text:
    LIAN v. HENRY BRADFORD & CO.
    1. Estoppel — Amendments—Declaration.
    Where plaintiffs' declaration contained two counts, one for fraud and deceit in the sale of land, and another .based . upon rescission of the contract, and on the trial defendants consented to the amending of same by striking out the count for rescission, they are estopped to allege error upon the allowance of said amendment.
    2. New Trial — Overwhelming Weight of Evidence.

      Held, that the verdict for plaintiffs was not against the overwhelming weight of the evidence.
    3. Fraud — Measure of Damages. .
    In an action for fraud and deceit in the sale of land, the measure of damages is the difference between the value of the premises had they been as represented and what they were actually worth.
    4. Same — Damages—Excessive Verdict.
    In such action, where there was testimony that if the land had been as represented it would have been worth $2,000, a verdict for $1,500 cannot be said to be excessive.
    Error to Newaygo; Barton (Joseph), J.
    Submitted January 20, 1920.
    (Docket No. 35.)
    Decided February 27, 1920.
    Case by Carl L. Lian and another against Henry Bradford & Company and another for fraud and deceit in the sale of land. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Cross, Foote & Sessions, for appellants.

      William J. Branstrom, for appellees.
   Clark, J.

Plaintiffs, Carl L. Lian and Jensine Lian, were husband and wife and lived in Chicago in 1910. Mr. Lian was a laborer without experience in farming. Henry Bradford, as Henry Bradford & Company of Chicago, was a dealer in real estate, and defendant Jesse B. Bradford was his cashier, to whose office plaintiffs went to buy land. After some preliminaries a contract was made for 40 acres of land near Marl Lake, Newaygo county, as plaintiffs claim. The consideration of $1,000 plaintiffs were to pay in monthly installments. Later the defendant corporation was organized and seems to have succeeded to the business of Henry Bradford. Jesse B. Bradford continued in the service of the corporation. In May, 1915, plaintiffs having paid in installments a total of $800 and the taxes and having the balance due upon the contract of $217 tendered it to defendants and demanded a deed. Defendants had no land near Marl Lake and plaintiffs asked return of the money and were refused. Defendants offered other land and plaintiffs finally accepted a deed of 40 acres of land in Newaygo county near Hess Lake. Plaintiffs came out to this land and as they claim first saw it in April, 1918. This suit followed. The declaration in substance alleged that about May 10, 1915, defendants offered to sell plaintiffs 40 acres of land in Newaygo county, and to induce plaintiffs to purchase defendants represented that the land was within three miles of'the village of Newaygo, was the best kind of farm land, would raise abundantly all crops, was good productive clay soil, well suited to fruit raising, and had on it valuable timber,-and that the plaintiffs relying on the truth of such representations were induced to pay and did pay to defendants for the land the sum of $1,000, that the representations were false and fraudulent and made knowingly with intent to defraud, and that the land was absolutely worthless. The damages averred were $1,~ 000 paid defendants, the expense of moving from Chicago, and loss of earnings. The second count is substantially like the first except that it proceeds upon the theory of a rescission and tenders a reconveyance of the premises. We quote from plaintiffs’ brief:

- “The original declaration in this case consists of two counts identical in description of the wrong sued upon. The first count is based on the affirmance of the contract, although paragraph nine thereof does not state the proper measure of damages in a case for fraud and deceit. The second count of the declaration is based on rescission of the contract and contains a paragraph whereby plaintiffs tender a reconveyance of the premises.” ,

When the parties were in court ready for trial counsel for plaintiffs asked leave to amend the declaration as to both counts so that the averments respecting damages should read:

“That because of the said fraudulent representations made as aforesaid by the defendants, the plaintiffs were led to believe that the said premises so purchased by them were worth upwards of $2,000, where, in truth and in fact, the said premises were worthless, and to that extent they have been damaged in the sum of $2,000.”

And—

“That the plaintiffs, because of the premises have been greatly injured and damaged to the extent of $2,000.”

And also to amend by striking out the paragraph of the second count as to rescission and tender of re-conveyance. The amendments were allowed. Whereupon the following:

“Mr. Foote: Now representing those two defendants. Your honor, I object to the application made here, to the motion made on the part of the plaintiffs’ attorney to amend the declaration for the reason that it changes the whole theory of the plaintiffs’ case.
“The Court: And therefore is a surprise?
“Mr. Foote: I will say that, yes; I don’t want to say, however, that on account of being surprised that I am desiring to have the case continued, anything of that kind, I am not going to go that far.
“The Court: I must accept it as I see it, Mr. Foote, and let me say that the court will allow the amendment as moved. Now that is up to you to proceed to trial or ask for such time as necessary to meet it.
“Mr. Foote: To meet this new claim?
“The, Court: Yes.
“Mr. Foote: Well, your honor, I take the position that if this amendment is going to be allowed, that it is a surprise to me so far as the claim of the plaintiffs is concerned. I have gone upon the theory that the claim of the plaintiffs here was a rescission of this contract, and if they are going to change their, theory, why, of course, I am surprised, and I am not ready to go on.
“The Court: Very well, how much of an adjournment do you want?
“Mr. Foote: Why, it should go over the term; I don’t know why it shouldn’t; that is the usual manner in those things. * * * The case ought to go over the term, it seems to me, that is what I ask at this time in behalf of the defendants.
“The Court: Do you say to me, Mr. Foote, that you couldn’t safely proceed to trial in defense of this declaration as now stands before the next term of court. In other words, you couldn’t prepare to meet it in your judgment?
“Mr. Foote: I-would say so, your honor, and I will say so for Mr. Branstrom’s benefit, upon this theory, that the value of the land becomes at issue now and therefore it will be necessary for us to have proof of the value of this land. * * * Do I understand then, if this case goes over, it will go over to the December term?
“The Court: Yes; I couldn’t put it over longer than to the next term.
“Mr. Foote: At this time, your honor, you can’t say whether there will be a jury here in December term or not?
“The Court: I can’t say.
“Mr. Foote: It will all depend on the work?
“The Court: Yes.
“Jury takes short recess.
“Mr. Foote: I withdraw my objections and I offer an amendment to my plea.
“The Court: Which is allowed without objection.”

