text:
    JONES v. HOME SAVINGS BANK.
    1. Trusts and Trustees — Accounting—Receipt Fraudulently Obtained.
    Where the trustee of an infant’s estate, upon the beneficiary’s becoming of age, rendered him an account, and the latter, having no personal knowledge of the transactions, gave his receipt upon the basis fixed by such account, and subsequently, after the trustee’s death, it was discovered, upon an examination of the .books by an expert accountant, whose finding was given by stipulation the force of that of a referee, that, at the time the receipt was given, a large amount remained in the trustee’s hands unaccounted for, the finding so far overcame the prima facie effect of the receipt as to leave no room for an inference inconsistent with liability.
    2. Same — Limitation op Actions.
    The fact that money due a cestui que trust is allowed by him to remain in the hands of the trustee after the termination of an express trust does not change the nature of the debt, and hence, until an accounting is had or demanded, the statute of limitations does not begin to run.

      Error to Wayne; Hosmer, J.
    Submitted June 14, 1898.
    Decided September 20, 1898.
    Henry K. Jones and Matilda C. Jones presented a claim against the estate of J. Huff Jones, deceased, for a balance due from decedent as trustee under the will of Catherine H. Jones. The claim was allowed by the commissioners, and the Home Savings Bank, a creditor, appealed to the circuit court. From a judgment for claimants on verdict directed by the court, contestant brings error.
    Affirmed.

      George W. Radford, for appellant.

      Sidney T. Miller, for appellees.
   Montgomery, J.

The hearing below was on an appeal from an allowance of a claim in' favor of the appellees by commissioners on claims. On the trial the circuit judge directed a verdict in favor of claimants. The Home Savings Bank, a creditor of the estate, defended against the claim in the .circuit court, and has brought error to review the proceedings on the trial.

As the circuit judge directed a verdict, the question presented is whether the testimony was conclusive to sustain the claim presented, or- whether, on the other hand, an inference of nonliability could be drawn from the whole testimony. The facts were not much in dispute. A history of the claim is, in brief, as follows: Catherine H. Jones, the grandmother of claimants, died testate, Octobor 18, 1865, bequeathing to J. Huff Jones and Augustus P. Thompson a considerable estate in trust for these claimants, to possess, control, and manage until the younger of the two claimants should attain the age of 21 years; and empowered the trustees to lease, sell, or mortgage any portion of the estate, and to invest the trust property in first-class securities, and to divide the property equally when the younger child should attain the age of 21 years. J. Huff Jones became the active trustee in the management of the estate. Henry K. Jones became of age October 30, 1883, and Matilda C. Jones on August 2, 1886. On August 11, 1886, the trustees deeded to Henry K. and Matilda O. Jones, jointly, all of the real estate held in trust, the active trustee, however, retaining control of the personal estate until March 10, 1888, when the personal property for which he accounted was turned over in equal parts, and a receipt in full given by each of the claimants, purporting to discharge the trustees from liability as trustees. J. Huff Jones died testate, but insolvent, December 16, 1892, Shortly after the death of J. Huff Jones, Henry K. Jones for the first time made an examination of the books of J. Huff Jones kept in connection with the books of another trust estate in the hands . of J. Huff Jones, and found substantial inaccuracies in the accounts. This directed his attention to the accounts kept by deceased of the transactions relating to the property of these claimants, and on examination he found inaccuracies in the account. Further investigation by the claimant and experts resulted in the presentation of the present claim.

After the presentation of this claim, an expert accountant, Mr. John H. Clegg, was employed to examine the books of deceased, and the result of his examination was a finding that there was on the 10th of March, 1888, a balance due the claimants of $25,258.07 over and above the amount accounted for. A stipulation was entered into between the parties, reading as follows:

“It is hereby stipulated and agreed by and between the parties hereto that the examination of the books and accounts of said suit, made by John H. Clegg, at the trial of this cause on appeal, may be treated as though such examination had been made by a referee, under the direction of the court, for the purpose of ascertaining the amount due from J. Huff Jones to claimants, according to the books and papers of J. Huff Jones in the condition they were in at the time of his death, and the amount so found due may be considered the same as if found by a referee; provided, that this stipulation shall not be construed as in any way to prevent the raising of an issue of fact or law based upon any alterations, omissions, or errors which may be found in the original entries and accounts of said J. Huff Jones, deceased, as to any part or all of said account, or of any question concerning the same; or likewise to prevent the raising of an issue of fact or law based upon dealings between claimants and said deceased concerning said claim, or any part thereof.
[Signed] “Sidney T. Miller,
“Att’y for Claimants.
[Signed] “George W. Radeord,
“Att’y for Appellant.”

In our view, this stipulation left very_ little to litigate. As regards the amount of the liability, if any existed, if the contestant had been able to show that 'this amount was incorrect because of omissions and errors or alterations, it was open to it to do so; but we do not think the testimony offered, when analyzed, impeaches the finding of Mr. Clegg. No special errors in the account are pointed out in the brief of appellant’s counsel, while the testimony of witnesses for claimants shows very clearly that the changes were made in the books either by J. Huff Jones or his bookkeeper, and in his lifetime.

It is contended by appellant’s counsel—

“That it was a question of fact for the jury to determine whether the investigations of Clegg were of sufficient weight and accuracy to show fraud, mistake, or misrepresentation on the part of J. Huff Jones, and thus overthrow the settlement of March 10, 1888, between claimants and J. Huff Jones, by which the former acknowledged payment in full, and released J. Huff Jones from all liability.”

We do not agree with this contention. All the testimony in the case was to the effect that neither of the claimants had ever examined into the transactions of deceased as their trustee. There was no pretense that they had personal knowledge of the transactions. It cannot be gainsaid that the receipts on their face show that the trustee had assumed to account for all the avails of their property; and yet at the very date, as appears from the finding of Mr. Clegg (whose finding is of the force of that of a referee), there was in the hands of this trustee, unaccounted for, more than $25,000. We are all ■satisfied that the .testimony on behalf of claimants not only overcame the evidence afforded by the receipts, but that it left no room for any inference inconsistent with liability.

The point is made that the claimants were barred by the statute of limitations before Mr. Jones’ death. As essential to this contention, the counsel for. appellant argues that, by the terms of the trust, the same terminated when Matilda C. Jones reached the age of 21 years. But the mere fact that money due the cestui que trust is allowed by him to remain in the hands of the trustee does not change the nature of the debt, and, until an accounting was had or demanded, the statute of limitations did not run. 2 Perry, Trusts, § 863 (p. 513, 4th Ed.), and cases cited; Frank v. Morley’s Estate, 106 Mich. 635.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    MORAN v. L’ETOURNEAU.
    1. Equity — Res Judicata.
    A decree dismissing, after a hearing on the merits, a bill to set aside for fraud a written agreement as to the compensation to be allowed by complainant to defendant as her attorney, is conclusive of the validity of the agreement, when attacked upon the same ground in a subsequent proceeding.
    2. Attorney and Client — Agreement eor Compensation.
    An attorney’s undertaking to “secure” for his client her rights in a decedent’s estate, in consideration of a stipulated interest in the property so secured, is fulfilled, so as to entitle him to the agreed compensation, where he performs all services necessary to the establishment of. his client’s rights, although the estate acquired vests in. the client by operation of law.
    Appeal from Wayne; Hosmer, J.
    Submitted June 14, 1898.
    Decided September 20, 1898.
    Bill by Charles Gr. Moran against Annie L’Etourneau to enforce an equitable interest in real estate. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Barbour & Bexford (W. F. & W. D, Atkinson, of counsel), for complainant.

      Jasper G. Gates, for defendant.
   Montgomery, J.

This suit involves the title of 5-81 of lots 21 and 22 of block 5 of the Cass farm, in the city of Detroit. August 26, 1860, Francis L’Etourneau died testate. These lots were part of his estate. In 1891 his will was construed by this court, and it was settled that the estate of Sarah L’Etourneau was entitled to 5-9 of the property. L’Etourneau v. Henquenet, 89 Mich. 428 (28 Am. St. Rep. 310). The daughter of defendant, Margaret L’Etourneau, claimed to be entitled to 3-54 of the estate as heir to her father. The decree of the circuit court recognized this right, but by the terms of the decree in this court she was excluded from so taking. James J. Atkinson appears to have represented the interests of Margaret under an employment by defendant. At first the terms were oral and somewhat indefinite, but after-wards, on July 30, 1891, they were reduced to writing. The agreement reads as follows:

“This agreement, made and entered into between Mrs. Annie L’Etourneau, of the first part, and James J. Atkinson, of the second part, witnesseth: Said party of the second part has for some time past been engaged in securing for said party of the first part, as her attorney, her fights and interests in the estate, both real and personal, of Francis L’Etourneau, Clothilde L’Etourneau, Eleanor L’Etourneau, Timothy L’Etourneau, Sarah L’Etourneau, and Emily Hennaguennet, deceased, all formerly residents of Michigan, and all relatives by marriage of said party of the first part; said property báing all her interest in any and all property coming to her daughter from the estate of Francis L’Etourneau directly or by inheritance from his heirs, a more particular description of which is to be found in deeds to the said party of the first part from her said daughter (Margaret L’Etourneau), acknowledged in Paris, France, on June 9,1889, and September 23, 1890. • He is to continue and secure for said party of the first part all he can. out of each of said estates and property, and with all possible speed, and is to pay all counsel fees and all expenses connected therewith. In consideration of the same, the said party of the first part agrees that of said property, real or personal, so secured, the said party of the second part shall receive, as his compensation, a one-third, the balance, two-thirds, to be the property of the said party of the first part, and to be delivered to her at the close of said proceedings.”

