, while it may be'more expensive^ to the taxpayers, it usually is not more so to the litigants, and at any rate presents no reason why the case should not be tried on the law side.
“These are the material questions involved, and I am unable to reach the conclusion that complainant has made or stated such a case as entitles it to relief. The grounds of the demurrer are therefore sustained, and an order may be entered accordingly and the bill dismissed.”

While it may be questioned whether the circuit judge could consider the affidavit of defendant Sawyer in support of the demurrer, yet, it not being claimed by the bill of complaint that the suit at law was not brought by or on behalf of said defendant Sawyer, we think the circuit judge reached the correct conclusion. The assignment of a non-negotiable demand does not, at common law, entitle the assignee to. pursue remedies in his own name, upon the-contract. The statute (section 10054, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12704) is only permissive in its provisions, and the assignee is still at liberty to sue in the name of the contracting party. Sisson v. Railroad Co., 14 Mich. 489-496 (90 Am. Dec. 252); McRoberts v. Lyon, 79 Mich. 25-31 (44 N. W. 160).

The bill of complaint cannot be treated as a bill of interpleader. It lacks many of the essentials of such a bill. Neither can it be treated as a foreclosure bill, for it appears by the bill that there are no beets now in existence upon which to foreclose any lien, and such foreclosure would be fruitless. It is contended on behalf of complainant that a proper disposition of the issues raised involves the delivery of beets on 2,075 growers’ contracts. These growers are not before the court, and the rights of the parties to this suit can as well be disposed of in the suit at law as in equity. We have fully stated the issues in the law case, to show that the rights of the parties can be fully litigated in that suit. There is no claim in the bill that complainant is entitled to the cancellation or surrender of any contract, or that it is entitled to any relief, other than a money judgment. We are of opinion that it has a full and adequate remedy at law in the law case now pending, and that the trial court properly sustained the demurrer.

The decree below is affirmed, with costs to the defendants.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Ostrandee, J.

license: Public Domain

text:
    AGAR v. STREETER.
    1. Specific Performance — Execution of Option — Evidence — Contracts.
    In a suit for specific performance of a lease and option to purchase land which the wife of defendant claimed she had never executed, evidence reviewed, and held, to sustain the finding of the circuit court that she, in fact, executed the option.
    2. Same — Frauds, Statute of — Option—Construction—Tender.
    By tendering the amount of money required hy an option to purchase land within the period limited by the writing, complainant became entitled to a deed of the property without accepting in writing the terms of the agreement.
    3. Deeds — Witnesses—Contracts.
    A properly signed deed is valid between the parties, even if it is not attested by two witnesses as required by statute (3 Comp. Laws, § 896^, 4 How. Stat. [2d Ed.] §10824).
    4. Same — Husband and Wife — Dower—Homestead.
    The wife must join in executing a deed of lands owned by her husband to release her dower interest. If the homestead is conveyed, she is a necessary party to the instrument of conveyance. Const. Art. 14, § 2.
    5. Same.
    A married woman may bar dower by joining in and by acknowledging the deed of her husband. 3 Comp. Laws, § 8930; 4 How. Stat. [2d Ed.] § 10922; and the instrument may extend further than merely barring dower, as, for instance, where the wife received all the consideration, she has been held to be liable upon the covenant against incumbrances.
    6. Husband and Wife — Dower—Deeds.
    Usually, when the wife joins in the conveyance of the husband’s property, the covenants being in form joint, such covenants are not hers, but are his only; if it is made to appear that the sole consideration passed to the wife, with the husband’s consent, the covenants will be treated as joint. The fact may be shown by evidence aliunde. If she executes a deed with her husband, such as would be required to convey her statutory rights, no purpose to affect any independent interest possessed by the wife will be inferred, and declarations in the body of the instrument are usually of no significance.
    7. Same — Entirety, Estate by.
    Neither husband nor wife can alone alien an estate held by them by the entirety.
    8. Same — Husband and Wiee.
    Omitting to name the wife in the body of the instrument as one of the grantors is not fatal to an option contained in a lease duly executed by her and her husband, to convey property jointly owned by them.
    Appeal from Tuscola; Beach, J.
    Submitted November 12, 1914.
    (Docket No. 84.)
    Decided December 19, 1914.
    Bill by Thomas Agar and Jonathan Agar against Daniel W. Streeter and Annie E. Streeter for specific performance. Decree for complainants. Defendants appeal.
    Affirmed.

      H. H. Smith (Black & Black, of counsel), for appellants.

      Brooker & Corkins, for appellees.
   Ostrandee, J.

The bill is filed for specific performance of a contract for the sale of real estate. So far as the facts are concerned, the defense -is predicated upon the denial of defendant Annie E. Streeter that she ever signed the instrument relied upon by complainants or was a party thereto. The lease and option relied upon describes the premises as a strip 40 feet wide and 8 rods long. It is so described in the bill. The decree, which recites that the trial court finds that defendant Annie E. Streeter signed the lease and option understanding^ and with, the intention and purpose of uniting therein as one of the lessors and optioners, orders the defendants to execute and deliver to the complainants a sufficient conveyance of the premises described in the option and lease upon payment to them of the sum of $449.70, which is the amount of the purchase price less the amount allowed to complainants as costs. The defendants appeal, insisting that the defendant Annie E. Streeter never signed the instrument, asserting also that it and what was done in respect to it is insufficient in law:

(a) Because the undisputed testimony shows that they owned but 33 feet by 8 rods, and not 40 feet by 8 rods.

(5) Because the option and lease on its face purports to be made by Daniel W. Streeter alone.

(c) Because (and this is predicated upon the last-stated contention) the husband signed the lease in the forenoon and the wife in the afternoon, neither being present when the other executed the instrument, the contract appearing on its face to have been made by the husband alone and as his individual act; the wife could not join with him in a valid contract to sell the property by the simple act of signing her name thereto.

(d) Because the option was void under the statute of frauds because not accepted in writing.

I am satisfied, after reading the record and after an examination of the handwriting of the defendant Annie E. Streeter and of her alleged signature to the lease and option, that she signed the lease, and that the finding and conclusion of the trial court as to this fact must stand. The giving of the option was part of a single transaction agreed upon between the parties. The tender of the money within the time limited was sufficient to make the contract otherwise evidenced by the option mutual and binding upon both parties. I have no doubt that both defendants undertook to do whatever was necessary to be done, and that complainants relied upon what defendants did as securing to them what they had bargained for. The serious question is whether the instrument relied upon as giving an option is, for that purpose, legally effective.' Assuming the bargain to have been that defendants were to convey to complainants certain property and give them a lease for five years of the strip of land in question and an option that the vendees might buy the strip at any time during the five years for $500, for which the complainants paid $4,000, the necessary legal evidence of the bargain must have been contemplated. A properly drawn and properly executed lease and option was a part of the necessary legal evidence of the bargain.