And the following appears - in the reasons for denying motion for new trial:

“The court avers that while all the parties were in court ready to go to trial, the plaintiffs made a motion to amend their declaration, which was allowed, and thereupon the court stated to the attorney for defendants, the case would be continued to meet their convenience so as to give them an opportunity to meet whatever new matter was presented by the amendment; that thereupon the defendants and their attorney left the court room and were gone for a period of about an hour,. and when they returned they made the proposition to the attorney for the plaintiffs, that if the latter would make no objection to their amending their plea by adding thereto a notice of special defense, that they, the defendants, would withdraw their objection to the plaintiffs’ amendment of the declaration and that they would not ask for a continuance, but would proceed to trial forthwith, and that with this understanding between the court and the counsel for the respective parties, had in open court, the parties proceeded to trial.” .

Counsel for plaintiffs in his opening statement said plaintiffs were not claiming a rescission but damages for fraud and deceit, and upon this theory the case went to trial without further objection. Plaintiffs had verdict and judgment for $1,500. Errors assigned by defendants and discussed are:

“(1) Plaintiffs having rescinded the contract, tendered a reconveyance, and brought suit to recover the purchase price of the land, thereby elected their remedy, and it was reversible error for the court to allow plaintiffs to amend their declaration and thereby change the nature of the plaintiffs’ cause of action and the rule of damages applicable thereto.
“(2) Error in refusing to grant a new trial and in the reasons given therefor.”

1. To determine whether there was merit (which we do not concede, see Glover v. Radford, 120 Mich. 542; Humiston, Keeling & Co. v. Bridgman, 195 Mich. 82; 9 R. C. L. p. 961) in defendants’ objection to the allowance of the amendments would not be decisive, for defendants withdrew the objection, were permitted to amend their plea, and the trial proceeded upon the pleadings as amended without further objection or question respecting the subject under consideration. Defendants, therefore, are estopped to allege error upon the allowance of the amendments. Linsell v. Linsell, 138 Mich. 64.

2. It is here urged that the verdict was contrary to the great and overwhelming weight of the evidence and that it was grossly excessive.

The trial court said:

“The court finds as a matter of law and fact, that the verdict of the jury was not contrary to the great and overwhelming weight of the evidence, and there was sufficient proofs in the case to support the verdict of the jury, and the same is not against the just rights of the defendants * * * and that the verdict and judgment are not excessive in amount.”

With these conclusions we are in accord. There was testimony that the land conveyed to plaintiffs was entirely worthless and without market value. One witness said: “I don’t know of anything it is any earthly good for.” There was also testimony that if the land had been of a quality, character and location agreeable to the representations which plaintiffs claimed were made to them by the defendants it would have been worth $2,000. The court correctly charged the jury that the measure of damage was the difference between the value of the premises had they been as represented and what they were actually worth.

No reversible error appearing, the judgment is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FREMONT CANNING CO. v. WATERS.
    1. Constitutional Law — Statutes—Presumptions.
    The presumption, being in favor of the constitutionality of ,a statute, before the courts are justified in declaring'an act unconstitutional its repugnancy to the Constitution must clearly appear.
    2. Samis — Licensing Dogs — Compensating Owners of Sheep Killed by Dogs.
    Act No. 347, Pub. Acts 1917, entitled “An act regulating the ownership and custody of dogs, providing for license and registration thereof, and the disposition of moneys received from license fees, and prescribing penalties for ■violation of this act,” and to repeal Act No. 48, Pub. Acts 1901, and all amendments thereto, held, not in conflict with section 21, Art. 5, of the Constitution, providing that no law shall embrace more than one object, which shall be expressed in its title.
    3. Same — Due Process of Law — Townships.
    Nor is said act in conflict with section 16, Art. 2, of the Constitution, providing that no person shall be deprived of his property without due process of law, because, under the act in question, the duty to pass on a claim for sheep killed by dogs devolved upon a justice of the peace rather than the township board, the fund from which said claim was paid not being a township fund.
    4. Same — Police Power — Regulation.
    Said act held, not tax legislation, but the exercise of the police power of the State in relation to the licensing of dogs, the killing of sheep and the compensation of the owners thereof.
    5. Same — Vested Rights — Townships.
    The township has no vested right in a fund created by said act by the licensing of dogs for the sole benefit of sheep owners.
    6. Appeal and Error — Mandamus — Certiorari — Admissions — Review.
    On certiorari to review mandamus proceedings by the owner of sheep to compel the township clerk to draw an order for sheep killed toy dogs on the certificate of a justice of the peace, in conformity with Act No. 347, Pub. Acts 1917, where defendant admits in , his answer that the certificate of the justice, together with an affidavit made and sworn to by a witness for plaintiff was duly filed with defendant, the latter is in no position to raise the questions that the testimony of said witness was not forwarded, and that it does not appear that he was sworn.
    Certiorari to Newaygo; Barton (Joseph), J.
    Submitted January 21, 1920.
    (Calendar No. 28,955.)
    Decided February 27, 1920.
    Mandamus by the Fremont Canning Company to eompel James L. Waters, clerk of Dayton township, to draw an order in compliance with Act No: 347, Pub. Acts 1917. From an order denying the writ, ■plaintiff brings certiorari.
    Reversed.

      White & Reber (William, J. Branstrom, of- counsel), for appellant.-

      Cross, Foote <& Sessions, for appellee.
   Stone, J.

This is certiorari to mandamus, and the questions raised and discussed relate to the constitutionality of Act No. 347 of the Public Acts of -1917, entitled,—

“An act regulating the -ownership and custody of dogs, providing for license and registration thereof, and the disposition of moneys received from license fees, and prescribing penalties for violation of this act, and 'to repeal act number forty-eight of the Public Acts of nineteen hundred one, and all amendments thereto.”

By the record it appears that on the night of February 8, 1919, a flock of sheep owned by the plaintiff was attacked by a dog or dogs, while properly confined upon a farm owned by the plaintiff in Dayton township, Newaygo county, resulting in the death of 121 sheep. As soon as the damage was discovered, and on February 9, 1919, the plaintiff, pursuant to the provisions of said Act No. 347, requested Jesse E. Garlough, a disinterested justice of the peace of said township, to view the damages caused by the attack above mentioned, and to make his certificate thereof. On the same date the said justice made his certificate, a true copy of which appears in' the record, specifying that 121 sheep owned by the plaintiff were killed by a dog, or dogs, and stating the amount of the damage therefrom to be the sum of $1,348.80. This certificate was thereupon delivered by the justice to the defendant, who was then, and is now, the township clerk of Dayton township. The plaintiff requested the defendant to draw an order upon the special fund provided by the said act, for the amount of the damages so certified by the justice, and payable to the order of the plaintiff. The defendant refused to do this, and a formal demand was made upon him, which was likewise refused. It appears that no order had ever been drawn or tendered to the plaintiff with respect to the claim. A petition for mandamus was then filed in the circuit court, against the defendant, the township clerk, to enforce his compliance with the provisions of said act. The usual order to show cause was made, and in the return or answer of the defendant, substantially all of the allegations of fact in the petition were admitted, but the defense was based upon the ground that said Act No. 347 is unconstitutional in several respects.