In addition to the appearance in L’Etourneau v. Henquenet, Mr. Atkinson or his associates appeared in probate court, and attended at the time of the appointment of an administrator upon the estate of Sarah L’Etourneau. No other substantial service was rendered. The defendant, as appears recited in the agreement above set out, and as also appears by other testimony, acquired by deed the interest of Margaret. The present complainant claims under a deed from James J. Atkinson of a 5-81 part.

Before the conveyance to complainant, the defendant filed a bill of complaint against Atkinson in the circuit court for the county of Wayne, in chancery, alleging that the instrument above recited was obtained by fraud, and praying, among other things, that it be declared void. The case was heard before Judge Carpenter, and a decree entered dismissing the bill. It also appears from the opinion- of Judge Carpenter that there was no misrepresentation by Atkinson as to the nature of the service required to establish her right to the estate. This decree must be treated as conclusive of the validity of the agreement. Detroit, etc., R. Co. v. McCammon, 108 Mich. 368. The only question open on this record is whether Atkinson rendered the services entitling him to claim the interest in this estate covered by the agreement. It is earnestly insisted that the estate of Margaret vested in her by operation of law, and it was not “secured” for her or the defendant by Atkinson. We think this construction of the word “secure” too technical. The services which Atkinson had already performed were recited, and their nature cannot have been misunderstood. Such services as were necessary to the establishment of the rights of the defendant, Atkinson rendered or stood ready to render.

The complainant is entitled to the relief prayed. The decree will be reversed, and decree entered for complainant, with costs of both courts.

The other Justices concurred.


author: Hooker, J.

text:
    ALDINE MANUFACTURING CO. v. PHILLIPS.
    1. Liens — Incidents.
    A lien implies, primarily, simply a right of detention of property until the claim of the person entitled to the lien is satisfied; such person having, in the absence of statute or special agreement, no right to sell the property detained.
    2. Same — Foreclosure in Equity — Jurisdiction.
    While equity, having acquired jurisdiction for other purposes, may order sales of property for the satisfaction of liens as an incident to the general relief, it has no jurisdiction to enforce a lien, whether common law or statutory, upon a bill filed solely for that purpose.
    3. Same —Corporations—Stock and Stockholders — Pleading.
    The fact that an accounting is asked in a bill filed by a corporation to foreclose a lien upon stock under 3 How. Stat. § 416165, for a debt of the holder, is insufficient to confer such jurisdiction, where there is nothing to show that the claim is not one which a court of law can deal with as an open account.
    4. Equity Pleading — Demurrer—Amendable Defects.
    The right of complainant to correct amendable defects in his bill, upon a demurrer thereto being sustained, is dependent upon his advising the court that he desires to make such amendments.
    Appeal from Kent; Grove, J.
    Submitted June 15, 1898.
    Decided September 20, 1898.
    Bill by the Aldine Manufacturing Company against James T. Phillips to foreclose a lien upon stock. Prom a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Butterfield & Keeney, for complainant.

      More & Wilson, for defendant.
   Hooker, J.

The defendant being a stockholder in the Aldine Manufacturing Company, that company filed the bill in this cause, claiming an indebtedness due to it from the defendant, upon open account, for $1,000 and upwards, and praying an accounting, and a decree of foreclosure of its lien upon his stock in default of payment. The lien is claimed to exist by virtue of section 416155, 3 How. Stat., which provides that the corporation shall at all times have a lien upon all the stock or property of its members invested therein, for all debts due from them to such corporation. The bill was demurred to on two grounds: (1) That there was no jurisdiction in equity to enforce the lien; (2) that the remedy provided by 3 How. Stat. §§ 4161c3-4161c7, inclusive, is exclusive. The demurrer was sustained, and the bill dismissed. The complainant has appealed.

Upon the part of the defendant it is claimed, first, that equity has no jurisdiction to enforce a sale of the property to satisfy the statutory lien in a proceeding brought solely for that purpose; and, second, that, even if the court might do so when it had acquired jurisdiction for some other purpose within its jurisdiction, no such situation exists here. The theory upon which the bill seems to have been filed is that the lien of the complainant was akin to that of a mortgage or pledge of the stock, and carried with it a right to enforce payment of the debt secured by it, through foreclosure in a court of chancery, as well as by the notice and sale provided for by the statute to which allusion has been made.

This lien is not one which is created by direct agreement of the parties, such as a pledge or a mortgage, but arises by operation of law out of certain business relations, viz., that of corporation and stockholder. It is not in its nature an equitable lien, like the lien of a vendor of land sold upon contract for the purchase price. In such cases, under our practice, courts of equity have power to enforce the lien, upon bill practically for specific performance, to which the enforcement of the decree for-the purchase price, by sale of the premises, is an incident. See Fitzhugh v„ Maxwell, 34 Mich. 140, and Boehm v. Wood, Turn. & R. 332. It is, on the contrary, a legal security, closely analogous to a common-law lien, which last is said not to be enforceable in equity. Indeed, in cases of common-law liens, which always involved possession of the chattel, actual or constructive (2 Kent, Comm. 639), the creditor had no right to sell the chattel for the purpose of obtaining compensation. The lien was defined to be ‘ ‘ the right of detention, in persons who have bestowed labor upon an article, or done some act in reference to it, and who have the right of detention till reimbursed for their expenditures and labor. ” Oakes v. Moore, 24 Me. 219 (41 Am. Dec. 379). As said by Chancellor Kent: “A lien is, in many cases, like a distress at common law, and gives the party detaining the chattel the right to hold it as a pledge or security for the debt, but not to sell it. It was said by Popham, C. J., in the Hostler Case, Yel. 66, that an innkeeper might have the horse of his guest appraised and sold after he had eaten as much as he was worth. But this was a mere extrajudicial dictum, and it was contrary to the law, as it has been previously and subsequently adjudged.” 2 Kent, Comm. 642, and cases cited. See, also, 1 Jones, Liens, § 335, where the author, in discussing a carrier’s lien, says that it, “like all other common-law liens founded upon possession, gives him [ the holder ] no right to sell the property, but' only a right to retain it until his charges are paid.” Again, in section 1033 the learned author says that “ a common-law lien' * * * is merely the right of a person in possession of the property of another to detain it until certain demands * * * are satisfied.”

In Doane v. Russell, 3 Gray, 382, a wagon maker sold a wagon, pursuant to notice to the owner, for the purpose of satisfying his lien, and the court held that he had no right to do so. In Briggs v. Railroad Co., 6 Allen, 246 (83 Am. Dec. 626), a railroad company sold flour to pay their charges for its transportation, and it was held that they had “only a right to detain it until they were paid; not to sell it to obtain the remuneration to which they were entitled.” In Pothonier v. Dawson, Holt, N. P. 383, Chief Justice Gibbs said: “Undoubtedly, as a general proposition, a right of lien gives no right to sell the goods.” This was obiter, but nevertheless, from the eminence of the author, it is entitled to great weight. The doctrine was stated in Jones v. Pearle, 1 Strange, 556. Again, in Lickbarrow v. Mason, 6 East, 27, note, the rule was stated by Mr. Justice Buller as follows: “But he who has a lien only on goods has no right so to do \_i. e., sell and dispose of-them]; he can only retain them till the original price be paid.” See, also, Walter v. Smith, 5 Barn. & Ald. 439, cited in Doane v. Russell, supra, to the point that “a pledge as security for a debt * * * is a lien with a power of sale super-added.” Chief Justice Shaw also cites Cortelyou v. Lansing, 2 Caines, Cas. 200; 1 Chit. Prac. 492; Cross, Lien, 47; Woolrych, Com. & Merc. Law, 237. In Briggs v. Railroad Co., supra, Merrick, J., said: “And the rule, which is now well established, that a party having a lien only, without a power of sale superadded by special agreement, cannot lawfully sell the chattel for his reimbursement, is as applicable to carriers as it is to all others having the like claim upon property in their possession.’’ While the doctrine of these cases — i. e., that the creditor cannot sell the property — is indisputable, there was no impediment to the recovery of judgment and sale of the property, as well as any other property of the debtor, on execution. Tete v. Bank, 4 Brewst. 308; Buffalo, etc., R. Co. v. Dudley, 14 N. Y. 336.

Does it follow, that a common-law lien can be foreclosed in equity because it does not confer upon the creditor the right to sell the property? It is evident that, in cases of common-law lien for a liquidated claim, a judgment and execution are as expeditious and effective as a proceeding in equity would be likely to be, and an application of the familiar doctrine that equity will not intervene when there is an adequate remedy at law would seem proper. It is a significant fact that we are not cited to any well-settled line of authorities that supports the practice of foreclosing common-law liens in equity. At the same time, Chancellor Kent, in discussing the subject, says: “I presume that satisfaction of a lien may be enforced by a bill in chancery.” 2 Kent, Comm. 642. He supports the statement by no authorities, howbver. And in Tete v. Bank, siopra, there is a dictum that in proper cases the creditor may invoke the aid of a court of equity to work out a sale. The lien with which we have to do is not a common-law lien, but is statutory. It has the attributes of a common-law lien, however, although the manual possession of the certificates of stock is not with the complainant. Inasmuch as a transfer of the stock must be upon the books, it may be urged that the corporation has constructive possession. But it is not of much importance whether it has possession or not. Statutory liens often exist although, the creditor has not possession of the property; and we know of no authority that treats the matter of possession as depriving statutory liens of the legal attributes of common-law liens, to which they are analogous. 1 Jones, Liens, § 104, says that “a statutory lien without possession may, by force of the statute, have the same operation and efficacy that a common-law lien has with possession.” See Id. § 112; Beall v. White, 94 U. S. 382.