There are many decisions to be found which sustain the proposition that the estate of one who signs, seals, and acknowledges a deed, but is not described therein as grantor with apt words to indicate the estate and interest intended to be conveyed, does not pass by the deed, and it has been many times held that a joint deed executed by husband and wife, which omits the name of either as grantor, is inoperative as a conveyance of the interest of the one whose name is omitted. A considerable collection of cases has been made by counsel, and such a collection is to be found in a note to Sterling v. Park, 129 Ga. 309 (58 S. E. 828, 13 L. R. A. [N. S.] 298, 121 Am. St. Rep. 224), as reported in 12 Am. & Eng. Ann. Gas. 201, 203. See, also, 13 Cyc. p. 538; 21 Cyc. p. 1203. No analysis of these cases is attempted, although it may be remarked that a considerable number of them are based upon some statute requirement as to the form of the conveyance, others follow the early decision in Catlin v. Ware, 9 Mass. 218 (6 Am. Dec. 56). In that case a wife signed and sealed a deed in which she joined with her husband for the purpose evidently of releasing or barring her dower; she having no other interest. She was not otherwise mentioned in the deed. The conclusion that the deed was ineffectual to bar dower was rested upon the ground that a deed cannot bind a party signing and sealing it unless it contains words expressive of an intention to be bound.

The statute requisites of a deed in Michigan are that it be executed in the presence of two witnesses, who shall subscribe their names to the same as such. 3 Comp. Laws, §8962; 4 How. Stat. (2d Ed.) § 10824. But as between the parties deeds not witnessed are good. Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201); Carpenter v. Carpenter, 126 Mich. 217 (85 N. W. 576). As to lands owned by the husband, the wife joins in his deed for the purpose of releasing dower, and if the homestead is conveyed she is a necessary party to the deed because she has a peculiar interest in the premises by reason of the family relation and must join with her husband in conveying it. In practice it is usual, in every case where a married man conveys real estate, to name his wife in the body of the deed, in which, usually, she appears to have joined in making all of the covenants of the deed. Whether the purpose is to release the homestead interest, or to bar dower, the form of the deed is, usually the same. The Constitution (article 14, § 2) provides that the alienation of the homestead by the owner, if a married man, shall not be valid “without the signature of the wife to the same.” A married woman may bar her dower in any estate conveyed by her husband by joining in the deed of conveyance and acknowledging the same. 3 Comp. Laws, § 8930, 4 How. Stat. (2d Ed.) § 10922; Maynard v. Davis, 127 Mich. 571 (86 N. W. 1051). It would not be entirely safe, however, to conclude that the signature and acknowledgment by the wife to a deed in which she joined with her husband as grantor in conveying land owned by him amounted to no more than barring her dower. Where a wife joined with her husband in a warranty deed of his land and the sole consideration was paid to her, she was held jointly liable with her husband for a breach of the covenant against incumbrances. Arthur v. Caverly, 98 Mich. 82 (56 N. W. 1102). Decision was put upon the ground that she was contracting with respect to property to be held and owned as her separate estate. A married woman who held a recorded mortgage upon her husband’s land, which they occupied as a homestead, joined with him in a second mortgage upon the land. In a foreclosure of the second mortgage, it was claimed that in joining with her husband in giving the mortgage the wife had subjected her own mortgage interest to the lien of the junior mortgage. It was held that the execution by the wife of her husband’s deed of any sort implies that she executes it for the' purposes for which the statute requires such execution in order to make the husband’s deed effective; that if the intention is to affect any'independent interest of her own it is reasonable to expect some special provision in the instrument showing specifically in- what manner and how far her separate interests are intended to be affected. Kitehell v. Mudgett, 37 Mich. 81. A wife joined with her husband in giving a warranty deed of land in which he had a life estate, and the wife had a contingent interest as heir of her husband, created by the will of the husband’s ancestor, by which the life estate was also created. It was said:

“In Arthur v. Caverly, 98 Mich. 82 [56 N. W. 1102], it was held that a married woman uniting with her husband in a warranty deed of his property is liable on the covenant when she obtains all the consideration, which, in that case, was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband’s interest being simply' a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument, and to prove it clearly, and to show that she had brought herself within the rule above set forth. Mutual Benefit Life Ins. Co. v. Savings Bank, 68 Mich. 116 [35 N. W. 853]. This complainant has failed to do, and it necessarily follows that the wife’s signature to the instrument was a nullity, and did not bind her subsequently acquired estate.” Menard v. Campbell, 180 Mich. 592 (147 N. W. 556).

From these cases I deduce the following rulés:

(1) Usually, when a wife joins in the deed of her husband of his property, the covenants in the deed being in form the joint covenants of both of them, the covenants are not hers but are his only.

(2) If, however, it is made to appear that the sole consideration for the deed was received by her and was by her husband so intended, the covenants will be treated as the joint covenants of husband and wife. The fact may be shown by evidence aliunde the deed.

(3) While a wife may convey her separate interest in land as though she were unmarried, if the deed she executes, with her husband, is a proper and suitable instrument for the release of her dower or for consenting to the alienation of the homestead — such an one as she would be expected to execute if she had no independent interest — no purpose to affect her independent interest can be implied.

It is perceived that as affecting the wife the declarations in the body of the instrument are usually of no significance. The significant thing is that she joins her husband in executing the deed.

Neither the husband nor the wife can alone alien an estate held by them by the entireties. A deed or mortgage of such an estate executed by either, alone, is a nullity, before and after the death of the non-consenting spouse. Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595). At least, if the conveyance is to a third party. Wilkinson v. Kneeland, 125 Mich. 261, 264 (84 N. W. 142). A wife has no dower interest in such an estate, or in such interest as. her husband has therein. To convey such an estate, one of them joins in the deed for the same reason that the other joins in it, and to accomplish the same purpose, namely, to alien the estate. Nothing can be accomplished except by joint action, and therefore they act jointly.

Defendants stand in the position of joint grantors, who must act jointly or not at all if the estate or any interest in it is to be aliened. In the instrument relied upon as conveying an interest therein one is named as grantor; the other is not named. Both have signed it, and both signatures are witnessed by two witnesses. Following the reasoning of our own decisions, to some of which I have referred, the implication is, and it is the only reasonable one, that the wife, one of the joint owners, signed the deed in order to make the instrument effective. We are permitted to adopt, and I think should adopt, the rule that in such a case the failure to name the wife as grantor in the body of the deed or other instrument of conveyance is not fatal. I quote and approve the language and conclusion of the Georgia supreme court in Sterling v. Park, supra. After referring to a large number of authorities, it is said (page 312 of 129 Ga. [58 S. E. 829, 13 L. R. A. (N. S.) 303, 121 Am. St. Rep. 226, 12 Am. & Eng. Ann. Cas. 202]):