The circuit court held the act unconstitutional and dismissed the petition. . The precise ground upon which the learned circuit judge held the act unconstitutional does not appear in the record, the order denying the petition stating that said petition was "denied for the reason that Act No. 347 of the Public Acts of 1917, under which the action is brought, and sought to be sustained, is considered unconstitutional.”

The grounds upon which defendant’s counsel claim the act to be unconstitutional are:

(1) That it is in conflict with, and In violation of the provisions of section 21 of article 5 of the Constitution of this State, which provides that “No law shall embrace more than one object, which shall be expressed in its title.”
(2) Because it is in conflict with, and'in violation of the provisions of section 16 of article 2 of the Constitution of this State which provides that “no person shall * * * be deprived of his * * * property, without due process of law.”

1. In support of the first contention, it is claimed by counsel that there is nothing in the title of the act, indicating that it creates a fund for the payment of damages for sheep killed or wounded by dogs in certain eases, or that it authorizes township funds to be disbursed upon the certificate of a justice of the peace, without the regulatory control of the township board; and it is also urged that no person examining the title of the bill while it was pending in the legislature would have suspected that it created a fund for the payment of damages for sheep killed or wounded by dogs in certain cases, but that it would naturally have been inferred that the disposition of moneys received from license fees was such disposition as is usually made of license fees, such as depositing the same in some general or special township, county, or State fund or funds for disbursement in the manner provided by law. In support of their contention defendant’s counsel cite the following cases: People v. Beadle, 60 Mich. 22, 25; Wilcox v. Paddock, 65 Mich. 23; Brooks v. Hydorn, 76 Mich. 273, 278; Northwestern Manfg. Co. v. Wayne Circuit Judge, 58 Mich. 381; Davies v. Board of Supervisors, 89 Mich. 295; In re Hauck, 70 Mich. 396, 402; Wall v. Trumbull, 16 Mich. 228, 237; Callaghan v. Chipman, 59 Mich. 610, 613; Vernor v. Secretary of State, 179 Mich. 157 (Ann. Cas. 1915D, 128).

We cannot agree with counsel that the foregoing cases are decisive of the instant case. It has generally been held by the courts that the presumption is in favor of the constitutionality of a statute. This principle has been expressed in many different forms. Before we are justified in declaring an act unconstitutional its repugnancy to the Constitution must clearly appear. 6 R. C. L., title “Constitutional Law,” p. 98. Every intendment should be taken in favor of the propriety of the legislative action.

The attorneys for the plaintiff point out with much force that an analysis of this title shows that there are five elements mentioned therein:

(a) Ownership and custody of dogs.

(5) License and registration thereof.

(c) Disposition of moneys received from license fees.

(d) Penalties for violation.

(e) Repeal of previous act.

A careful examination of the entire act, section by section, will disclose that the subject-matter of each section will fall under one or another of the above elements. The act is too .long to be here set forth. We think that it sufficiently appears that a fund is here created for the payment of damages for sheep killed or wounded by dogs in certain cases; and counsel for defendant beg the entire question when they claim that the funds are ■ “township funds.” This is not tax legislation, but is legislation in the exercise of the police power of the State in relation to dogs, the ídlling of sheep, and the compensation of the owners thereof. •

As we said in Home Telephone Co. v. Railroad Commission, 174 Mich. at page 228, we repeat here:

“This court held, in. Westgate v. Adrian Township, 161 Mich. 333, that by the term ‘regulate,’ in the title of an act, both government and restriction are intended. That case reviews and discusses most of the decisions of this State upon the subject, and may be cited as covering the entire question of title. It'was there held that any provision germane to the subject expressed in a title may properly be included in the act; that it is sufficient if the title fairly expresses the subject, or is sufficiently comprehensive to include the several provisions relating to or connected with that subject. (See cases cited.)
“The following authorities also may be examined upon the point that this prohibition of the Constitution should receive a reasonable, and not technical construction, and that none of the provisions of a statute should be regarded as unconstitutional where they all relate, directly or indirectly, to the same subject, having natural connection, and not foreign to the subject expressed in its title.” (See cases cited.)

In Kurtz v. People, 33 Mich. 279, Justice Campbell, speaking for the court, said in reference to this provision:

“It is a very wise and wholesome provision, intended to prevent legislators from being entrapped into the careless passage of bills on matters foreign to the ostensible^ purpose of the statute as entitled. But it is not designed to require the body of the bill to be a mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title.”

An examination of the act will show that there are no matters contained in the body of the act which are not, at least indirectly, referred to in the title. Probably the term “and the disposition of moneys received from license fees” is the most questionable. We think, however, that the procedure necessary to be taken to enable the owner of sheep to enforce his claim for damages is what is intended by this clause. Certainly it deals with the disposition of the moneys received from the license fees. We are unable to find any merit in the contention of defendant’s counsel upon this question. We think the title in question is broad enough to comprehend the subject-matter of this act.

2. Upon the subject of “due process of law” counsel for defendant cite People v. Dickerson, 164 Mich. 148 (33 L. R. A. [N. S.] 917, Ann. Cas. 1912B, 688), and Cooley’s Constitutional Limitations (7th Ed.), p. 502, where that author adopts the definition given by Daniel Webster in the Dartmouth College Case, 4 Wheat. (U. S.) 518, 581, as follows:

“By the law of the land is most clearly intended the general law, a law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.”

Counsel also cite Parsons v. Russell, 11 Mich. 114 (83 Am. Dec. 728); Houseman v. Kent Circuit Judge, 58 Mich. 364, 367; Titus v. Chase, 126 Mich. 621, 623, and other cases. They then assert that “the powers of a township board can no more be conferred upon a justice of the peace than can the powers of a justice of the peace be conferred' upon a township board.”