In the case of Southern Mich., etc., Lumber Co. v. McDonald, 57 Mich. 292, Cooley, C. J., said that “log labor liens, [which are statutory] could give no jurisdiction to a court of equity. If valid, they were legal claims.” In Thames Iron-Works Co. v. Patent Derrick Co., 1 Johns. & H. 93, 97, the jurisdiction of equity to enforce by sale a builder’s lien upon a vessel was denied; and in answer to the claim of exigency, alleged to arise from the expense of retaining the chattel, and the consequent necessity to make the security effectual by annexing to the passive lien the active right of sale, Mr. Vice Chancellor Wood said that “if, in a matter of this magnitude, the court should for the first time in 1860 establish such a new right as between persons dealing with chattels, it would injure rather than promote commercial interests.” See Canal Co. v. Gordon, 6 Wall. 561, where the Federal Supreme Court held that the’ jurisdiction to enforce a statutory lien “rests upon the statute, and can extend no further.”

In 23 Am. & Eng. Enc. Law, 697, it is said: “The lien is most frequently enforced by the refusal of the corporation to register transfers from an indebted member ; ” citing many cases. It adds that other methods of enforcement are foreclosure and sale and attachment. New authorities are cited, and these will be discussed later. 1 Cook, Stock, Stockh. & Corp. Law, § 530, cites the same. But, when we search for cases where statutory or common-law liens have been foreclosed in equity upon bills filed for the purpose, we find few, though it is probable that the States of Alabama, Kentucky, Illinois, and Maryland would sustain the practice. In Westmoreland v. Foster, 60 Ala. 448, a bill was filed against a tenant to enforce a lien for rent, against cotton in the hands of a vendee of the tenant. It was there held that a statutory lien, which is an incident of some contract made, is enforceable by the common processes of the law. This case proceeded upon the theory of a trust. Tutwiler v. Land Co., 89 Ala. 391, was a case where the stockholder filed a bill to enjoin a sale of his stock on account of a failure to pay calls, and to .have the affairs of the corporation settled, and an account stated. A demurrer was sustained, and the complainant appealed. The case was affirmed, and the court seems to have held that the lien on the stock could have been foreclosed in chancery, citing the Westmoreland Case as authority. This case was followed by Crass v. Railroad Co., 96 Ala. 447. A bill was filed to enforce a common carrier’s lien, and to require the defendants to interplead as to the ownership of the property which was in the carrier’s possession. The court said that it had no doubt that a court of chancery had jurisdiction to enforce the lien, again citing the Westmoreland Case and the authority quoted from Kent. It is fair to say that, while each of these cases alleges some other ground of jurisdiction than the mere foreclosure of a lien, the latter case indicates that a bill filed for foreclosure only would be sustained.

In Kenton Ins. Co. v. Bowman, 84 Ky. 430, a suit was brought to foreclose a mortgage on the property of the wife of Shinkle to the complainant. Shinkle held stock in the complainant company, and by an amended petition the complainant claimed a lien on that stock to secure this mortgage debt, or any part which should remain unsatisfied by the foreclosure of the mortgage. A decree of foreclosure was granted. In Brent v. Bank, 10 Pet. 596, executors of a deceased stockholder filed a bill to compel a transfer of stock for the benefit of the United States, it having been assigned by the testator as security for a debt due to the government. Counsel stipulated that, in case it was found that the bank had a lien upon the stock, the court might decree that the stock should be sold to satisfy it, which it did. In Bank of Kentucky v. Bonnie, (Ky.) 48 S. W. 407, an action was brought to. enforce a lien upon 'collaterals held in pledge by a bank, and also to enforce a statutory lien upon the stock of the debtor. It does not appear that the right to decree sale was questioned. In National Bank v. Tumbler Co., 172 Pa. St. 614, a bill was filed to compel a transfer of stock to a pledgee. The Tumbler Company filed a cross-bill to enforce its lien, which- was sustained, and the stock was sold to satisfy it. In the case of Farmers’ Bank of Maryland, 2 Bland, Ch. 394, an administrator filed a bill to compel the bank to apply stock dividends upon indebtedness due the bank from the intestate, and to sell the stock and apply the proceeds, and that only the deficiency after such application of dividends and sale of stock should be admitted as a claim against the estate.

It will be seen from the foregoing that, in nearly all of these cases, jurisdiction might have been sustained upon other grounds than that of foreclosure, and that the court might therefore, in order to do justice between the parties, have allowed a sale of the stock. Such was the case in Kenton Ins. Co. v. Bowman, 84 Ky. 430. The later case of German Nat. Banker. Trust Co., (Ky.) 40 S. W. 458, was a simple foreclosure bill, and sustains the practice on thea uthority of Kenton Ins. Co. v. Botuman. We have already seen that a similar course of decision is found in Alabama, the doctrine being based upon cases which were distinguishable. In Maryland the earlier case was not a foreclosure bill, but was a bill filed against the bank to compel an accounting and transfer of stock, on which the bank claimed a lien. In the opinion the lien was treated as a mortgage, and it is intimated that it might be foreclosed. Ultimately, the stock was sold. The subsequent case of Reese v. Bank of Commerce, 14 Md. 271, permitted a foreclosure of a lien on stock. In Brent v. Bank, 10 Pet. 596, the decree may be ascribed to stipulation, notwithstanding the fact that the bill was filed to compel a transfer. In Bank of Kentucky v. Bonnie the bill was filed to foreclose a statutory lien in conjunction with a mortgage on other property. In National Bank v. Tumbler Co., a bill was filed to compel a transfer; while in Be Morrison, 10 N. B. R. 105, the sale was under bankruptcy jurisdiction. In the case of Cairo, etc., R. Co. v. Fackney, 78 Ill. 116, in an action of assumpsit, broad language was used as to the jurisdiction of equity in.the enforcement of statutory liens, but it must be remembered that the lien involved there was a lien against a railroad.

We have yet to notice our own case of Citizens’ State Bank of Monroeville v. Kalamazoo County Bank, 111 Mich. 313, where stock was sold and proceeds applied upon a lien. This question was not discussed, and the decree was made upon a cross-bill, where the original bill was filed to compel a transfer of stock. The court had jurisdiction for another purpose, and, having jurisdiction for one purpose, was justified in doing complete justice between the parties.

It is manifest that there is confusion, in the law upon this subject. If it is true that equity has jurisdiction to enforce payment by foreclosure in all cases of statutory liens, it must be because of a difference between them and common-law liens, which we have not been able to discover,. or because of the force to be accorded to authorities comparatively modern, few of which are cases of foreclosure merely. If that is the rule, it will be hard to distinguish the present case from any other lien for labor, carriage, or storage. The log lien, which has been discussed, would be no exception; for, if chancery has ageneral jurisdiction to enforce liens, it is not lost by the addition of a statutory method of relief. Authorities are numerous in support of this proposition. So that, to our mind, the authorities, if there are such, that hold the statutory remedies are exclusive, recognize the want of jurisdiction in equity. We are of the opinion that resort to equity is neither necessary nor permissible in the majority of lien cases, and that the courts of law can deal with them cheaply and expeditiously. On the other hand, we have no doubt that equity, having jurisdiction for other purposes, may order sales of property for the satisfaction of liens, as was done in our own case already cited.

It is contended that such jurisdiction is shown by the bill in this case, but we think not. ‘It seems to be a foreclosure bill simply. It is urged that an accounting is necessary; but we think the bill does not show that complainant’s claim is not one that a court of law can deal with as well as any other case of open account. We see no opportunity for a multiplicity of suits, and the bill does not show that for any reason the remedy by judgment and execution is not adequate.

Counsel urge that they should have been given an- opportunity to amend, and the bill should not have been dismissed peremptorily. Under the case of Lamb v. Jeffrey, 41 Mich. 719, the complainant should have been given an , opportunity to amend its bill, if it desired it. We cannot assume that it did, and the record does not show ■ that it asked it, so far as we are advised.

We must affirm the decree, with costs.

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


author: Grant, C. J.

text:
    TEMPLE v. GOLDSMITH.
    1. Statute of Frauds — Original Promise — Question for Jury.
    Plaintiff furnished lumber for an improvement made by F. to defendant’s house. Plaintiff testified that he said to defendant, “If I furnish the lumber for you, I am not going to charge it up to F., I will charge it to you; ” that such was the understanding; that defendant said he wanted F. to furnish the lumber himself, so he could get his pay out of F., who owed him; that plaintiff said, “I cannot furnish the lumber for F. to pay his old bills;” and that defendant replied, “I think there will be enough in the job to pay me, and you for your lumber too.” Another witness gave testimony from which it could be inferred that the credit was given to defendant, and was so understood by him. Held, sufficient to justify the submission to the jury of the question o'f an original promise by defendant.
    2. Same — Evidence—Books of Account — Harmless Error.
    Error, if any, in permitting plaintiff in such case to introduce in evidence his books of account, showing that the lumber was charged to defendant, was cured by an instruction that the fact that the charge was made to defendant was important only in case the jury should find that it was so charged by the authority or with the assent of defendant.
    Error to Wayne; Grove, J., presiding.
    Submitted June 10, 1898.
    Decided September 20, 1898.

      Assumpsit by Albert E. Temple against Earl Goldsmith for goods sold and delivered; From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Cutcheon, Stellwagen & Fleming, for appellee.
   Grant, C. J.

This is a suit for $31, brought to recover for a bill of lumber alleged to have been sold by plaintiff to defendant. Defendant, desiring an improvement upon his house, solicited one Fisher, a carpenter, to bid. Fisher obtained the plaintiff’s assistance in estimating the cost, and $55 was the sum fixed as a safe bid. Defendant afterwards saw plaintiff, and asked him' if Fisher had been there to get lumber. After detailing the conversation with Fisher, plaintiff testified: “I said [to defendant] : ‘ Earl, if I furnish the lumber for you, I am not going to charge it up to Fisher; I will charge it to you.’ That was the understanding.” Defendant said he “wanted Fisher to furnish the lumber himself, so he could get his pay out of Fisher; that he owed him; and I said, ‘ I cannot furnish the lumber for Fisher to pay his old bills;’ and he said, £I think there will be enough in the job to pay me, and you for your lumber too.’” One other witness gave testimony from which it may be inferred that the credit was given by plaintiff to defendant, and that defendant so understood it.