“Most of these decisions were based upon the ground that a wife could not relinquish her right of dower unless the conveyance contained apt words expressive of such intent. But the weakness of the reasoning, in our judgment, is the clinging to an ancient rule of the common law which grew out of the environment and civilization of the sixteenth century, when such conditions do not exist in our own civilization. As was very pertinently said by Woodbury, J., in Elliot v. Sleeper, 2 N. H. 525, decided as early as 1823:
“ ‘Here, however, a deed must by statute be attested; and since seals have ceased to be distinguished by peculiar devices, and education has become more generally diffused, signing would seem to be proper and indispensable. When a deed is signed, the utility of naming the grantor in the premises or any part of the body of the instrument appears in a great measure superseded; for “know,” says Perkins, § 36, “that the name of the grantor is not put in the deed to any other intent but to make certainty by the grantor.” Bacon’s Ab. “Grant” C. This certainty is attained whenever a person signs, seals, acknowledges, and delivers an instrument as his deed, though no mention whatever be made of him in the body of it; because he can perform these acts for no other possible purpose than to make the deed his own. In a deed poll, like that under consideration, where only the grantor speaks or signs or covenants, there is still less danger of mistake and uncertainty concerning the party bound, than in deeds indented.’
“In agreement with the New Hampshire case are Armstrong v. Stovall, 26 Miss. 275; Ingoldsby v. Juan, 12 Cal. 564; Hrouska v. Janke, 66 Wis. 252 (28 N. W. 166). Text-writers now very generally discard as unsound the proposition that the grantor should be named as such in the deed, and approve those cases , which hold that the conveyance is operative when signed by the grantor, though his name be omitted from the body of the instrument. 3 Washburn on Real Prop. 2120; 1 Devlin on Deeds, § 204.
“The requisites of a deed under the Code are that it must be in writing, signed by the maker, attested by at least two witnesses, and delivered to the purchaser or some one for him, and be made on a valuable or good consideration. No prescribed form is essential to the validity of a deed, and the instrument will be deemed sufficient if it make known the transaction. Civil Code, §§ 3599, 3602. We think that the deed under discussion measures up to these statutory essentials and is effective as a conveyance of the defendant and her coremainderman, though their names are not mentioned in the body of the instrument. See, in this connection, Ball v. Wallace, 32 Ga. 170.”

See, also, Sloss-Sheffield Steel, etc., Co. v. Lollar, 170 Ala. 239 (54 South. 272); Barrett v. Cox, 112 Mich. 220 (70 N. W. 446).

It is probable that if the weight of authority depends upon the number of decisions, old and new, my conclusion is opposed to the weight of authority. See Cordano v. Wright, 159 Cal. 610 (115 Pac. 227, Ann. Cas. 1912C, 1044), and cases cited in opinion. I conclude that the instrument creating the option was not, for that purpose, invalid.

It is singular that there should be a dispute, at least a failure to agree, about the width of the strip defendants own. Record evidence of title does not appear to have been produced by either party. Complainants can gain no title, through a deed from defendants, to land defendants do not own. The bill is framed according to no theory of an abatement of the purchase price to correspond with the quantity of land defendants own. The evidence upon the subject, aside from the oral statements of defendants, or one of them, is found in the lease and option in which defendants assert title to 40 feet. If the defendants own but 33 feet, there ought not to be two suits to adjust differences which should be settled in one. However, as the record stands, there appears to be no warrant for modifying the decree.

It is therefore affirmed, with costs to appellees.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Stone, J.

text:
    HAGAR v. SCHLIESS.
    1. Equity — Practice—Plea—Appeal.
    In a suit in equity, upon the filing of a plea to the bill of complaint, the proper practice is to set the plea down for argument, unless the truth of the facts therein stated can be controverted by testimony.
    2. Appeal and Error.
    If the plea goes to the whole case and disposes of the controversy, and the defendant has allowed to lapse the right to answer after his plea has been overruled by the court on hearing the proofs, the order should be treated as final and appealable.
    S. Same — Hearing—Plea—Judgment.
    Where the defendant in a suit to enforce a mechanic’s lien filed a plea to the bill on the alleged ground that complainant was engaged in business in violation of Act No. 101, Pub. Acts 1907, under a fictitious name, and where the complainant entered a replication to the plea, which replication, on the hearing, the court struck from the files granting permission to the defendant to withdraw the plea and file an answer and formally overruling the plea, also allowing the defendant twenty days in which to answer, and where the defendant, instead of filing an answer permitted the complainant to take a decree pro confesso, the order of the court was a final and appeal-able order, and the appeal should not be dismissed on the motion of the appellee.
    Bill by Alton J. Hagar against Frank C. Schliess and George J. Bachman, copartners, doing business as Schliess & Bachman, and others. Defendants filed a plea which was overruled with leave to answer. From a decree pro confesso for complainant, defendants appeal. On motion to reinstate the appeal after dismissal.
    Submitted November 24, 1914.
    (Calendar No. 26,382.)
    Motion granted December 19, 1914.

      Russell R. McPeek, for the motion.

      Clapperton, Owen & Hatten, contra.

   Stone, J.

This case is now before us upon the motion of the defendants to reinstate their appeal, upon the ground that we erred in dismissing it. The history of the proceedings and of the steps taken therein is as follows:

Complainant filed his bill of complaint to foreclose a mechanic’s lien for lumber and material furnished by him to defendants Schliess and Bachman and used in the construction of a certain building for the defendants. To this bill the appellants filed a plea, duly verified, setting up in brief that, at the time complainant entered into the contract alleged in the bill, he was doing business under the assumed name of the Hagar Lumber & Coal Company, of which he was the sole proprietor; that under the above business name he entered into this contract, and as such furnished the materials in question; that at the time of entering into this contract, and while he was so conducting his business, complainant had not filed in the office of the clerk of the proper county the certificate required by Act No. 101 of the Public Acts of 1907, entitled “An act to regulate the carrying on of business under an assumed or fictitious name.” The plea properly raised that sole question. Upon this plea complainant took issue by filing a replication, followed by the service of notices of taking proofs in open court and of hearing. The case was heard upon the sole issue thus framed by the trial court. In an opinion filed by the court it was said that “on the hearing there was no attempt to disprove the truth of the plea, and its truth w;as established beyond a doubt.” However, on June 22, 1914, an order was filed and entered, concluding as follows:

“It is hereby ordered that the replication filed by said complainant herein is hereby stricken from the files of said cause, and may be withdrawn by said complainant, and that the said plea of said defendants be, and the same is hereby, overruled, and that the said defendants answer the said bill of complaint within twenty (20) days from the entry and filing of this order, and that, in default thereof, the said bill be taken as confessed by the said defendants for want of. an answer.”

With the record standing in this condition the defendants (except defendants Schliess and Bachman) on August 4, 1914, filed and served notice of appeal to this court. The appeal was perfected in due time, and the case was placed upon the October, 1914, docket for hearing.

A motion was made by complainant to dismiss the appeal, for the reason that the order overruling the plea was not a final order from which an appeal could be legally taken, but that the same was interlocutory and not appealable. On October 12, 1914, we granted the motion to 'dismiss the appeal, making the following memorandum:

“Appeal dismissed, without prejudice to raise the question by answer.”

The appealing defendants now ask us to re-examine the matter for the following reasons:

(1) Because this court overlooked the fact that the defendants had irrevocably abandoned their right to file an answer in said cause, and had in their brief upon said motion declared their sole reliance upon their plea filed in said cause and the issue framed thereon.

(2) Because the court overlooked the fact that said defendants, in waiting for the time granted them by the trial court in which to answer, to elapse, before taking their appeal from the order overruling their plea, were by law barred from answering, and were legally deemed to have elected to abide by their plea.

(3) Because defendants have abandoned their right to answer in said cause, and have elected to abide by their plea and the issues framed thereon in the final disposition of said cause.

In defendants’ brief, in answer to the motion to dismiss, they said:

“In this cause we have irrevocably abandoned our right to answer, electing to stand or fall on the issue framed under the plea, and we respectfully urge that we should not be denied a hearing on this, the only question involved.”