In our opinion the authorities cited upon this branch of the case are not applicable to the quéstion we are considering. Under Act No. 48 of the Public Acts of 1901 the duty to pass on the claim we are considering was devolved upon the township board. This act is conceded to be constitutional by counsel. By Act No. 347 of the Public Acts of 1917 that duty was by the legislature placed upon a justice of the peace of the township. May the legislature lawfully do this? We can see no reason why it may not. The township board is not a constitutional body. It is a body created by the statute. Why a subsequent legislature may not take certain statutory powers and duties from a township board and place them upon a justice of the peace (which last-named officer is a constitutional officer), it is difficult for us to understand. That is just what has been done by said act No. 347. We think that such action was within the power of the legislature.

The procedure under Act No. 347 is not anomalous in this State. There has been for some years a similar statute relating to the payment of bounties for the killing of English sparrows (2 Comp. Laws 1915, § 7260 et seq.). There application is made to the township clerk, who issues a certificate stating the amount of bounty. Such certificate is presented to the county clerk, who draws a warrant on the county treasurer. There is similar provision relating to bounties for the killing of common rats (2 Comp. Laws 1915, § 7264 et seq.). Other instances might be referred to.

We do not agree with counsel for defendant in the claim that this fund belongs to the township. It does not belong to the township as a township fund, but is created for the sole benefit of sheep owners. The statute creating the fund provides that it shall be paid to a particular class of persons. The township has no vested right in the fund, and the legislature may at any time change or modify the statute. Davock v. Moore, 105 Mich. 120 (28 L. R. A. 783); Longyear v. Buck, 83 Mich. 236 (10 L. R. A. 43). As to the constitutionality of a similar statute see Cole v. Hall, 103 Ill. 30. We think there is no merit in the claim that the township is here being deprived of its property without due process of law.

Finally,, it is contended that if Act No. 347 is constitutional and valid, still plaintiff’s petition was properly denied, for the reason that the certificate of the justice did not conform with the requirements of section 7 of the act, and for the further reason that the testimony of the witness Frank Bradway was not forwarded to the defendant with the certificate of damage; also that it does not appear that the witness was sworn. The certificate appears to be in due form. The defendant is in no position to raise the other questions. By the sixth paragraph of the petition for mandamus it was alleged as follows:

“That said certificate of the justice, together with an affidavit made and sworn to by the said Frank Bradwáy, a copy of which said affidavit is hereto annexed and marked Exhibit B. were, thereupon by said justice, duly delivered to James • L. Waters, clerk of said township of Dayton, named respondent herein, and by the said clerk, as your petitioner is informed and verily believes, duly filed and recorded in his office.”

In the answnr of the defendant appears the following:

“He admits to be true the allegations contained and set forth in the sixth paragraph of said petition.”

After an examination of all the questions urged by defendant, we are of the opinion that the court erred in holding said act unconstitutional, and in dismissing said petition. The order and judgment are therefore reversed, with costs to plaintiff.

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


text:
    MAYCROFT v. THE JENNINGS FARMS.
    1. Conversion — Trover—Rote oe Damages.
    While the technical action of trover has been abolished in this State by the judicature act (3 Comp.. Laws 1915, § 12350), the action of trespass on the case for the unlawful conversion of personal property is retained, and the rule of damages in such cases has not been changed, which is the true cash value of the property converted at the time and place of conversion, in the absence of any testimony showing a peculiar value in the goods to the owner,
    2. Same — Special Damages — Evidence—Sotticeency.
    In an action for the unlawful conversion of certain mortgaged personal property, consisting of two horses, two cows, one stump machine, and one double harness, by the foreclosure and sale thereof before the maturity of the chattel mortgage, the trial court was in error in submitting to the jury the question of damages suffered by reason of loss of possession of said property, the special damages claimed not being the proximate or natural result of the act of defendant, and the testimony being too speculative and conjectural upon which to base a verdict.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted January 20, 1920.
    (Docket No. 91.)
    Decided February 27, 1920.
    Case by Charles - Maycroft and another against The Jennings Farms for the unlawful conversion of certain mortgaged personal property. Judgment for plaintiffs. Defendant brings error.
    Affirmed, conditionally.

      William J. Branstrom and Charles B. Cross, for appellant.
    • R. J. Macdonald (D. A. Macdonaid, of counsel), for appellees.
   Stone, J.

Plaintiffs brought this action to recover damages for the alleged unlawful conversion of certain mortgaged personal property, consisting of 2 horses, 2 cows, 1 stump machine, and 1 double harness, by the foreclosure and sale thereof by defendant before the maturity of the chattel mortgage. The mortgage bore date March 3, 1916, and was due December 31, 1916. It appeared that on or about June 23, 1916, the defendant took possession of the property covered by the mortgage, and after advertising it for sale under the mortgage, sold the same on June 29, 1916, against the protest of the plaintiffs.

There was a claim by defendant of a new arrangement and agreement between the parties, which in our view of the case it is not important to here state, as the question was submitted to the jury, and they found against the defendant’s claim. Upon the trial, plaintiffs were permitted to amend their declaration by adding the following allegation for special damages:

“That the plaintiffs by leave of the court, hereby amend their declaration by adding a new count for special damages which the plaintiffs suffered by and through the unlawful seizure and conversion of the goods, chattels and personal property in the chattel mortgage of the plaintiffs, hereinbefore described, which were sold and converted illegally and unlawfully in the pretended foreclosure proceedings upon said mortgage June the twenty-ninth, 1916, whereby the use and enjoyment, earnings and returns of the two horses, their harness and wagon and two milk cows were diverted from the plaintiffs and were wholly lost to them, to their damage five hundred dollars,”

The aggregate value of the property claimed to have been sold and converted by defendant was $525.00. It was admitted by plaintiffs, and the court so instructed the jury, that at the time of the sale plaintiffs were owing defendant upon said mortgage $125 of principal and $2.55 interest, although the indebtedness was not then due. The difference between the actual value of the property alleged to have been converted and the amount conceded to have been owing upon the mortgage at the time of such alleged conversion was $397.45.

Upon the trial the plaintiff Charles Maycroft was permitted to testify notwithstanding the objection of defendant as follows:

“Q. What damage did you sustain aside from the", loss of the value of this property in that sale by the taking of this property and the selling of it by this defendant? * :|! *
“A. Taking the team away from me, I had nothing left to work with but my hands, where if I had had the team I could have been working with them, earning something with the team of horses myself, besides being deprived of the use of the cows. The family had to go without the use of my cows, the milk and butter and so on.
“Q. What was this team worth to you per day in your business?
“A. They were worth at least a dollar and a half a day over and above their keeping.
“Q. Would that be a reasonable price?
“A. I think it would.
“Q. And what were your cows worth to you per day?
“A. Besides what butter and milk we had used for the month before they took them we were selling about four dollars worth of butter a week.”