1. It is urged that there was no evidence of an agreement or original promise on the part of defendant. We think that the evidence was sufficient to justify the submission of the question to the jury. It was debatable whether plaintiff trusted Fisher or defendant, and whether it was agreed that the credit should be given to defendant. The question was not so clear as to justify the court in disposing of the question.

2. Plaintiff was permitted to introduce in evidence his book of accounts, which he himself kept, showing the amount of lumber, and_that it was charged to defendant. This is alleged as error, under Hodges v. Power Co., 109 Mich. 54.7. If this was error, it was cured by the instruction of the court that the fact that the charge was made to the defendant was only important in case they should find it was so charged by the authority or with the assent of the defendant. Taking this in connection with the instruction that the sole question in the case was whether the agreement was “that the lumber should be charged to defendant, and that the defendant obligated himself to pay for it,” we think there was no error.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    LONG v. LANDMAN.
    1. Estates of Decedents — Mortgage by Executor — Probate Courts — Jurisdiction—Collateral Attack.
    The necessity for an executor’s giving a mortgage upon decedent’s property to pay a debt against the estate is not open to inquiry upon a bill to foreclose the mortgage, where the execution of the same was authorized by the probate court upon a petition containing allegations sufficient to confer jurisdiction upon it.
    3. Same — Debt Accruing After Decedent’s Death.
    Under 3 How. Stat. § 6105, providing that the probate court may authorize the giving of a mortgage for the “purpose of paying the debts against the estate of any deceased person,” such court may authorize a mortgage for the payment of debts and charges accruing after decedent’s death.
    3. Same — Taxes—Duty of Executor.
    It is the duty of an executor to pay the taxes upon real estate of the decedent in his possession pending the settlement of the estate; and, where the available funds of the estate are insufficient for the purpose, he may obtain from the probate court the authority to raise the amount by mortgage upon the land.
    4. Same — Foreclosure of Mortgage — Objections.
    An objection that the amount for which a mortgage was given by an executor, under authority of the probate court, for-the payment of debts against the estate, includes improper items, does not go to the validity of the mortgage, and hence will not be considered on foreclosure, but will be left for adjustment in the probate court upon the executor’s accounting for the moneys received on the mortgage.
    Appeal from Kent; Adsit, J.
    Submitted June 7, 1898.
    Decided September 20, 1898.
    Bill by Kate E. Long against William J. Landman, administrator with the will annexed of the estate of Mary C. Hurlbut, deceased, George H. Long, executor of the last will and testament of Arthur B. Long, deceased, and others, to foreclose two real-estate mortgages. From a decree for complainant, defendants, except George H. Long, appeal.
    Affirmed.

      Crane, Norris & Stevens, for complainant.

      Butterfield & Keeney, for appellants.
   Moore, J.

This is a proceeding to foreclose two mortgages. A decree was rendered in the court below in favor of complainant, from which decree some of the defendants appeal.

Prior to 1878, Arthur B. Long, of the State of Pennsylvania, and his son, George H. Long, had been engaged in the business of lumbering. In April, 1878, a partnership agreement was made, which, omitting the formal part, reads as follows:

“As this agreement has reference now to the late firm of A. B. Long & Son, who has formerly been doing business as the firm of A. B. Long & Son, and is now carrying on and doing business of lumbering in the name of A. B. Long & Son at this date, and for some time has been doing and carrying on the business in this name, and «hat all lands and lumber, logs and other property, have been made to George H. Long and A. B. Long, for which property in logs, lands, and lumber, and sundry personal property has been made, by deed and otherwise, unto the late firm of A. B. Long & Son, A. B. Long and George H. Long, who in their own right and by deed own the property so sold and deeds held for the same as follows: That A. B. Long owns in said property and lands the undivided two-thirds of all lands and other property now held and owned by the firm of A. B. Long & Son, and that George H. Long now holds and owns the undivided one-third interest in all the above lands and other property; and now, for the purpose of continuing and carrying on the business of lumbering, we this day agree to continue the business in all its various branches and places as they shall from time to time think most proper and best for them to do, and the length of time shall be determined by the parties themselves, and to their best interest; and it is further agreed by and between the parties that A. B. Long shall not draw or take from the firm more than $500 monthly, and that George H. Long shall not draw or take from the firm more than $250 monthly, and that A. B. Long is to have two-thirds interest and profits made by carrying on the said lumbering business, and bear the two-thirds losses, and George H. Long to have the one-third interest and profits made by carrying on the lumbering business, and bear the one-third losses.”

Arthur B. Long died in 1884, leaving a will, which was duly probated in Pennsylvania,' and afterwards in this State. The property was given by 'the will, one-fifth of it to each of four children, and one-fifth to one child and his children, after providing the sum of $3,000 annually to his wife. The sum of $10,000 was to be held by George H. Long as trustee, and the income from it was to be paid annually to William J. Long as long as he lived. By a codicil, George H. Long and David W. Woods were made executors. The will contained these provisions:

“All of my estate, both real and personal, that is being and lying in the county of Clearfield and State of Pennsylvania, and now leased unto Robert Hasse Powell, the same bearing date the 11th day of June, 1872, and June the third, 1871, and that my executors or .their executors or administrators shall continue the said lease with the said Robert Hasse Powell for the full term of ten (10) years after my decease, and the royalties that accrue from said coal or lease shall by my executors be paid to the above legatees, as prescribed in section second, at the end of each year after my decease.
“ The lease made on the ninth day of July, 1881, by and between George H. Long and A. B. Long, for certain pine timber being and lying in Mecosta county and State of Michigan, and that my executors or their executors or administrators, and with the sawmill at Grand Rapids, with the adjoining lands to said mill for sidings and ground for sticking and drying lumber, shall continue and remain as they now are, for such use and purpose, until all the pine timber on the above-named lands shall be manufactured at said mill, and sold, and the moneys thereof made shall from such lumber shall by my executors or their executors or administrators shall at the end of each year divide among the above legatees, as specified in the above in section second, after my decease. Any other lands being or lying in the State of Michigan, not mentioned above, shall be sold by my executors as soon as convenient after my decease.
“I do by these presents give unto my executors, or a majority of them, or their executors or administrators, or a majority of them, full power and authority to grant, alien, bargain, sell, and convey by deed, and assign, all the said lands mentioned in this my last will, and any other lands or personal property I may have at the time of my decease, unto person or persons and theirs forever, in fee simple, by all and every such lawful ways and means in the law as to my said executors or their executors or administrators, or a majority of them, his or their counsel learned in the law, shall seem fit or necessary to be done.”

Mr. Woods and Mr. Long qualified as executors; Mr. Woods having charge of affairs in Pennsylvania, and Mr. Long in this State. The business of lumbering was continued after the death of A. B. Long as it had been before, and the proceeds of the Michigan business were taken to Pennsylvania by Mr. Long, annually reported to the probate court, and distributed; the amount so taken by Mr. Long, and distributed, amounting to upwards of $500,000. Mr. Long also filed annual accounts in the Kent county probate court. The coal lands in Pennsylvania ceased to be productive in 1892 or thereabouts. The lumber was all manufactured in 1891 or 1892, and the mill in Grand Rapids was soon after that dismantled.

It is the claim of the executor that he had distributed the funds which came into his hands, amounting to upwards of a half a million of dollars, so that January 1,1892, he had in his hands as executor but $134. In February of that year, he received upon a judgment a little over $600, which, he says, he had agreed to forward to the Pennsylvania executor, to help him pay the taxes on the coal lands. It is his claim that in October he was notified of an assessment against the Grand Rapids property of $2,400 for street improvements, and that there would be other taxes due, and that he had no money as executor with which to pay them. In January, 1895, he petitioned the probate court for leave to mortgage the real estate, to enable him to pay the debts against the estate. The petition contained, among other things, the following statements :

“That the amount of personal estate of the said Arthur B. Long that has come into, the hands of your petitioner is the sum of $386,385, of which only one or two hundred dollars remains undisposed, of; that the debts outstanding against the estate of the deceased, as far as can be ascertained, amount to the sum of $2,000 or thereabouts; that the charges of administering the estate of the deceased, including future probable charges, amount to the sum of $800; that the expense of administration of the estate of the deceased will amount to the sum of $800.
“That the following is a description of all the real estate of which the testator died seised in the county of Kent, in the State of Michigan, namely: [ Then follows a description of the lands and of their values.] That there is not sufficient personal estate in the hands of the executor, your petitioner, to pay the debts outstanding against the estate of the deceased, and the expense of administration; that it is necessary to borrow money by way of mortgage on the whole of the real estate of said testator above described, for the purpose of paying the debts against the estate of the deceased and the expense of administration ; that the names and residences of all persons interested in said estate are as follows: * * * that it will be necessary, for the purpose of paying the aforesaid debts, expenses, and charges, to borrow the sum of $3,600 by way of mortgage upon such real estate.
“Your petitioner therefore prays that he may be authorized, empowered, and licensed to borrow said sum of money by way of mortgage upon such real estate, or some part thereof, as the court shall deem best, for the purpose of paying such debts, charges, and expenses, according to the provisions of the statute in such case made and provided.”