The last clause of subdivision “f” of Chancery Rule 8, relating to pleas to bill, is as follows:

“If the facts are determined for the complainant, the effect shall be the same as though the bill of so much thereof as is covered by the plea was taken pro confesso.”

It is very evident that the plea in this case is to the whole bill. No doubt the proper practice in this case would have been to have set the plea down to be argued, if it was desired to test the legal sufficiency of the plea. Instead of that course being taken, a replication was filed and proofs taken; the trial court finding that the matters alleged in the plea were true in fact, but must have reached the conclusion that they were insufficient in law to defeat the bill.

It is the claim of appellants that this question should be treated as governed by the case of Cross v. Cross, 54 Mich. 115 (19 N. W. 919). That is a very short case. There was a motion to dismiss the appeal. The following is the opinion in full:

“Per Curiam. Bill for divorce. The defendant interposed a plea that he was never married to the complainant. The court, on hearing upon this plea, overruled it, and gave defendant leave to answer within 20 days. Without waiting for the expiration of the 20 days, defendant appealed, and complainant moved to dismiss the appeal on the ground that the order overruling the plea was not a final order.
“The defendant undoubtedly had a right, within 20 days, to elect to abide by his. plea, or to answer, under the permission given him. Had he waited till the expiration of the 20 days without answering, and then appealed, we should have had no doubt of his right to take that course. And we are inclined to hold that when he appeals within the 20 days, he thereby elects to stand by his plea, and not to accept the permission given him to answer; and, in this view, the appeal may be saved.
“Motion denied, without costs.”

It is urged by appellants that the rule above declared has never been changed, but that it has been recognized since by this court. It will be noted that the appealing defendants allowed the 20 days in which they could answer to elapse before claiming their appeal, thus depriving themselves of the right to answer, and permitting the bill to be taken as confessed.

In Cross v. Cross, supra, the only doubt expressed by this court as to appellant’s right to appeal arose from the fact that his appeal was taken within the 20 days granted him in which to answer, but even that was held not to be fatal. But it would seem that the appellants in this case are within the rule suggested by this court as leaving it in “no doubt of his right to take that course.”

The question arose next in Miller v. McLaughlin, 135 Mich. 646 (98 N. W. 390). We have been unable to procure the record in that case, but enough appears in the opinion to distinguish it from the Cross Case. The motion there was to reinstate an appeal, and this court said:

“This case is unlike the case of Cross v. Cross, 54 Mich. 115 [19 N. W. 919], cited by appellants. In that case this court sustained the right of a defendant to appeal from an order overruling a plea and permitting him to answer, on the ground that, by appealing, ‘he thereby elects to stand by his plea, and not to accept the permission given him to answer.’ Appellants cannot complain that this court did not sustain their appeal on this ground. Notwithstanding their appeal, they distinctly claimed the right to answer, and two of them have since that time, as we are informed by their counsel, exercised that right.
“Motion to reinstate appeal is therefore denied.”-

The question next arose in Wells v. Montcalm Circuit Judge, 141 Mich. 58 (104 N. W. 318, 113 Am. St. Rep. 520). That was an application for a writ of prohibition to restrain the exercise of jurisdiction in a divorce proceeding. This court, in its reasoning why a writ of prohibition might issue, referred to the fact that there had been a plea interposed in the divorce case, and used this language:

“No relief can be obtained by appealing from the order overruling the plea. That order is not appealable. See Miller v. McLaughlin, 135 Mich. 646 [98 N. W. 390].”

It will be noted that the court refers solely to Miller v. McLaughlin, but, whether the circumstances were the same, we are unable to determine; but it may be said that the ruling was in reliance upon that case. The latest expression of this court on this subject is contained in Painter v. Land Co., 178 Mich. 47 (144 N. W. 483). We invite attention to the opinion of Justice Bird in that case and to the following language :

“A hearing on the plea was had before the chancellor, and resulted in the following order being made:
“ ‘It is ordered, adjudged, and decreed that said plea be and the same is hereby overruled, but without prejudice to the defendants to raise by their answer the same defense as is raised by and set forth in said plea.
“ ‘It is further ordered that the defendants have 15 days from and after this date in which to answer said hill of complaint, or take such steps therein, as may he advised. Provided, however, that if an appeal or other method of review he taken from this order to the Supreme Court of the State of Michigan, the defendant shall have 15 days in which to answer said hill after said cause has been determined in said Supreme Court, if defendant takes steps to appeal to the Supreme Court within the time prescribed by statute.’ ”

The defendants, took an appeal to this court. The complainants moved to dismiss the appeal for the following reasons:

“Because the order is not a final order, and therefore is not appealable.”

We further quote the language of the opinion:

“The general rule is that a judgment on a plea in abatement is not final in the sense that it may be reviewed before the final determination of the cause. 2 Cyc. p. 607, and cases cited. It would not be, in any event, unless it affected the merits of the controversy. Miller v. McLaughlin, 135 Mich. 646 (98 N. W. 390); 2 Cyc. p. 587. It is quite apparent that the order made by the trial court has no such effect. The court said, in effect, to the defendant by its order, there may be some merit in your plea, but if there is, I am not going to determine it until I hear the whole case upon its merits. I will overrule it now, but it shall be without prejudice to your raising the same question in your answer. In other words, the court examines the plea, listens to the arguments thereon, and postpones his decision thereof until he hears the whole case on its merits. This practice finds support in Puterbaugh’s Chancery Practice, p. 97, and cases cited. The order as made is in no sense a final order, and is therefore not appealable.”

In our opinion the case of Cross v. Cross, supra, and the instant case are readily distinguished from Miller v. McLaughlin and Painter v. Land Co., supra. In the instant case the plea was to the whole bill and affected the merits of the entire controversy. By the overruling of the plea and the lapse of the time in which, defendants could answer, the bill of complaint was, under the rule, taken as confessed, and in our opinion the defendants are without remedy, unless it be upon their appeal.

Referring to page 97 of Puterbaugh’s Chancery Practice, cited above by Justice Bird, the reason of the rule applied by him in that case is well stated:

“It sometimes happens that, upon the argument of a plea, the court considers that, although so far as then appears, it may be a good defense, yet there may be matters disclosed in the evidence which, supposing the matter pleaded to be strictly true, would avoid it. In such a case the court, in order that it may not preclude the question of allowing the plea, directs that the benefit of it shall be saved to the defendant at the hearing.
“The effect of an order for this purpose is to give the complainant an opportunity of replying and going into evidence without overruling the plea. And, when the benefit of the plea is reserved to the hearing, such parts of the bill as are covered by the plea are not to be answered, and neither party recovers cost until the hearing.”

It is manifest that such was not the view entertained by the trial judge in the instant case, but that, on the other hand, the order of the court below was, in case the defendants did not answer in 20 days, the bill of complaint should be taken as confessed by them. Notwithstanding the language used by this court, as above quoted, in the case of Wells v. Montcalm Circuit Judge, supra, we do not find that it has been the intention of this court to overrule the doctrine of Cross v. Cross, supra. We are of opinion that the rule there stated is. the correct one, and in a case where the plea goes to the entire bill, and, if good, effectively disposes of the entire case, and especially where the defendant has been by the lapse of time, or otherwise, deprived of the right to answer, the order should be treated as a final and appealable order. Furthermore, it may be said that this practice is in harmony with our statute (section 1, Act No. 299, Pub. Acts 1909), permitting appeals from orders overruling general demurrers, and-with the general line of authorities permitting appeals from orders decisive of the entire cause of action.