The case was submitted to the jury, and they were charged as follows:

“If you come to the question of damages you should consider all the testimony in the case as to the condition and value of the property taken at the time of such taking, and also all of the testimony as to what damage the plaintiffs suffered by reason of the loss of possession of such mortgaged property taken from their possession by the defendant’s agents, from the time it was taken up to December 31, 1916, when the mortgage became due, and from such testimony determine what amount plaintiffs are entitled to, if any, under the instructions I have given you.”

The jury awarded the plaintiffs $773.45 damages, and judgment was entered accordingly. Adding the $127.55 due upon the mortgage, which had been deducted by the jury, would make the entire sum allowed for damages $901.

The defendant has brought the case here by writ . of error. The assignments, of error relied upon by appellant are:

(1) Error in refusing to direct a verdict for defendant.

(2) Error in the admission of evidence and in the charge of the court upon the subject of damages.

1. We do not agree with appellant upon the first point, and overrule the same without discussion.

2. The second point raises the interesting question whether or not the plaintiffs’ measure of damages should have been limited to the value of the property alleged to have been converted, at the time and place of such conversion, with interest thereon. While the technical action of trover has been abolished in this State, see section 1, chap. 11, judicature act (3 Comp. Laws 1915, § 12350), the action of trespass on the case for the unlawful conversion of personal property is retained, and the rule of damages in such cases has not been changed. The general rule in this State was recently stated by Chief Justice Steere, speaking for the court, in Hautala v. Dover, 176 Mich. at page 371, as follows:

“The measure of damages in a trover case is the true cash value of the property converted at the time and place of conversion, in the absence of any testimony showing a peculiar value in the goods to the owner. * * * Tuttle v. White, 46 Mich. 485 (41 Am. Rep. 175); Iler v. Baker, 82 Mich. 226; Spoon v. Railway Co., 86 Mich. 309.”

For a reference to earlier Michigan cases see note 2, appended to Dalton v. Laudahn, 27 Mich. 529. That the decisions in other jurisdictions differ is evident from the language of text-writers. Reference to 38 Cyc. p. 2100 will disclose the following:

“It is proper to award as damages not only the value of the property converted, but also compensation for the wrongful detention thereof, such compensation being either interest on the value, or a greater sum if interest will not fully compensate the owner.”

Many cases are cited, some of which, in our opinion, do not sustain the text.

A reference to 28 Am. & Eng. Enc. Law (2d Ed.), p. 734, will show the following language:

“Where the plaintiff demands judgment for the value of the chattels converted and detained by the defendant, he is not entitled also, to the value of the use of the chattels while detained by the defendant.”

A number of cases are there cited, including Blaisdell v. Scally, 84 Mich. 149. The rule recognized in the Blaisdell Case would seem to settle the question in Michigan, as contended by defendant. We have examined a score of cases in other jurisdictions. The great weight of authority is to the effect stated in the 28th volume of American & English Encyclopedia of Law in the above reference. Upon this subject there is an extended note in L. R. A. 1915B, at page 291. The note is to the case of Martinez v. Vigil, 19 N. M. 306 (142 Pac. 920). The headnote of the case is that ordinarily, and except in special circumstances, not present in that ease, the measure of damages for the conversion of personal property is the value of the property, at the time and place of conversion, and interest. There the action was for damages for the conversion of certain sheep, cattle and horses which were conveyed by a certain bill of sale. The appellant complained of the rule as to the measure of damages which was submitted to the jury, which was as follows:

“In fixing the amount of said damages, you should take into consideration the reasonable value of said property at the time it was taken, and also the reasonable value of its use from that time until how, and allow plaintiff such a sum as, in the exercise of sound discretion, you may believe, from all the facts and circumstances in evidence, will be a fair and just compensation for the taking and detention of said property.”

After stating that this instruction was clearly erroneous, the court" said:

“Conversion of personal property amounts to an attempt, on the part of the person doing the act, to wrongfully transfer the title to himself. The bringing of an action of trover amounts to an action on the part of the owner to ratify that which was before illegal, and to make it legal. The title then passes completely as of the date of the illegal taking. Hence the rule that the measure of damages for conversion is the value of the property at the time of conversion, with interest. 2 Sedgwick on Damages (9th Ed.), § 493; 4 Sutherland Damages (3d Ed.), § 1109; 13 Cyc. p. 170; Cunningham v. Sugar, 9 N. M. 105 (49 Pac. 910). When, however, the property is returned to the owner, either voluntarily, or at his suit, or by purchase by him, an entirely different principle intervenes. In that case compensation to him would be measured, not by the value of the property attempted to be converted, but by the deterioration in value, if any, between the time of the illegal taking and the return to the owner, the reasonable value of its use, if it was of such a character as to be valuable for use, during the period of detention, costs and expenses in recovering the same, and perhaps other items in special circumstances. In this way the injured owner would be fully compensated, and this is always the object of the law.”
“The two principles above stated are necessarily antagonistic and can have no concurrent application in any given case. If an owner elects to ratify a coiiversion of his property, and thus effect a transfer of the title'thereon to the trespasser, he no longer owns the property, has no right to its use, and is damaged only to the extent, of. its value, and interest. If, on the other hand, he disavows the attempted conversion and recovers the property, it was his property all the time, and he may recover for the loss of its use, if •valuable for use, during the time of its detention. He cannot have both the value of the property at the time of the conversion and the value of its use. This would seem to be clear on reason, and is supported by authority.”

The court then reviews numerous cases'in support of its position, to which we invite attention. The author of the note referred to says:

“Practically all the courts seem to be in harmony with Martinez v. Vigil, in holding as a general proposition, that the value of the use of the converted property 'is not recoverable as damages, in an action .for conversion. Tatum v. Manning, 9 Ala. 144 (use of slave); McGowan v. Lynch, 151 Ala. 458, 44 South. 573 (use of mare) ; Blaisdell v. Scally, 84 Mich. 149 (use of piano in continuing musical education); Hinds v. Terry, Walk. (Miss.) 80 (use of slave); Funk v. Dillon, 21 Mo. 294 (services of slave); Dakin v. Elmore, 127 App. Div. 457, 111 N. Y. Supp. 519 (use of flue rollers, swedge, and caulking tools) ; Hofreiter v. Schwabland, 72 Wash. 314, 130 Pac. 364 (use of house) ; Polk’s Adm’r v. Allen, 19 Mo. 467 (hire of slave).
“The rule is based upon the fiction that the owner parts with his title at the time of the conversion, and that the measure of damages should, therefore, be the value of the property at the time of conversion, with interest thereon.”