Due notice was given of the hearing, and the court made an order authorizing the executor to borrow $2,666.66 for one year, at 6 per cent., and to give a mortgage upon the undivided two-thirds interest of the testator in the lands described in the petition. The executor gave, upon the requirement of the court, a bond in the sum of $4,000, and took the oath required by statute. He arranged with the complainant, who is his wife, to borrow the money of her. He reported fully the arrangement to the probate court, and his action was approved and confirmed. No appeal was taken from any of these orders. On the same day the $2,660.66 mortgage was given, Mr. Long, as an individual, and as surviving partner of A. B. Long & Son, and as executor, and his wife, Kate E. Long, gave a mortgage on the undivided one-third interest which George H. Long owned in the same property, for $1,333.34, to Mr. Sheller, who is the brother of Mrs. Long; and the same day that mortgage was assigned to Mrs. Long, who-paid over to Mr. George H. Long the sum of $4,000. It is to foreclose these mortgages that this suit is brought.

It is the claim of defendants there was no need of giving these mortgages, and that in the giving of them it was the purpose of the executor to acquire title to the property for much less than it is worth, and to deprive the other heirs of their interest in it. The defendants seek to attack in this proceeding the validity of the order made by the judge of probate, and have introduced the proceedings in the probate court, including the annual accounts which were filed prior to the making of the order. They also urge that Mrs. Long is not a good-faith holder of the mortgage. It is the contention of the complainant that she advanced the money upon the mortgages in the utmost good faith. She urges that the petition conferred upon the probate court jurisdiction authorizing the making of the mortgage, and its validity cannot be attacked in this proceeding.

The petition in this case complies with the provisions of the statute quite as fully as did the petition in the case of Griffin v. Johnson, 37 Mich. 87, in which case Justice Campbell used this language:

“The allegations in this petition set up a sufficient state of facts, if true, to authorize the granting of a license. This being so, the truth or falsity of those allegations cannot be inquired into collaterally. The court having jurisdiction, parties claiming under a mortgage made in pursuance óf a license are not required to investigate the truth of those facts, but have a right to assume the court acted correctly. This doctrine has been settled by a long series of decisions of this court,” — citing many cases.

This doctrine has since then been followed in a large number of cases. Norman v. Olney, 64 Mich. 553; Egan v. Grece, 79 Mich. 629; Pfirrman v. Wattles, 86 Mich. 254.

It is said, notwithstanding the general rule that an order of this kind by the probate judge cannot be attacked collaterally, this order can be, for the reason it was made without the court having any jurisdiction to make it. It is the claim of counsel that the probate court was without authority to make the order, for the reason that the debt accrued after the death of Mr. Arthur B. Long, and such an order could not be made for a debt arising after his death;“citing a number of cases, but relying especially upon the case of Farrar v. Dean, 24 Mo. 16. The Missouri statute differs from ours. It reads: “Where there are not sufficient personal estate and effects charged with the payment of the debts of any testator or intestate, it shall be the duty of the executor or administrator to apply,” etc., and provides an order may be made for a sale of so much real estate as shall be necessary for the payment of the debts of the deceased. 1 Rev. Laws 1825, p. 106, § 40. Our statute provides the probate court may authorize the giving of a mortgage for the “purpose of paying the debts against the estate of any deceased person.” 3 How. Stat. § 6105. This statute was construed in Be Lambie’s Estate, 94 Mich. 489, where it was held a mortgage' against land owned by the deceased, but not made by him, was such a debt as authorized the order, the court saying:

“There is no question here but that this estate, consisting only of this one parcel of land which has been pledged to pay this specific sum, is legally liable to pay this charge upon it; and it can make no difference that deceased was not personally liable, but took this property subject to the pledge. * * * In the present case the language of the ■statute is ‘debts against the estate.’ Is not this mortgage debt one against the estate, — against the property of the estate? Is not the estate — the property of the estate-charged with its payment ? Is it not legally liable for its payment? The word ‘debts,’ in the statute, should be given its ordinary signification, rather than a technical construction, which would be contrary to the practical construction which has been given it up to the present time.”

A large proportion of the amount authorized to be raised was for assessments and taxes against the lands of the testator. Is not the estate — the property of the estate— chargeable with the payment of these taxes? And, if they were not paid, would not the land be sold ? It was the duty of somebody to pay the tax. But it is said so much time has elapsed since the death of Mr. Long that this real estate ought not to have been under the control of the executor, but should have been partitioned. It is sufficient to say the statute gives the executor possession of the real estate until the estate is settled, or until delivered over by the order of the probate court to the heirs. & How. Stat. § 5875. The estate had not been closed; the executor had not filed his final account; none of the heirs had asked for partition; and, until some of these things were done, it was not only proper, but it was the duty of the executor, to pay the taxes, and prevent the property from being sold for taxes.

It is claimed there are included, in the amount for which the mortgage was given, items.for needless and unauthorized litigation. The executor gave a bond at the time the mortgage was given. He will have to give an account to the probate court of his expenditure of the money received on account of the mortgage. We have already seen that debts were in existence, giving the court jurisdiction to act. The probate court, rather than here, is the proper forum to decide in the first instance whether the money has been properly expended.

It is urged the executor had upwards of $30,000 in his hands that he had improperly retained in the way of compensation, and that this order ought not to have been made. We have already said that the petition was sufficient to confer jurisdiction upon the court, and that his order cannot be attacked in this collateral proceeding. The executor has not filed his final account. If he has received moneys for which he has not properly accounted, the probate court or the court in chancery is entirely competent to deal with that question in a proceeding in which it is directly involved.

There are other questions raised by counsel, but, in view of the effect of the order made by the probate judge, we do not think they can be raised in this proceeding, and it will not be profitable to discuss them further.

It is urged in defendants’ brief that the decree authorizes the sale of the entire property, instead of authorizing the sale of a two-thirds interest therein on one mortgage, and a one-third interest therein on the other. The language of the decree is somewhat ambiguous, and it may be modified in that respect so that there can be no question about its meaning. When so modified, it will be affirmed, with costs to appellees.

The other Justices concurred.


text:
    WALKER v. SYMS.
    1. Building Contracts — Brigs: Measurements — General Custom.
    Where a building contract provides that brick furnished and laid shall be paid for at a stated amount per thousand, “measured in the wall,” and is silent as to the method of measurement, a general custom of making such measurements without deductions for openings for doors and windows will prevail.
    2. Same — Construction—Arohiteot as Arbitrator.
    A provision in a building contract, that any question that may| arise between the parties “ as to the true intent and meaning of the plans and specifications” shall be referred to the architect for final determination, confers upon the architect no au thority to decide as to the method of measurement of used in the walls.
    3. Same — Action on Contract — Mechanic's Lien Law.
    The failure of a building contractor to furnish to the owner a sworn statement as to the amounts due to subcontractors, laborers, and material men, as required by the lien law (Act No. 179, Pub. Acts 1891, § 4), will not prevent his recovery on the contract, where it appears conclusively that none of such persons are in a condition to assert a lien, or to subject the owner to litigation. So held, where suit was commenced more than two years after the work had been accepted by the owner.

    Error to Berrien; Coolidge, J.
    Submitted June 17, 1898.
    Decided September 20, 1898.

      Assumpsit by Thomas A. Walker against William E. Syms and George E. Dudley to recover a balance due upon a building contract. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      A. Plummer and Edward Bacon, for appellants.

      L. G. Eyfe and M. L. Howell, for appellee.

       See Martin v. Warren, 109 Mich. 584, where it was held that the mere lapse of the 60 days limited for the filing of liens by subcontractors, laborers, and material men did not relieve the contractor from the necessity of furnishing the statement as a condition precedent to his right to maintain a bill to enforce his lien.

   Moore, J.

This case comes here upon special findings of the court. The bill of exceptions does not purport to contain all the testimony taken upon the trial. The plaintiff is a builder and contractor. In August, 1893, he entered into a written contract with defendants, to erect for them a large factory building. Soon thereafter he entered upon its construction. It was completed, and the defendants took possession of it, in November, 1893, and were in possession when this suit was tried. A controversy arose as to how much was due from defendants to plaintiff. They were unable to agree upon the amount. Plaintiff sued defendants, and recovered a judgment against them, from which judgment defendants appeal.

Those portions of the contract important in this discussion read as follows:

“The said party of the first part further agrees that all work performed under this contract shall be done in strict accordance with the plans and accompanying specifications prepared for the erection of the said buildings by E. A. Ellsworth, architect; and any questions that may arise between the said parties to this contract as to the true intent and meaning of the said plans and specifications shall be referred to the architect (or, in his absence, to Louis R. Lavalle, representing the said architect as superintendent of construction), whose decision shall be final and binding upon both parties to this agreement. The entire work, when finished and completed, shall be subject to the final examination of the said architect, and all shall be made to meet his acceptance truly to the requirements of the specifications before this contract will be acknowledged and accepted as complete by the said parties of the second part. * * * And it is further agreed by the said party of the first part that all work shall be finished and delivered up to the said parties of the second part free from all mechanics’ liens or other claims upon the same. And the said parties of the second part, in consideration of the complete fulfillment of all the conditions hereinbefore set forth, covenant and agree, for themselves, their heirs, executors, or administrators, with the said party of the first part, to well and truly pay to the said party of the first part a sum of money equal to eight and twenty-five one-hundredths ($8.25) dollars, lawful money of the United States of America, for each and every thousand of brick, and part thereof in like proportion, measured in the walls, at the rate of twenty-two and one-half (22-|-) brick per cubic foot of-wall; the said price being based on the cost of said brick, delivered on the site of the said proposed buildings, at the rate of five and fifty-five one hundredths ($5.55) dollars per thousand (actual count).”