We think that it should be held that the appeal in this case was improperly dismissed, and that the same should be reinstated, but without costs, and the case will be placed upon the January, 1915, docket for hearing.

It will be so ordered.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: McAlvay, J.

text:
      In re THOMPSON’S ESTATE.
    1. Executors and Administrators — Estates of Decedents — Resignation of Administrator — Appointment of Successor.
    Where the administrator of an estate presented his resignation at the request of the judge of probate and an administrator de bonis non was afterwards appointed upon the petition of certain creditors, the action of the court was valid, though the final account of the first administrator had not been settled or allowed and he had not been formally discharged by order of the court. 3 Comp. Laws, §§ 9333 and 9334 (4 How. Stat. [2d Ed.] §§ 11049, 11050).
    2. Same — Statutes—Pp.incipal and Surety — Bonds.
    Under the proviso of section 9333, supra, the sureties on the bond of the administrator are not relieved until the final adjustment of his account and it cannot be said that it was the legislative intention to suspend the administration of the estate until the account of the administrator had been filed and allowed.
    3. Same — Appeal and Error.
    Evidence tending to sustain the finding of the circuit judge sitting without a jury that the price which the administrator had secured for certain real estate was reasonable and adequate, requires the court on error to affirm the conclusion so reached.
    4. Same — Account—Tax Title — Final Account oe Administrator.
    Nor was error committed by the lower court in allowing as a part of the account certain expenditures of the administrator made in .good faith to purchase a tax title that was held against property which decedent had conveyed by warranty deed to a third party, where the payment had been made on the advice of an attorney and with the consent of the probate court.
    5. Same.
    A discount of $100 upon one of the mortgages of the estate that the administrator had negotiated, after making inquiry and securing the best available terms at that time, was properly allowed as one of the disbursements or credits, and was matter for the discretion of the circuit court.
    6. Same — Brokers—Commissions.
    The commission and fees of a broker paid to him by the administrator, who also claimed his statutory fees for selling real estate, should not be allowed as an expense of administration: the amount fixed by statute is the measure of compensation: to allow further fees would amount to a double payment, especially in a case in which the parties both admit that the administration is entitled to the claimed commission.
    7. Same — Extra Compensation.
    The probate judge has no authority to agree in advance that an administrator shall receive as his compensation $1,000 during the first year. Such an agreement could not be indirectly enforced by allowing it on appeal, as extra compensation, and an attempt so to do must be held unwarranted.

      8. Same — Extraordinary Services.
    ' The matter of extra compensation is a subject for the probate court in the first instance and cannot be determined by the circuit court on appeal or by the upper court on writ of error.
    Error to Osceola; Withey, J.
    Submitted November 21, 1913.
    (Docket No. 131.)
    Decided January 4, 1915.
    Elmer F. Birdsall presented Ms account as administrator de bonis non of the estate of Edward C. Thompson, deceased. It was allowed in the probate court, and was affirmed in part and modified as to the matter of compensation by the circuit court on appeal. Blanche Cox and certain other heirs bring error.
    Reversed.

      Hall & Gillard, for appellants.

      G. A. Wolf, for appellee.
   McAlvay, J.

This case was an appeal by four heirs of the deceased from an order of the probate court of Osceola county allowing two annual accounts of E. F. Birdsall, administrator de bonis non of said estate, and was tried before the circuit court of said county without a jury. Said court, having made a finding of facts and conclusions of law, entered a judgment thereon in effect affirming the conclusions of the probate court, dismissed the appeal without costs to either party, and ordered the judgment to be certified to the probate court in accordance with the usual practice.

The facts necessary to be stated in this opinion are that deceased, who during his lifetime was engaged in the grocery business and farming in Evart, Osceola county, died intestate in May, 1907, leaving an estate of real and personal property which was inventoried at the sum of $65,864.89, consisting mostly of real estate, against which there were liabilities in the nature of mortgage indebtedness, with accrued interest, and also unpaid taxes and claims allowed by the commissioners, all amounting to $26,536.43. After his death his son, Edward C. Thompson, was during the same month appointed special administrator of his father’s estate, and later was appointed general administrator. He at once qualified and entered upon the duties of his office. Before his death the intestate executed and delivered quitclaim deeds of certain lands to three of his five heirs. In July, 1907, all of the heirs entered into an agreement which provided that the real estate so conveyed should be appraised as part of the estate of deceased and treated as a credit upon the share of each, after deducting all incumbrances against such property, and that each of the heirs should receive a one-fifth interest in his estate, including the deeded property, and that those who held the deeds should be considered as trustees for all the heirs. The son, from the time he was appointed administrator in May, 1907, acted in such capacity for said estate until December 13, 1909, during which time he filed no account of his acts and doings as such administrator. He filed such an account February 1, 1909, which was not acted upon until November 22, 1912.

In October, 1909, a creditor of the estate filed with the judge of probate a petition for his removal as administrator, upon which a citation was issued, which was never served. Later Blanche Cox, one of the daughters of deceased, filed a petition for the appointment of Elmer F. Birdsall as administrator de bonis non, on November 18, 1909, which was the date of the resignation of the son, Edward C. Thompson, as administrator, which resignation had been requested by the judge of probate. The petition for the appointment of an administrator de bonis non was heard and granted December 13, 1909, and the appointment duly made. The details, of this transaction need not be stated further than it is undisputed that the judge of probate had promised the new administrator before his appointment that he would receive $1,000 as compensation for his first year’s services if he would accept the appointment and assume the duties of the office. The new administrator immediately filed his bond, assumed the duties of his office, and took possession of all of the property belonging to. the estate, and has so continued to act, as far as the record shows, up to the time of the hearing of this case. On June 17, 1910, such administrator de bonis non filed an account in the probate court as such administrator, and on January 30, 1911, he filed another account, which two accounts comprise his first annual account of administration of the estate. He filed his second annual account February 20, 1912. Before the hearing upon this second annual account was had three of the heirs of deceased, being the appellants in the instant case, filed objections in the probate court to certain items in both the first and second annual accounts, and also objections to the legality of his appointment and of certain sales and disbursements made by him. These objections were overruled, and an order was made by the probate court allowing the account on April 23, 1912. From such order an appeal was taken under the statute to the circuit court, where the proceedings of the probate court were affirmed. Four of the heirs of Edward C. Thompson have brought the case to this court for review upon writ of error.

This estate, as appears already from the statement of the amount at which it was inventoried, was of considerable size, and, as also appears, was quite largely indebted upon mortgages and unsecured indebtedness. The record shows that its administration before the appointment of the administrator de bonis non was very unsatisfactory, and that at the time Mr. Birdsall undertook the duties of his office was not at all in a satisfactory condition. During the two years covered by the accounts of the present administrator he was actively engaged, and with fair success, in an attempt to relieve the estate from pressing indebtedness in the shape of mortgages and unsecured claims and to bring about a condition whereby as much as possible could be realized from the assets of the estate for distribution to the heirs. It will not be necessary to go into the details of his administration or the items of these accounts, except in so far as may be necessary in considering the specific objections which were made as to some of them and which were overruled by the trial court.