We might pursue this reference to authorities, but it seems unnecessary to do so. We might add in passing that there is nothing in the instant case in any view to warrant the application of the rule contended for by the plaintiffs. The special damages claimed ■were not the proximate or natural result of the act of the defendant. The testimony was too speculative and conjectural to base a verdict upon. We are of the opinion that the trial court erred in its instruction above set forth, and that such error was prejudicial. It is very clear that the plaintiffs sustained no more damages by conversion of their property by defendant under a premature foreclosure sale than they would have sustained had the conversion been by an utter stranger. In either case the plaintiffs lose their property at the time of its conversion.

If the plaintiffs shall within 30 days after the filing of this opinion remit of said judgment all damages in excess of $397.45 the judgment below thus amended will be affirmed with?costs of this court to appellant; otherwise the judgment below will be reversed, and a new t^ial' granted, with costs to the appellant.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bis», and Sharpe, JJ., concurred.


text:
    HAGER v. REY.
    f. Vendor and Purchaser — Land Contracts — Duty to Prepare Contract.
    A clause in a memorandum agreement for the sale of a house and lot that “said second party agrees to buy the above described property on the terms and conditions named, and sign contract on or before one week from date," held, not to impose upon the buyer the duty to prepare and tender the contract.

      2. Same — Repudiation of Contract — Duty to Tender Contract —Idee Ceremony.
    Where the payment of money and the signing of a contract by plaintiff for the purchase of said premises were to be performed concurrently, on a certain date, and before the arrival of said date defendant had repudiated the agreement, she is in no position, on appeal, to urge that plaintiff should have performed the idle ceremony of presenting a contract to her for her signature.
    S. Same — Tender of Payment — Laches.
    In view of defendant’s repudiation of her agreement to sell, plaintiff was not guilty of laches in not malting payment, although it was not tendered by him until nearly a week after the agreed time.
    4. Specific Performance — Land Contracts — Waiver — Duty to Prepare Contract..
    In a suit by the buyer for specific performance of an agreement to sell a house and lot, plaintiff’s willingness to accept a contract drawn by defendant’s agent, which was not acceptable to her, held, not a waiver of his right to have a contract in pursuance of said agreement, nor did it relieve defendant from the obligations of her agreement to sell.
    5. Same — Not a Matter of Right — Discretion of Court — Equity.
    While specific performance of a contract for the sale of real estate is not a matter of right, but rests in the sound discretion of the court, where performance is arbitrarily refused, it should be granted, in the absence of some showing that to do so would be inequitable.
    Appeal from Ingham; Wiest (Howard), J.
    Submitted January 23, 1920.
    (Docket No. 71.)
    Decided February 27, 1920.
    Bill by Alton J. Hager against Carrie Rey for the specific performance of a land contract. Fronj. a decree for plaintiff, defendant appeals.
    Affirmed.

      Brown & Kelley, for plaintiff.

      L. B. Gardner, for defendant.
   Stone, J.

The bill of complaint herein was filed June 15,1918, to obtain from the defendant the specific performance of a written contract or agreement in the words and figures following:

"Memorandum of Agreement.
"This agreement, made and entered into this date, by and between Carrie Rey, herein called first party, and A. Hager, herein called second party:
“Witnesseth: Said first party hereby agrees to sell to the said second party, the property known as south 2% rods of the west five rods, more or less, of lot seven of block eighty in the city of Lansing, for the sum of $8,100, and to^accept in payment thereof the gum of $100 on the signing of -this agreement and the balance as follows:
“$900 on or before one week from date, the balance, $500, Nov. 25th, 1918, and $500 each 6 mo. thereafter until interest and principal is paid. Interest at 6%.
“Said first party further agrees to deliver papers showing a merchantable title, and furnish abstract and tax history posted to date and give possession on or before........19..
“Interest will not start until date of possession.
“Said second party agrees to buy the above described property on the terms and conditions named, and sign contract on or before one week from date.
“This contract is made to bind the heirs, executors, administrators, and assigns of the parties hereto and is subject to the consent of the owner.
“Lansing, Michigan, dated May 25, 1918.
“Carrie Rey,
“A. J. Hager.”

The steps leading up to the making of this agreement were substantially as follows: Alfred C. M.

Johnson, a real estate agent, had been making an effort to sell the property in question for the defendant for some time. He had advertised the same and had been active in the matter for at least six months. The plaintiff got in touch with Johnson through such advertisement. On Saturday, May 25,1918, the plaintiff and his wife, together with Johnson, met the defendant and her husband at the Rey home, that being the property in question. On this occasion, after an examination of the property, the terms of the sale were agreed upon, and Johnson drew the agreement in question, which is known as “Exhibit A” in the record. It was signed by both parties, and defendant received plaintiff’s check for $100 to apply on the sale. This check she retained, and it was cashed on June 1st. On or about the Thursday following May 25th, Johnson drew a land contract on what is known as the “Gleason Form,” and he testified that he presented it to the defendant for her signature and approval and left it with her; that he saw her again on the same day, and several times before Saturday, June 1st; that before that time she notified Johnson that she would never agree to sell her place for anything but the cash. At this point Johnson testified as follows:

“Q. Is that when she told you she would never agree to sell her place for anything but cash?
“A. Yes, sir. I notified Mr. Hager of what she said. I urged her to 'sign it and go on with the deal and notified Mr. Hager to that effect. This was before the Saturday night that I had the meeting at my office.
“Q. What did Mr. Hager say to you with reference to the matter of the contract?
“A. He told me to get the contract signed or drawn up on the lines of that agreement; that he wanted to go on with the deal.
“Q. And in other words, state whether or not Mr. Hager acquiesced in Mrs. Rey’s position?
“A. He did not. After I notified Mr. Hager about her claim, we met at my office Saturday night, June 1st. Mr. Hager came up Saturday night. Later Mr. and Mrs. Rey came into the office and we had quite a lengthy discussion. I tried to get them to go on with the deal in accordance with our agreement and Mrs. Rey refused to go on.
“Q. What did she say?
“A. Why she said she never agreed to sell the place in that way, that she always held out for the cash.
“Q. What did Mr. Hager say?
UA. He wanted to make that deal; he wanted to do it, but would do it only on the lines of the agreement that they had made.- Mrs. Rey did not at any time change, her position in respect to going on with this contract during that conversation, Saturday evening. Absolutely nothing was accomplished that night.”