The first dispute between the parties grows out of the measurement of the work. It is the claim of the plaintiff that the measurements should be controlled by the custom in Michigan, which he claims is to measure the outside of the wall, not deducting anything for the openings made by doors and windows; he contending the custom is a reasonable one, as the construction of the wall without openings takes less time and costs less than one with many windows and doors. It is the claim of defendants that they were ignorant of any such custom, and that the space occasioned by the doors and windows should be deducted from the measurements. The circuit judge found that the contract did not provide for any particular method of measurement, and did not leave the method of measurement to the architect or superintendent, and that the language of the contract was ambiguous as to the method of measurement. He also found that, at the time when the contract was made, there was existing in this State, and many of the other States, a custom, which was uniform, general, of long standing, and reasonable, in measuring brick walls, of counting the openings as part of the solid wall, and that plaintiff, in making his contract, relied upon this custom. In the disposition of the case by the circuit judge, he treated the openings as part of the wall. Was he justified in doing so? An inspection of the contract shows no method was pointed out of making the measurements. It also fails to show, in case of a disagreement between the parties as to the method, that the architect or superintendent shall determine. The matters so referred to them are “any questions that may arise between the said parties to this contract as to the true intent and meaning of the said plans and specifications.” This language is not broad enough to convey the authority to decide the disputed question of method of measurement. The contract, then, not providing for the method of measurement, how shall it be decided, except by the custom of the place where the contract is made and performed ?

In Lowe v. Lehman, 15 Ohio St. 179, there was a written contract for the construction of a brick wall, where payments were to be made for the brick furnished and laid in the wall, at $6.25 a thousand. The contract was silent as to the method of measurement. Parol proof was given as to the custom which controlled such measurements. This was said to be error, first, because it contradicted a written instrument by parol, and, second, because the custom was unreasonable. In affirming the judgment of the court below, this language is used:

“We are unable to see anything unreasonable in the custom. The workman was to furnish the brick and materials, and lay them up, by the thousand. The contract contains no specification of the dimensions, shape, angles, openings, or arches of the wall, or of the size of the brick. It does not require a mason to know that the value of the work and materials depends much upon these and such like conditions, if they are to be paid for by the numerical thousand. Again, the brick are to be ‘furnished ’ as well as to be laid up. Where and how will you count them numerically? Will you count them at the kiln, on the ground, or in the wall ? And who will lose the breakage in transportation and in handling, and the waste of filling them into the wall? Some fair measurement of the wall would seem to be a more reasonable method. And we cannot say that this method was not a fair one. It slightly increased the estimated number of bricks in the wall, it is true, by making small additions for extra work, and extra waste of brick, at the angles and openings; and the rule of measurement adopted fixes upon an arbitrary and uniform dimension for the average size of the brick, which may vary slightly, but cannot vary much, from their true average size. All this seems to us reasonable.
: “Neither do we think that proof of this custom is objectionable on the ground that it contradicts the contract. Authorities to support this view are numerous and almost uniform, and the rule is of every-day application. It is applied to shingles, to printers’ ems, to lumber, etc. It is applied to measures and weights of numerous commodities. A ton of one article often contains over, and sometimes under, 2,000 pounds, and not unfrequently more pounds in one place than in another. In 2 Pars. Cont. the author says that custom ‘ may give to words of number an entirely different sense from that which they usually bear.’ He cites numerous cases to that effect. Among them are Smith v. Wilson, 3 Barn. & Adol. 728, where ‘1,000 rabbits’ was held to mean 1,200 rabbits, by the custom; and Hinton v. Locke, 5 Hill, 437, where ‘12 shillings per day ’ was made to mean 12 shillings per 10 hours, or 1£ days for every day on which 12-)- hours’ work was 'done. But it is useless to multiply authorities. The reason and necessity of the rule lies at the foundation of all language. It is as true now as it was in the time of Horace that custom is at once the arbiter and standard of language, — -‘ Hsus, quern pene et jus et norma loquendi.’ It belongs to the imperfection of language that while much the larger part of its words become, by usage, fixed and universal in their meaning, yet some of them must always be left subject to the changes and variations necessarily occasioned by local usages and the customs of trades.
“We are of opinion, therefore, that proof of this custom was properly admitted by the court. We hold that it was not necessary to set it out in the petition; that it was a reasonable custom; and that it does not contradict or vary the written contract in any objectionable sense.”

In Patterson v. Crowther, 70 Md. 124, the same doctrine is held. See, also, Walls v. Bailey, 49 N. Y. 464 (10 Am. Rep. 407); Breen v. Moran, 51 Minn. 525; Miller v. Botto, 79 Ill. 535. The following cases, though not directly in point, bear upon the question: Merick v. McNally, 26 Mich. 374; McDonnell v. Ford, 87 Mich. 198.

Before bringing this suit, plaintiff had not made out and given to the owners a statement under oath of the number and names of the subcontractors, laborers, and material men. It is claimed that, under the provisions of section 4 of Act No. 179, Pub. Acts 1891, this action cannot be maintained because said statement was not furnished. The trial judge found that no statement of this kind was ever requested, and that, when this suit was commenced, all laborers and contractors had been paid in full, and that all the labor done and materials furnished had been paid for; and it did not appear that any laborer or material man had ever served any notice of any claim under the mechanic’s lien law. He further found the work done by plaintiff was completed and accepted by the defendants, and was free from all mechanics’ liens or other claims at such time. This suit was not commenced until more than two years after the building was accepted by defendants. The time in which any person could assert a lien as subcontractor, laborer, or material man had long elapsed. Section 22 of the act provides:

‘' Except as herein otherwise expressly provided, nothing in this act contained shall be construed to prevent any creditor in any such contract from maintaining an action thereon at common law in like manner as if he had no lien for the security of his debt.”

The plaintiff in this case is not attempting to assert a lien under the mechanic’s lien law. It appears conclusively the situation is such that none of the laborers, subcontractors, or material men are in a condition to assert a lien, or to subject defendants to litigation on that account. In the case of Barnard v. McLeod, 114 Mich. 73, Justice Hookee used this language:

“We do not intend to be understood as saying that the service of such sworn statement is necessarily jurisdictional, and that neglect to serve is fatal in all cases, or that it cannot be waived. Possibly it should not be allowed to stand in the way of recovery where the absence of other liens and the opportunity to effect them are conceded or obvious. This provision is a shield, and, while it should be given full effect for that purpose, its mission may be held to end with the possibility of such use, should such case arise.”

The case suggested by Justice Hooker is now here. The use here made of the provision of the statute is not that of a shield on the part of the owner against possible hens, but it is an attempt to use the statute to prevent the rendition of a judgment which, according to the findings of the court, ought to be rendered.

Other questions are raised and discussed by counsel, but the finding of facts conclusively disposes of them, and their discussion would be unprofitable.

Judgment is affirmed.

The other Justices concurred.


text:
    DODGE v. VAN BUREN CIRCUIT JUDGE.
    1. Taxation — Railroad-Aid Bonds — Constitutional Lawj
    The legislature cannot confer upon a township the right to issue bonds in aid of railroad companies. People v. Township Board of Salem, 20 Mich. 452, followed.
    2. Same — Equity Jurisdiotion — Injunotion.
    Injunction will lie to restrain a township from negotiating railroad-aid bonds, on behalf of any taxpayer of the township whose interest is sufficient to permit him to invoke the aid of equity. Gurtenius v. Railroad Go., 37 Mich. 583, followed.
    3. Same — Interest oe Petitioner.
    In such case the petitioner’s interest is to be determined with reference, not to the amount of the tax for which he would be made liable because of the bonds, but to the value of his property subject to such taxation. Fuller v. City of Grand Rapids, 40 Mich. 395, followed.
    4. Mandamus to Cirouit Court — Injunction—Stare Decisis. Mandamus will lie to compel a circuit judge to grant an in junetion, where it is apparent from his return that his refusal of the writ was based solely upon his opinion that previous decisions of the Supreme Court, which, if followed, would make it clearly his duty to issue the writ, were erroneously decided.

      Mandamus by Thomas F. Dodge to compel George M. Buck, circuit judge of Van Burén county, to grant an injunction restraining the negotiation of certain township bonds.
    Submitted June 28, 1898.
    Writ granted September 20, 1898.

      Howard, Boos & Howard, for relator.

      8am H. Kelley and Thomas J. Cavanaugh, for respondent.
   Moore, J.

This is an application for a writ of mandamus to compel the circuit judge to issue a preliminary injunction. The petition shows that in April, 1898, the relator, as complainant, filed a bill in chancery against the township board of the township of Paw Paw and the South Haven & Eastern Railroad Company, in which bill it was stated that complainant was the owner of property in said township, of the value of $2,000, which was liable to the assessment of taxes; that the electors of said township had illegally voted and executed $10,000 in the bonds of said township, which had been placed in the hands of persons unknown to complainant, in trust or escrow for the defendant railroad company, to be delivered to it when it had made certain changes and improvements to its railroad property, by making it a standard-gauge road from the village of Lawton, through Paw Paw, to the village of Hartford,-and erecting a freight station at or near Lake Cora, and making other improvements; that the money to liquidate said bonds must be raised by taxation ; that said bonds are illegal, and will be negotiated unless an injunction is issued,— and prayed for an injunction. A temporary restraining order was issued. A time was set for a hearing of the application for an injunction. The defendants severally answered. Their answers are not frank, clear, and definite, but it is claimed in them that the bonds were legally issued, under the provisions of Act No. 438, Local Acts 1895. It is also claimed that the bonds have already been negotiated, but the language used is very peculiar, and there is no statement when and to whom they were negotiated. A hearing was held, at which the court evidently was not impressed with the statement that the bonds had been negotiated, or had been issued for other purpose than to aid in making improvements to the railroad property. This is indicated by the language of the court in the disposition of the motion:

“The court is strongly of the opinion that, if the bonds which are the subject of this controversy are invalid, then the complainant is entitled to the temporary injunction asked for in this motion. This view renders it necessary to examine the question of the validity of the bonds, upon the assumption that they were issued as a bonus to the South Haven & Eastern Railroad Company, in consideration of the making of certain changes and improvements in the road and railroad property of the company. * * * There can be no question but that, according to the decisions of the Supreme Court of Michigan in the cases of People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400), and People v. State Treasurer, 23 Mich. 499, a municipal corporation of this State has no authority to issue its bonds in aid of a private corporation building, or proposing to build, a railroad to be owned and controlled by the corporators, and that the legislature cannot, under the Constitution, authorize the issue of such bonds, either with or without a vote of the electors of the municipal corporation issuing them.”