As already stated, the case was tried before the court without a jury, and findings of fact and conclusions of law were duly made and filed. Amendments to these findings and conclusions were proposed by appellants, and were all denied by the court and exceptions duly taken and errors assigned. These are all based upon the formal objections which were filed and considered upon the appeal heard in the circuit court. The errors assigned and relied upon will be considered in the order in which they were presented to this court by the appellants.

First. The first contention of appellants is that the appointment of Mr. Birdsall as administrator de bonis non was illegal, and consequently all his official acts were void, for the reason that his predecessor had not formally been discharged and his account settled. Supporting this claim, sections 9333 and 9334, 3 Comp. Laws (4 How. Stat. [2d Ed.] §§ 11049, 11050), are invoked. These sections read as follows:

“Sec. 9333. If an administrator shall reside out of this State, or shall neglect, after due notice by the judge of probate, to render his account and settle the estate according to law, or to perform any decree of such court, or shall abscond or become insane, or otherwise unsuitable or' incapable to discharge the trust, the probate court .may, by an order therefor, remove such administrator, and every executor and administrator, upon his request, may be allowed to resign his trust, when it shall appear to the judge of probate proper to allow the same: Provided, such executor or administrator shall, prior, and up to the time of his resignation, settle and adjust his accounts with the estate of which he may be executor or administrator: Provided further, that the sureties of such executor or administrator shall not be released from liability until such executor or administrator shall have fully settled and adjusted his accounts as aforesaid.
“Sec. 9334. When an administrator shall be removed, or his authority shall be extinguished, the remaining administrator, if any, may execute the trust; if there shall be no other, the court of probate may commit administration of the estate not already administered to some suitable person, as in the case of the death of a sole administrator.”

The situation in the instant case was that the first administrator had filed his resignation leaving the administration of the estate incomplete and its affairs in an unsatisfactory condition. A necessity arose, as the probate court found, for the appointment of an administrator de bonis non. The record does not show that the resignation was accepted and the administrator discharged. It does show that an administrator de bonis non was at once' appointed and entered upon the duties of his office, and that the former administrator took no further part in the settlement of the estate. It is an admitted fact that the first administrator had not settled and adjusted his accounts up to the time of his resignation. To require him to do so .was within the power of the probate court, a prompt exercise of which would have been highly proper. The statute relied upon by appellants expressly saves the estate, harmless to the extent of an administrator’s bond, stating in express terms that:

“The sureties of such executpr or administrator shall not be released from liability until such executor or administrator shall have fully settled and adjusted his accounts as aforesaid.”

It surely cannot have been the legislative intent to hold up the administration of an estate until such time as a former administrator’s accounts could be adjusted.

We agree with the learned circuit judge that this was a case where the court could very properly commit this administration to some suitable person, as provided by section 9334, supra, and that the statute relied on does not prohibit such appointment.

The second and third objections of appellants and the errors assigned thereon are waived.

The errors claimed and relied upon under the fourth, fifth, and seventh subdivisions of appellants’ brief will be considered together. They are as follows:

Fourth. That the sales of real estate to Mr. Beech and Mr. Glerum were so low. and for such an inadequate price as to be a fraud upon the heirs.
Fifth. That Mr. Birdsall paid claims which were not a proper charge against the estate.
Seventh. Mr. Birdsall paid between $250 and $300 to real estate agents for expenses in connection with the sale of the farm property, which is alleged to be illegal and void.

The fourth group of errors relates to the sales of two parcels of property made by the administrator de bonis non under authority by the court to sell at private sale under which seven other sales were made. The whole proposition turns upon the question of inadequacy of price received for these two parcels. The record shows that considerable testimony was offered and received as to the adequacy of the prices received for the two sales, and that the testimony of the witnesses who were acquainted with the property as to values differed materially. The contention of appellants is that the overwhelming weight of this evidence was against the finding and conclusion of the court. That there is evidence to support the sufficiency of the price received on these sales is not disputed. The court in his conclusions as to value, therefore, was not in error in holding that the prices received were adequate.

Under the fifth subdivision of appellants’ brief the claim is made that the administrator de bonis non paid certain claims that were not proper charges against the estate. The first of these is the sum of $100 paid to Mr. Riek, who held a tax deed against certain lands for the year 1881, which lands were acquired by deceased in his lifetime under a tax deed from the auditor general for the years 1892, 1893, and 1894, subsequent to the tax title of Riek. Some of these lands deceased conveyed by warranty deed to Ezra Pfohl, and the disputed $100 was paid for a quitclaim deed from Mr. Riek of that portion sold to Pfohl. The contention of appellants is that this was absolutely unauthorized and void; that no such claim was ever presented to the commissioners on claims; that the grantee of deceased had made no claim of breach of warranty. The court held that the payment, having been made under the advice of an attorney, with the consent of the probate court, was a proper payment. There is no question as to the good faith of this settlement. It was not a question whether it was a claim against the estate, as the foregoing statement shows. The matter was submitted to a reputable attorney, who advised a settlement, which was accordingly made, and, under the circumstances, we think it was properly allowed.

The next item referred to is the sum of $100, a discount paid to a bank at Evart by the administrator in order to realize needed funds to use for the benefit-of the estate. The record shows that he made inquiry of several banks in attempting to cash a mortgage of $4,500. The act, in our opinion, was one within his reasonable discretion, and the amount was properly allowed by the trial court.

Seventh. Under this subdivision of the assignments of error appellants claim that the payment by the administrator of 2½ per cent, to certain real estate agents for bringing about the sale of what is known as the farm property was illegal and unauthorized, and that the court was in error in allowing the same. That the services were rendered, and that the price charged was not unreasonable, is not in question. Appellants rely solely upon a construction of section 9438, 3 Comp. Laws (4 How. Stat. [2d Ed.] §11149). This statute fixes fees for such services,' to be paid to executors and administrators. Such fees are charged in this administrator’s account, and appellants concede that they should be allowed at statutory rates. The contention that to this may be added the further percentage of $250 as commissions to the real estate agents involves the proposition that on the sale of real estate by an administrator the statutory fees may be disregarded. The exact question has never been passed upon by this court, and is one of considerable importance. In our opinion, the provision of the statute for commissions allowed execu» tors and administrators on the sale of real estate is the measure of compensation for the discharge of such duties, whether the sales were made by the executor or not, and therefore that credit for commissions paid agents for effecting sales of real estate should not be allowed in addition to the statutory fees. This is the construction given by the supreme court, of the State of Missouri to a somewhat similar statute. Jacobs v. Jacobs, 99 Mo. 427 (12 S. W. 457). See, also, In re King’s Estate, 110 Mich. 203 (68 N. W. 154).

The administrator de bonis non elected to take as his compensation the statutory commissions on amounts collected upon all sales made by him, and has included the same in his account; therefore to allow this amount paid to real estate agents for the same services would be a double payment and illegal. The court was in error in allowing this item for commissions paid to the real estate agents, for the reason that it was not authorized.

Sixth. The sixth contention of appellants, which has been left to be considered last because of its importance as to amount and as to the question involved, is stated by appellants as follows:

“(6) That before Mr. Birdsall would accept the appointment of administrator Judge Chase agreed to pay him $1,000 as his fees for his first year’s services, and Mr. Birdsall paid himself. $1,025 as his fees for the first year.”