The defendant testified that she notified Johnson by telephone Saturday morning that the land contract was not like the agreement. She testified on direct examination, among other things, as follows:

"Q. What was the reason you did not sign this agreement, this contract? (It being the contract prepared by Johnson.)
“A. It did not read like the memorandum.
“Q. In what way did it differ?
“A. In the agreement they were to pay me $8,100, $100 of which I received on the 25th day of May by check from Mr. Johnson; $900 they were to pay me one week from that day, the first of June.
“The Court: We have got the writing, there is no need of going any further with it.
“Q. Were those the reasons then, and the other reasons as stated in here of the difference why you did not sign this contract?
“A. Yes, sir, and the other reasons.”

On cross-examination the defendant also testified, referring to the proposed land contract as against the memorandum of agreement, so-called, as follows:

“Q. In what way was it different from the other agreement? What did you object to?
“A. I have stated that.
“The Court: You have not stated it on this question, he.wants you to state it again.
“A. All right. On the agreement it reads like this: I was to get $8,100; $100, which I received by check that day, $900 a week from that day, which was June 1st; $500 on the principal on the 25th day of November, and interest, and every six months after that until it was paid.
“Q. What did you tell Mr. Johnson when you talked with him at that meeting on Saturday, what did you tell him was wrong with this contract?
“A. The very thing I am telling you, that the interest—
“Q. You told Mr. Johnson all of that?
“A. Well, not probably all of that.”

It should be stated that on cross-examination the defendant denied having taken the position that she had not agreed to sell for anything but cash. In this she was contradicted both by the plaintiff and her agent, Johnson. Further on, in her cross-examination, she testified:

“Q. Outside of the matter of interest being paid every year, did you tell Mr. Hager of any other fault that you found with this land contract? * * *
“A. He went out.
“Q. Before he went out — I am not expecting you to talk to him after that. Before he went out, did you tell him of any other fault that you found with this land contract?
“A. They were not talking about it; he was over there talking with Johnson.
“The Court: Can’t you answer the question? Did you tell him any other reason than you have told us here?
“A. I did not.
“The Court: That is what we want to know.”

Some time during the middle of-the second week the defendant went to plaintiff-and tendered back the $100, being the first payment made by the Hager cheek which she received on May 25th.

The husband of defendant, who was present at the meeting on Saturday, June 1st, and also present on the occasion when she offered to return the $100 to the plaintiff, testified as follows:

“Q. Did your wife point out to Mr. Hager at that time what objection she had to the contract, if you know, or if you heard?
“A. Why, I don’t know as I can just say, only one thing was that it was not like the agreement, and that there was one point about the interest that was not right.
“Q. Isn’t it a fact then, Mr. Rey, that the only objection that she told him — told Mr. Hager about at that time was the matter of interest, isn’t that your recollection?
“A. Why, I would not say — I would not say whether there was anything—
“Q. Do you distinctly recall that she made some objection to the matter of interest — is that clear in your mind?
“A. She made some objection to that, yes, sir. Interest to be paid and the principal.
“Q. Do you recall, Mr. Rey, that she made any other objection to the land contract that Johnson had drawn?
“A.. I don’t think so, I would not say.”

Nine hundred dollars were tendered to the defendant on June 6th. The plaintiff had given Johnson the money on June 6th, and Johnson went to the Rey home and offered the defendant the money, informing her that the plaintiff desired to go on and complete the agreement. The money was refused. Johnson testified that Mrs. Rey said that she would never go on with the deal according to that agreement; that she wanted the cash; that there was no other objection made by her at that time.

The evidence is undisputed that the plaintiff has at all times been ready, able and willing to comply with the terms of the original contract. The plaintiff testified that when the tender of the $100 was made to him by defendant during the week following June 1st, that she stated that she would not carry out the agreement because she had never agreed to sell the house for anything but cash, and that she made no other or different claim at that time.

It appears very clearly that the defendant’s position with reference to the interest was a mistaken one. Under the terms of the memorandum agreement, specific performance of which is here prayed for, the $500 to be paid on November 25th and every six months thereafter was to be on account of both principal and interest, and not interest in addition to the $500. Some objection was made, but not very clearly, that there was in the contract tendered by Johnson the right to pay $500 or more on or before every six months until the interest and principal were paid; and that payment of the whole principal and interest unpaid might be paid on any payment date.

The learned trial court, after hearing all of the evidence, disposed of the case in the following language, after setting forth the substance of the agreement:

“Plaintiff paid the $100 as agreed, and tendered the $900, but did not make the tender within the time stipulated. Mr. Johnson, a real estate agent employed by defendant to sell her property, prepared a land contract and took it to defendant to sign, which she refused to do, claiming that it did not follow the agreement, in that it provided for the payment of $500 each six months, including interest, and permitted the whole sum to be paid at the time of paying any installment. Defendant has never executed a land contract in accordance with the agreement to do so, or tendered such a contract to plaintiff, and it is fair to say that she would not have executed such a contract had one been tendered her. Plaintiff has been ready, willing and able to carry out the executory agreement, and claims that defendant refused to do so because she now wants cash for her property. Under the executory agreement it is clear that the semiannual payments of $500 include interest.
“Having in mind the acts of the parties after the signing of the memorandum agreement and the claims made by defendant relative to its meaning, the defendant is in no position to set up the claim that time was of the essence of the agreement so as to relieve her from performance because the $900 was not tendered and the land contract executed within the time agreed. Time was not of the essence of this agreement for a contract. Solomon v. Schewitz, 185 Mich. 630. See Voltz v. Grummett, 49 Mich. 453.
“The land contract defendant refused to sign was prepared by the real estate agent in her employ, and if it did not follow the agreement that was not a sufficient reason for failure to have one prepared that did. Plaintiff’s statement that the contract prepared by defendant’s agent suited him, did not relieve defendant from the obligations of her executory contract nor does it show any insistence upon plaintiff’s part to exact terms contrary to the agreement. Plaintiff had a right to say that the land contract drawn by defendant’s agent suited him, without being charged with demanding something he was not entitled to have. The agreement on the part of plaintiff ‘to sign contract’ cannot be construed to mean that he should ‘prepare the contract,’ and besides, the defendant having refused to enter into a land contract in accordance with her agreement in reference to semiannual payments, is in no position now to urge that plaintiff should have performed the idle ceremony of presenting a contract to her for signature.
“Defendant has not been released from her agreement to sell, and. a decree for specific performance in accordance with the executory agreement is granted.”