The judge then reviews the cases, and claims the views of this court as expressed in its opinions are not in harmony with the decisions of many of the State courts, or with the courts of the United States, and then proceeds:

“The decision in the case of People v. Township Board of Salem rests on the assumption that ‘ a corporation created for the purpose of constructing a railway to be owned and operated by the corporators is a private corporation, and that the road when constructed will not be a public highway, except in a very qualified sense, as it accommodates the travel and traffic of the public, and is therefore no more a public object than any other private enterprise which also supplies a public want or furnishes to the public a convenience.’ To this proposition my reason refuses assent.”

The judge then argues that railroads are not private corporations, and proceeds:

“It might be suggested in behalf of the complainant that, inasmuch as the decisions of the Supreme Court of Michigan have been to the effect that municipal corporations in this State have no constitutional right to issue bonds in aid of the construction of railways, this court ought to follow those decisions. But the experience of this court has not been such as to encourage the adoption of this suggestion.”

The judge then reviews some cases heard by him, appealed to the Supreme Court, in which the court did not agree with the circuit judge as to the effect of its earlier decisions, and then proceeds:

“ The doctrine of stare decisis is a salutary one, when applied within proper limits. But a decision which is radically wrong in principle ought not to be followed, no matter how long it may have been acquiesced in or how many times it may have been followed. * * * In this State the authority for holding that municipal corporations have no constitutional right to vote aid to railroad companies in the construction of railways is found in the case of People v. Township Board of Salem. Believing, as I do, that the doctrine of that case is radically wrong, and has been overthrown by the decisions of the Supreme Court of the United States, I must decline to follow it. The motion for an injunction should be denied. ”

In the answer filed in this proceeding by the circuit judge, he says he was so firmly convinced of the correctness of the views expressed by him in his opinion, of the constitutionality of the act in relation to the issuing of the bonds, that he did not deem it necessary to consider the other questions in the casé. It may be necessary to consider them briefly here.

First, it is said complainant has an adequate remedy at law. This suggestion is met by the case of Curtenius v. Railroad Co., 37 Mich. 583, where it is held that a bill like the one filed in this case can be filed under the circumstances shown by this case.

It is said that, as it is not shown the taxes of complainant would amount to $100, he cannot maintain this bill. The allegation is that the property subject to taxation» and which might be sold for the tax if it was unpaid, is of the value of $2,000. The case is governed by Fuller v. City of Grand Rapids, 40 Mich. 395.

It is urged that Act No. 438 of the Local Acts of 1895, under which these bonds were issued, is constitutional. If that act is to be interpreted as authorizing the issuing of bonds in aid of railroad enterprises, and if that was the purpose of procuring its enactment, it is a scheme evasive in character, in which the attempt is made to defeat the plain provisions of the Constitution, as interpreted by the courts. Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (8 L. R. A. 851). Whether legislation of this character is constitutional or not is no longer an open question in the courts of this State. Prior to 1870 the disposition on the part of townships, cities, and villages of this State to vote municipal aid to railroads and other corporations was so widespread that had it not been for the wise provisions of the Constitution, as interpreted by the courts, these municipalities in many instances would have so incumbered themselves with debt, in aid of enterprises which were not needed, as to be a serious menace to their prosperity. Many aid bonds had been issued, and others were to be issued. The question was raised in the case of People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400). Because of the magnitude of the interests involved, the case excited widespread attention. The parties in interest were represented by as able counsel as ever appeared in any one case before any court in this State. The case was given patient and careful consideration by the court, whose membership then, in point of ability, was not excelled by any State court. The opinion was written by one of the ablest jurists this or any other country has ever known. Justice Cooley was then at the height of his great powers. In an elaborate and well-considered opinion, in which all the questions involved were ably discussed, it was held that legislation of this character was unconstitutional. A year later the question was again raised, in People v. State Treasurer, 23 Mich. 499. The learned justice who wrote the opinion in People v. Township Board of Salem, supra, wrote the opinion in this case, and, i-eferring to the prior case, said:

“Our conclusion, therefore, was thát the legislature could neither compel the taxation of municipalities in aid of railroad companies, nor could it empower them, in order to give such aid, to tax themselves, or to contract indebtedness which must be paid by taxation. * * * The conclusion reached by the majority of the court was one which struck at the root of all the legislation of which the act in question was an instance. We found no warrant for it in the Constitution. On the contrary, we found that it assumed to take from the citizen his property under a pretense of taxation, but in a case and for a purpose not admitting of an exercise of that power. Our Constitution has carefully provided a shield against an invasion of the citizen’s right to his property, in the provision which guarantees to every person due process of law. Article 6, § 32. To take a man’s property from him under pretense of taxation, for a purpose for which taxation is not admissible, is not due process of law, but is an unlawful confiscation.”

Justice Graves, who wrote a dissenting opinion in the Salem Case, concurred in this!

The question again arose in 1873, in the case of Thomas v. City of Port Huron, 27 Mich. 320, where Justice Cooley wrote the opinion, in which the doctrine of the two other cases was reaffirmed.

The townships and municipalities ceased to vote aid to corporations. The people indicated no desire to change the Constitution so that this might be done. For a quarter of a century the doctrine announced in the case of People v. Township Board of Salem has been regarded as the settled law of this State, and, so far as we know, has gone unchallenged in any of the courts of this State until a different rule was announced in this case. Section 3, art. 6, of the Constitution of this State, provides:

“The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”

Our attention has not been called to any constitutional provision authorizing the judge of a circuit court, however learned and able he may be, to overrule the decisions of the Supreme Court. So, the doctrine of People v. Township Board of Salem must still be regarded as the law in all of the courts of the State.

It is urged the granting or refusing a writ of injunction calls for the exercise of his discretion upon the part of the judge, and will not be reviewed by mandamus; counsel citing 1 High, Inj. (3d Ed.) § 15, Reddall v. Bryan, 14 Md. 444 (74 Am. Dec. 550), and Lansing Lumber Co. v. Ingham Circuit Judge, 108 Mich. 305. It is true that courts hesitate to review the action of a trial judge involving matters of discretion, and will not do so unless it is necessary that justice may be done. In the note to section 15, 1 High, Inj., it is said: “This discretion, however, is by no means an arbitrary one, and is to be exercised in accordance with established principles of law and equity.” In the case of Lansing Lumber Co. v. Ingham Circuit Judge, supra, the writ of mandamus was 'issued. In Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479, a writ of mandamus was issued to set aside an injunction; the court holding it was a prerogative writ, designed to afford a summary and specific remedy, where the party applying for it would otherwise be subjected to serious injustice. In this case the circuit judge said, if the decisions of this court are to control, the relator was entitled to the writ of injunction. It is not a case where, in refusing the writ of injunction, the judge exercised his discretion in accordance with established principles of law and equity, but it is a case where he substituted his judgment of what the law ought to be for the law itself, as determined by the repeated rulings of this court.

The writ of mandamus will issue as prayed.

The other Justices concurred.


text:
    RANIVILLE v. KENT CIRCUIT JUDGE.
    Garnishment — Examination oe Garnishee — Notice.
    The provision of 2 How. Stat. § 8061, giving to the plaintiff in garnishment proceedings the right to bring the garnishee before the circuit judge or a circuit court commissioner for examination, upon a notice of ‘ ‘ not less than three nor more than ten days,” unless such time is enlarged by the court, has reference to resident garnishees only.

      Mandamus by Felix Raniville to compel William E. Grove, circuit judge of Kent county, to vacate an order setting aside the default of a nonresident garnishee defendant.
    Submitted June 28, 1898.
    Writ denied September 20, 1898.

      Rood & Hindman, for relator.

      Me Garry & Nichols, for respondent.
   Montgomery, J.

The question which relator’s counsel present in this case calls for a construction of a portion of section 8061, 2 How. Stat., relating to the proceedings against garnishees. The provisions are:

‘! If such plaintiff shall file in said cause a demand for the examination of such garnishee before said judge or a circuit court commissioner, and shall cause a copy of the same to be served on such defendant, with a notice from the plaintiff or his attorney requiring such garnishee to appear before the judge or a circuit court commissioner, at a time and place to be named in such notice, not less than three nor more than ten days after service of such notice, which time may be enlarged by the judge or commissioner on special cause shown, and submit to an examination, on oath, concerning all matters of his liability as such garnishee under this act, which copy shall be served, and such service proven, when required, in the same manner as in cases of service of a declaration in suits commenced by declaration, such garnishee defendant shall appear and submit to such examination as required by such notice. And if such garnishee shall fail to appear for examination at the time and place appointed by such notice, or if such garnishee shall fail or refuse to file his answers to such written interrogatories as required by this act, or if such answers are not full and responsive to such written interrogatories, the judge of the court, or a circuit court commissioner, upon application of the plaintiff, shall make an order that the garnishee do appear before him and submit to such examination at such a time and place to be named in such order.”

This is followed by a provision authorizing entry of default in case of failure to appear.