The only reference by the court to this matter in the findings of fact is as follows:

“I find that Mr. Birdsall has rendered extraordinary service to the estate, for which he is reasonably entitled to extra compensation in the sum of $810.”

And in the conclusions of law we find the following:

“The appeal for commissions and extra compensation, amounting in all to $1,025, presented and allowed by Mr. Birdsall with his first annual account, is objected to, because Mr. Birdsall was promised extra compensation if he would assume the duties of the office. The evidence tends to show that Mr. Birdsall was reluctant to take the appointment, and was urged to do so, and was indirectly informed that the probate judge would allow him extra compensation. Such an arrangement would be absolutely void, and it violates every principle of the probate law, and I therefore repudiate it. However, I have no doubt at all but what Mr. Birdsall’s ability as a business man saved to the creditors of this estate and saves to the heirs anything they get. Now, it would not be right to turn him out of court without an extra allowance. And I do not think the heirs can have a single thing to complain of, except the way in which it was brought about; the result was all right, in my opinion. While I set aside the order of the probate court in this respect, I will allow the compensation myself. And I allow it at the same sum as was presented in the court below — $810 extra compensation.”

The court, in the conclusion of law just quoted, repudiated the offer made by the probate judge to the administrator previous to his appointment to pay him for his services during the first year $1,000, as absolutely void and violating every principle of the probate law, and set' aside the order of the probate court allowing compensation. After doing this, the trial court, on its own initiative, allowed $810, the amount in dispute in this matter, as extra compensation to the administrator de bonis non. Appellants contend that such action was erroneous.

A careful reading of all the testimony does not show any oral evidence in the case to the effect that the account of the administrator for compensation was allowed at the time of the hearing of his first annual account, April 4, 1911. All of the witnesses who testified upon the question, including the administrator, agree that the account was before the court at that time and was discussed at length. Several of these witnesses swear positively that it was not allowed at that time, and that the probate judge stated in open court that it would be passed for the present, and the hearing was adjourned. This first annual account was filed in two parts, as already appears in this opinion. The first part was filed July 15, 1910, and the second January 30, 1911. The record shows that an examination of the probate court records made by Mr. Hall, one of appellants’ attorneys, March 20, 1912, showed no such order had been entered, filed, or indexed, and at that time the probate judge for the first time informed Mr. Hall that he had allowed the account in question, but had not made any order concerning it.

The record shows that this account for services, which included commissions for sales of real estate which are not contested, appears attached to, and as a part of, the second annual account of this administrator, which was not filed until February 20, 1912, and was passed upon April 23, 1912. It further appears undisputed that on January 10, 1911, the administrator drew his check No. 108 on the First State Savings Bank of Evart to his own order for $1,025. This check was paid February 8, 1911, and is printed in the record. It is not disputed that this, was in payment of this claim for compensation, and was taken by him from the funds of this estate three months before its presentation and claimed allowance by the probate court.

Portions of what were represented to be the original files and records in this case were presented to this court and used by consent of counsel upon the argument of the instant case and were examined by the court. From these books and papers it appeared that the order claimed to have been made by the probate court was not entered in due course according to the dates of orders before and after it, nor in the journal of the court, but appeared in what was labeled as “Miscellaneous Records No. 2,” which book, it is claimed, was not offered in evidence on the part of the administrator or identified by the probate judge, who, although present in court during the trial, was not produced and sworn as a witness; and it further appeared that the date either on the order or the disputed account was first written April 4, 1912, and the 2 changed to 1, to make it read April 4, 1911. The only proof of this order offered on the part of the administrator was the order itself, as above described, which the record .shows was found in the files of the case in March, 1912. It further appears that the claim that this disputed item for compensation belongs to and is a part of the second annual account is not supported by the evidence of the order itself, which shows that its allowance antedated the hearing of the second annual account by more than one year. Our conclusion is that, from the overwhelming evidence in this case, this disputed account was never allowed by the probate court. The proceedings which are claimed to have resulted in such action on the part of the probate court cannot be dignified by this court as regular judicial action, and must be considered as absolutely void and of no effect. This must be taken in connection with the undisputed agreement of the probate judge to pay $1,000 to the administrator for his first year’s services. The trial court correctly took this view of the matter and set aside the action of the probate court.

The appeal made in this case from the allowance by the probate court for services to the administrator was on the ground that such order was made in pursuance of the agreement of the probate judge, already stated, and was therefore absolutely void. Upon that theory this item was attacked by appellants, and the case was tried in the circuit court. Upon their appeal to this court the same contention is made. They have continually insisted that this was- not an allowance of extra compensation contemplated by the statute, but that it was done in fulfillment' of an agreement. The court held that “such an arrangement would be absolutely void* and it violates every principle of the probate law, and I therefore repudiate it,” and thereupon set aside the order. Thereby the whole order of the probate court was set aside. No part of such an order could survive. It was all absolutely void. As already indicated, this claim for services included no element whatever based upon a claim under the statute for extra compensation. Such claims must be made primarily in, and passed upon by, the probate court. Questions upon the allowance or disallowance of such claims are first raised in the probate court, and only find their way to the circuit court for review by an appeal to that court. Therefore this question of the allowance of' extra compensation under the statute to the administrator in this case was never properly before the circuit court for determination. The court, therefore, was in error in allowing the sum of $810 to the administrator for extra compensation. There was, however, due the administrator from the estate the sum of $215 commissions on sales of personal and real estate to which he was entitled under the statute and which has always been admitted by the appellants to be a legal charge against this estate and which must be allowed.

Some errors are assigned upon the rejection of evidence. They have been examined, and we are satisfied that they do not require consideration. This disposes of all assignments of error which have not been waived in appellants’ brief, except the matter of costs, which we grant appellants.

The judgment of the circuit court is reversed, and, as there are no disputed questions of fact to be de> termined, the case will be remanded to the circuit court, where a judgment will be entered in accordance with this opinion, with costs of both courts against the administrator de bonis non, to be taxed without prejudice to the presentation of the administrator’s claim for compensation to probate court.

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


author: Bird, J.

text:
    REDFIELD v. MICHIGAN WORKMEN’S COMPENSATION MUTUAL INSURANCE COMPANY.
    1. Master and Servant — Dangerous Machinery — Warning — Contributory Negligence — Workmen’s Compensation.
    Where a former superior servant of -a corporation testified that signs were placed on machines in the shop, marked “Hands Off,” to warn employees from touching the machinery, for the reason that such act tended to disturb' the adjustment, and the warning was not intended as a danger sign, there was sufficient testimony to support the finding of the Industrial Accident Board, that the warning was not against danger.
    2. Same.

      Held, also, that signs placed about the shop advising servants not to clean machinery in motion did not prohibit an employee from removing collections of cotton which frequently gathered on a guard of the carding machine and that required to be removed in order to prevent imperfections in the cloth.

      3. Appeal and Error — Industrial Accident Board.
    Only -where there is no proof to support a finding of fact can the court interfere with the finding of the accident hoard on certiorari.
    4. Master and Servant — Workmen’s Compensation — Insurance
    —Practice.
    Where the date of hearing was fixed on September 9th, and the insurance company which indemnified the employer against accidents did not appear, but ■ the attorneys for claimant appeared and were heard, no ground of objection could be based on the action of the board in declining to hear further testimony, though granting the insurer a hearing on a subsequent date.
    Certiorari to the Industrial Accident Board.
    Submitted January 20, 1914.
    (Docket No. 157.)
    Decided January 4, 1915.
    Katharyn Redfield presented her claim for compensation for the death of her husband, William Red-field, while employed by the Dr. Denton Sleeping Garment Mills. Contestant, the Michigan Workmen’s Compensation Mutual Insurance Company, bring certiorari from an order awarding compensation.
    Affirmed.

      Beaumont, Smith & Harris, for appellant.

      George H. Arnold, for claimant.
   Bird, J.

Claimant’s husband, William Redfield, was an employee of the Dr. Denton Sleeping Garment Mills, at Centerville. On April 18th, while so employed, he received a serious injury to one of his hands, which resulted later in an amputation of three fingers. Gangrene set in, and 16 days thereafter he died. His widow petitioned the Industrial Accident Board to have her claim adjusted. Proofs were taken and an award made by an arbitration committee of $5.25 a week for 300 weeks. On appeal to the Industrial Accident Board the award was affirmed. The proceedings were then removed to this court by a writ of certiorari.

Exception is taken to the following findings of fact, it being claimed that the testimony does not support them:

“(15) At the time of the accident there was on each of the carding machines one or more signs reading, ‘Hands Off,’ such being placed on the machines by the manufacturer. These carding machines are so adjusted that they operate through a system of weights, and, when the weight reaches a certain point, the machine dumps down upon the apron; and, if a person coming near the machine should rest his hand upon it, such action would disturb the mechanism and cause the machine to dump, thereby seriously interfering with its operation. That the sign, ‘Hands Off,’ was put up, not as a warning against danger, but to prevent people from disturbing the operation of the machine and so cause it to dump.
“(16) There were also signs posted in the room reading, ‘Cleaning machinery while in motion positively forbidden.’ But this did not have reference to picking- off cotton while machine was in motion, caught on different parts of the machine but not in a dangerous place. Picking off accumulations of cotton while the machine was in motion was part of the duty of the operator.”

It appears from the record that the deceased was engaged in the carding room, in which there were four carding machines. Each machine consisted of a picker, a breaker, and a finisher. While these are different machines, they are connected together and operated as one set. The deceased had charge of one set, and it was his duty to watch the yarn as it came from the carder and take care of the machines while they were in motion. The' testimony tends to show that the deceased was working at the time of his injury on the finisher. The finisher consists, in part, of two cylinders with protruding ends of small wires. As the cylinders revolved in opposite directions, they separated the cotton. In front of the cylinders, and close to them, was a metal guard to protect the operator against injury. Sometimes the cotton would collect on this guard, and, if not removed, it would cause an imperfection in the product. The findings show that it was near this guard that the injury occurred. Exception to finding No. 16 raises the question as to whether the removing of the cotton at this point was cleaning the machines, in such a sense as to make his conduct a violation of the posted rule that, “Cleaning machinery while in motion is strictly forbidden.”

Touching this question, Frank S. Cummings, who had been formerly general manager, and was at the time secretary and treasurer of the company, testified as follows:

“Q. I will ask if when you were manager, if a little piece of cotton got close to the wire where it. was. not- considered dangerous to pick it off, would they pick it off without stopping the machine?
“A. Any careful employee, any conscientious employee, kept his machine clean.
“Q. Well, now, to get to that, would he pick off the cotton there?
“A. Yes, sir.
“Q. Where it might interfere with the product?
“A. Yes, sir; with reasonable care there was no danger.
“Q. Would you consider this sign, ‘Cleaning machinery,’ would it apply to picking off that little cotton that might injure the product — would you stop the machine fqr that?
“A. If it was not in a dangerous place, it did not apply to that; it was commonly done.
“Q. That is, the employees were expected to do it, weren’t they, to keep them clean and pick off anything like that?
“A. Yes, sir.”

Frank S. Thomas, manager of the company, testified that:

“I posted the signs all over the mill as a general precaution against accidents that might result from cleaning machinery while it was in motion. * * *
The common custom, however, is in the mills to pick the cotton off from the cards, and I do not think our understanding of the words ‘cleaning machinery,’ included that.
“A, As I say, I don’t think our understanding of ‘cleaning machinery’ included picking off such as it was reasonably safe to pick off while the machines were in motion, because it was really impractical to handle the machines in any other way.
“Q. To stop the machines to pick off a little cotton that might be caught in there that you could reach handily would impair the product of the machine?
“A. Yes, sir; every time you stop the card, there is unevenness produced in the work, and, of course, it involves a loss of time, and naturally every practicable attempt to keep the machine in continued operation is taken.”

The testimony relied upon to support finding No. 15 is as follows: Speaking of the sign on the machinery, “Hands Off,” the witness Frank S. Cummings testified:

“A. Yes, sir; those, perhaps, if I may be permitted to explain, were never put there as an indication of danger.
“Q. Did you put them there?
“A. Yes, sir; I was here when the machines were bought, and they were on the machines when they were put there by the manufacturers of the machines.
“Q. You don’t know why the manufacturers put them there?
“A. Surely, simply because putting your hands on them disturbed the mechanism of the machinery. There is no danger from that. The machinery operates through a system of weights, and, when it reaches a certain weight, then it dumps down onto the apron, and, if anybody puts their hands in-there, and disturbed the mechanism, it makes it work irregularly, and it has to be repaired, it is simply a delicate piece of machinery that ought not to be handled.
“Q. Is there any danger connected with it at all ?
“A. Not a particle.”

Unless there was no proof to support the finding of fact, this court has no power to interfere. The foregoing testimony affords some proof of the facts therein found. It follows therefore that the exceptions to these findings must be overruled.

Several legal questions are raised and discussed by appellant. Most of them rest upon the assumption that the foregoing exceptions are well taken. The exceptions having been overruled, it will be unnecessary to consider them.

A further question is raised that the death of the deceased was caused by the disease diabetes. This was a question of fact. The board, after taking the proofs, decided that this claim was not established by the evidence. An examination of the evidence bearing upon that question convinces us that there was room for such a finding, and therefore it must be regarded as final.

In connection with this question, another one is raised, and that is the refusal of the board to allow respondent to reopen the proofs after the day set for the hearing to permit further expert testimony to be introduced on.this question. The hearing on appeal was fixed for September 9th. On that day claimant’s attorney was present and was heard. Respondents did not appear; they evidently relying upon certain suggestions made by them to the board for an adjournment. The matter was then held open until October 8th. On that day the board gave respondents an opportunity to be heard, but refused to allow them to introduce expert testimony because of the absence of claimant’s attorney, and further refused to allow depositions to be taken in Detroit and elsewhere, because of the added expense to claimant to have her counsel present. Section 11 of part 3 of the law gives the parties the right to be heard, and the right to introduce additional testimony on appeal.' This right was given to them on' September 9th. The fact that appellants’ efforts to secure an adjournment proved-futile on September 9th did not make it incumbent on the board to grant further time in which to take additional testimony.

We think the determination of the board should be affirmed.

' Brooke, C. J., and M.cAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.