The question presented by the relator’s counsel in this case is: Can a nonresident garnishee defendant, who has been served with original process in the suit, and who has responded by filing a disclosure, be required to appear and submit to an oral examination before a circuit court commissioner on a notice of from three to ten days? The question has never before been raised in this State, and our attention has not been directed to any decisions in other States which throw any light upon the subject. The relator’s counsel contend that, as the words employed in this provision of the statute are general and sufficiently comprehensive to include all garnishee defendants, they manifest a legislative intent to bring nonresidents as well as residents within its terms. We cannot accept this view as to the legislative intent. In this case the garnishee defendant resides in New York. It might happen that the garnishee defendant resided in Hawaii, and yet, if the relator’s contention be allowed, he might, after having filed his disclosure, and having departed to his home, be required to return and attend upon an examination, or he would have the alternative presented of awaiting in this State the decision of plaintiff’s counsel as to the course which he should think best to pursue. A construction entailing such hardships upon one whose only fault is to be indebted to or hold property belonging to a debtor ought not to be adopted unless imperatively demanded. Turning to the statute, we find that the time fixed for appearance is so short as to suggest that the service was intended for residents only. Furthermore, the language, “which copy shall be served, and such service proven, Avhen required, in the same manner as in cases of service of a declaration in suits commenced by declaration,” may well be construed to require a service within the jurisdiction; that is, either in the county where suit is brought, or in the county where service has been had under the provisions of section 8095.

The writ will be denied, with costs.

The other Justices concurred.


author: Per Curiam,

text:
    ECKHARDT v. DARBY.
    Schools — Use oe School-House — Religious Meetings.
    The voters of a school district, at a meeting properly called and held, are authorized to prohibit the use of the school-house for the purpose of holding religious meetings.

      Mandamus by George Eckhardt and others to compel James A. Darby and others, comprising the school board of District No. 5 in Kalkaska township, to allow relators the nse of the school-house for religious meetings. The circuit judge, Ered H. Aldrich, denied the writ, and the relators sought to review his action on certiorari.

    Writ of certiorari denied September 20, 1898.

      Totten & Phelps, for relators.
   Per Curiam,

The writ of certiorari is denied. The voters of the district, at a meeting properly called and held, voted not to permit relators the use of the schoolhouse for the purpose of holding meetings. Their action was regular, and authorized by the law.


author: Per Curiam.

text:
    BRIGGS v. WAYNE CIRCUIT JUDGES.
    Mandamus — Dissolution of Injunction.

      Mandamus will not issue to compel a circuit judge to dissolve a preliminary injunction, in the absence of a showing of an abuse of discretion.

      Mandamus by Dexter J. Briggs to compel George S. Hosmer, Robert E. Frazer, and Willard M. Lillibridge, circuit judges of Wayne county, to dissolve a preliminary injunction. Order to show cause denied
    September 20, 1898.

      John J. Speed, for relator.
   Per Curiam.

Upon filing the bill in chancery in this case, the court issued a preliminary injunction. Answers were filed, and a motion made to dissolve the injunction. Three of the circuit judges heard the motion, and refused to grant it. We see no occasion for interfering with the discretion of the court in this matter. We think the court did right in retaining the injunction until the hearing upon pleadings and proofs. The order to show cause will be denied.


text:
    HALL v. MANN.
    1. Tax Sales — Conclusiveness of Decree.
    All questions as to the validity of a tax upon land are foreclosed by a valid decree for the sale of the land for nonpayment of the tax.
    2. Same — Notice.
    A tax sale will not be set aside in equity because the owner of the land, a nonresident, had no actual notice of the proceedings, and supposed that the tax had been paid by one to whom he had sold the land by contract requiring the vendee to pay the taxes.
    8. Same — Enrollment.
    Nor is such sale void for want of enrollment of the decree.

      4. Same — State Lands — Purchase Price — Appeal—Objections not Raised Below.
    An objection that a purchaser of State tax lands did not pay all taxes remaining a lien thereon at the time of purchase, as required by section 84 of the tax law of 1898, cannot be raised for the first time on appeal from an order dismissing a petition to set aside the sale.
    5. Same — Remanding Record — Amendment.
    But, under the circumstances of this case, the record was remanded for rehearing, with leave to amend the petition.
    Appeal from Muskegon; Russell, J.
    Submitted February 2, 1898.
    Decided September 20, 1898.
    Petition by Alice A. Hall against M. E. Mann and George F. Brown to set aside a tax sale. From a decree dismissing the petition, petitioner appeals.
    Reversed on terms.

      Broivn & Adams, for petitioner.

      Black & Brown (Fred A. Maynard, Attorney General, of counsel), for defendants.
   Moore, J.

This is an application for a rehearing, with leave to appear and answer the petition of the auditor general in a tax proceeding. The petition claims the proceedings were void:

First. Because the owner was a nonresident of the State, who had sold the land upon a contract, to a purchaser who was to pay the taxes; that the purchaser was also a nonresident, who sent the money to pay the taxes to his brother, who was a resident, but who failed to pay the taxes.

Second. Because the owner had no notice of the tax proceedings until after the deed had been issued by the State to the defendants.

Third. Because included in the tax was a drain tax, which tax it is alleged is “illegal and void for the reason that the officers of the law failed to take the necessary proceedings to establish said drain and to perform their duty in the manner and at the time required. Said drain tax, as well as other taxes, are therefore illegal and void, and the decree ,as well, for the following reasons:

“1. That there is no release of any right of way for said drain by the owners of the land along which said drain was constructed, and no release by your petitioner.
“ 2. That no application was ever made to the probate court, as required by law, for the appointment of commissioners to determine the necessity for such drain, and for taking of private property for the use and benefit of the public, and for the just compensation to be made therefor.
“3. That there has been no notice or citation from the probate court to the owner or occupant of said lands to show that they were to be affected, or her rights were to be in any way involved.
“4. That said drain taxes are void for the reason that there was more than twice as much attempted to be assessed and collected against said land as was authorized or necessary; there being about $1,074.45 levied for drain purposes for said year, when there was only about $440.54 required to be expended or authorized by law if the proceedings had been legal.
“5. That there is’no order of the board of supervisors of the county of Muskegon directing said drain taxes to be spread upon the tax roll of the year 1893, as required by law.
“6. That the papers and records necessary to show the history and proceedings in this cause, which are required to be made by the county drain commissioner, were never deposited or filed in the county clerk’s office for over 10 months after the tax was spread upon the tax roll. Consequently said drain taxes are unauthorized, and illegally spread upon the roll, and are therefore void.
“7. That said lands were assessed in one parcel by the supervisor of the township in which they are located, but at the sale were sold in separate parcels; that, at some time between the time of assessment and the sale for taxes, said land was separated in different parcels, and the tax apportioned, by some person not authorized by law, without regard to the different values of the separate parcels, — the same amount of general taxes being levied on the north 40 acres of said land as the south 40 acres, whereas the south 40 acres was worth twice as much as the north 40.
“8. Because the board of supervisors of said county .of Muskegon, in 1893, borrowed and raised by taxes more than $1,000 for constructing and repairing public buildings, highways, and bridges within said county, without such action having first been authorized by a majority of the electors of such county voting thereon, contrary to the Constitution of the State of Michigan.
“9. Because the board of supervisors of said county did, not, at their October session in 1893, nor at any other session in that year, examine the assessment rolls of the several townships and cities in said county, and ascertain whether the relative valuation of the real property in the respective townships and cities had been equally and uniformly estimated.
“10. Because the board of supervisors of said county did not, at any session in 1893, equalize the assessment rolls of the several townships and cities in said county by adding to or deducting from the valuation of the taxable property in any of the townships or cities such an amount as, in their judgment, would produce relatively an equal and uniform valuation of the real property in the county, and enter the amount added to or deducted from the valuation in any township or city upon their records.
“11. Because said board of supervisors did not, at any session in 1893, cause to be entered upon their records the aggregate valuation of taxable real and personal property of each township and city in said county as determined by them.
“12. Because the board of supervisors of said county did not, at their annual October session in 1893, ascertain and determine the amount of money to be raised for county purposes, and because said board did not apportion the amount so determined, nor any amount, either for county or State taxes, among the several townships in the county, as provided by law.
“13. Because the decree and other proceedings in this case were not enrolled prior to sale, or prior to the filing of the report of the treasurer, and have not yet been enrolled.
“14. No certified copy of decree was attached to tax record and delivered to the county treasurer before sale, as required by section 67, Act No. 206, Pub. Acts 1893.
“15. Because the county treasurer did not make sale of this property in the manner provided by law, said land being first offered to the person who would take the entire description for the amount charged against it.”

Upon the hearing, the court declined to hear proofs, except in relation to reasons 14 and 15 of subdivision 3. The petitioner declined to offer any proofs under the ruling of the court. The petition was dismissed, and the petitioner brings the case here by appeal.

All of the questions raised by the petitioner, except the two in which the court said she might offer proof, have been decided against the petitioner in the recent cases of Muirhead v. Sands, 111 Mich. 487; Auditor General v. Hutchinson, 113 Mich. 245; Hilton v. Dumphey, Id. 241; Auditor General v. Sparrow, 116 Mich. 574; and Hughes v. Jordan, ante, 27.

The appellant has handed us a supplemental brief since the case of Hughes v. Jordan was handed down, in which attention is called to the fact that, when defendants obtained their deed, they did not pay all taxes then a lien upon the property. This claim was not made in the petition filed before the circuit judge, though it does appear in an affidavit attached thereto. If it had been made in the petition, and established by proof, the claim would have been well taken. As it is now made for the first time, we do not feel at liberty to consider it upon this record; but, upon the payment of costs, leave will be granted to petitioner to have the case remanded, with leave to file an amended petition and a rehearing .in the court below; otherwise the decree dismissing the petition is affirmed, with costs.

The other Justices concurred.