A careful reading of the evidence satisfies us that the trial court’s findings upon the controlling questions of fact are supported by a clear preponderance of the evidence. A decree having been entered in pursuance of the foregoing opinion the defendant has appealed to this court.

Among other things it is claimed by appellant that the land contract provided for in the agreement was to be prepared, drawn and signed by plaintiff and presented to the defendant for her approval. We think counsel is mistaken in making this claim. The clause in the memorandum agreement was as follows:

“Said second party agrees to buy the above described property on the terms and conditions named, and sign contract on or before one week from date.”

It will be observed that the $900 was also to be paid on or before one week from the date. In our opinion it was not the duty of the plaintiff to prepare and tender this contract. At all events, it appears that before the time arrived for the making of this payment of $900 the defendant had repudiated the agreement — had refused to go on with the trade. The payment of $900, and the signing of the contract by the plaintiff, were acts to be performed simultaneously or concurrently. As bearing upon the general equities of the case the appellant has called our attention to the following cases: Brin v. Michalski, 188 Mich. 400; Frazer v. Hovey, 195 Mich. 160; Ogooshevitz v. Arnold, 197 Mich. 203. These cases are not, in our opinion, controlling here.

It is also claimed by counsel for appellant that time was of the essence of this agreement, and that the $900 not having been tendered within one week that the obligation of the defendant was at an end. The plaintiff tendered the $900 within a week of the time named for such payment in Exhibit A. The whole transaction covered a period of less than two weeks. The plaintiff was not guilty of any laches. What we have already said we think disposes of this question, namely, that before the time arrived for the payment of this money the defendant, without haying prepared a contract in pursuance of the memorandum agreement, refused to go on with the deal. In other words, the defendant first broke the agreement. It should be remembered, and not lost sight of, that this bill was filed for the specific performance of Exhibit A, above set forth, and not of some other contract. It is true, as the circuit judge said, that the plaintiff was willing to accept the contract as drawn by Johnson, but his willingness to accept that contract did not waive his right to have a' contract in pursuance of the agreement, when defendant refused to accept the Johnson contract; nor did it relieve the defendant from the obligations of her executory contract; “nor does it show an insistence upon plaintiff’s' part to exact terms contrary to the agreement. Plaintiff had a right to say that the land contract drawn by defendant’s agent suited him without being charged with demanding something he was not entitled to have.” The agreement on the part of the plaintiff cannot be construed to mean that he should prepare the contract. It very clearly appears here that the defendant refused to accept the interest terms as provided in the-memorandum agreement; and it would have been but an idle ceremony for the plaintiff to have prepared a contract for her signature.

Counsel for appellant claims that this is not a case where specific performance should be decreed, and quotes the language used in Solomon v. Schewitz, 185 Mich. 620, 631, as follows:

“However, it has frequently been held that the jurisdiction of a court of equity to decree specific performance of contracts is not a matter of right in the parties to be demanded ex debito justitise, but applications invoking this power of the court are addressed to its sound and reasonable discretion, and are granted or rejected according to the circumstances of each case. Specific performance is frequently refused, although the defense is not such as would warrant the rescission of the contract at the suit of the defendant.” Citing cases. • •

Adhering to the above language, it may also be said that specific performance of a contract for the purchase of real estate may not be arbitrarily refused, but in the exercise of a sound legal discretion should be granted, in the absence of some showing that to do so would be inequitable. We agree with the trial court in its conclusion that the equities of this case are with the plaintiff, and that specific performance should be here ordered.

The decree of the circuit court is therefore affirmed, with costs to the plaintiff.

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


text:
    STAMP v. STEELE.
    1. Deeds — Validity—Grantee Must Be Named.
    A deed wherein, no grantee is named is void; it must distinguish the grantee from the rest of the world.
    2. Ejectment — Courts—Equity—Trial.
    In ejectment to recover land conveyed to plaintiff by voluntary deed, of which he was dispossessed by the purchaser from the executor of the grantor’s estate, the court below was in error in holding that plaintiff could only enforce his rights in a court of equity.
    S. Deeds — Construction.
    A deed or other written instrument is to be construed so as to render it valid and effectual, rather than void.
    4. Same — Voluntary Deed — Validity.
    A grantee by voluntary deed has a good title as against the grantor and any subsequent grantee or mortgagee under him.
    5. Same — Description by Street Number.
    A description by street number in a voluntary deed, heldr sufficient.
    6. Same — Validity—Lack oe Seal — Statute.
    Under 8 Comp. Laws 1897, § 10417, in force when this deed was made, it was not invalid for want of a seal.
    7. Same — Words oe Conveyance — “Give”—“Gave.”
    The word “give” or “gave” in a voluntary deed, held, sufficient to pass title.
    8. Same — Sueeiciency.
    A conveyance in the following words: “Gave to my brother, S. L. Stamp, property at 91 and 95 E. Webster Avenue, Muskegon, Michigan, with contents therein, for his own,” properly signed, witnessed, and delivered, held, sufficient to pass title.
    9. Ejectment — Rights op Owner.
    The fact that after the death of grantor the property conveyed was included as assets of grantor’s estate, and sold as such, was not controlling of the rights of plaintiff.
    10. Same — Possession—Notice—Bona Fide Purchaser.
    Where plaintiff was in actual possession of the land conveyed to him, his possession was notice of his claim thereto, and( purchasers under such circumstances, held, not bona, fide purchasers.
    11. De^DS — ACKNOWLEDGMENT.
    Title may pass although the deed is not acknowledged.
    12. Same — Intent oe Grantor — Rights of Creditors.
    Land may be conveyed by any words which manifest that purpose, and for ány consideration the owner pleases, so that others having legal or equitable claims are not injured.
    13. Appeal and Error — Ejectment—Reversal—New Trial.
    On reversal of a judgment for defendant in ejectment, the case being here upon writ of error, the Supreme Court cannot enter judgment for plaintiff, but must send the case back for a new trial.
    Error to Muskegon; Vanderwerp (John), J.
    Submitted January 9, 1920.
    (Docket No. 50.)
    Decided February 27, 1920.
    Ejectment by Sidney L. Stamp against Frank N. Steele and others. Judgment for defendants. Plaintiff brings error.
    Reversed.

      F. E. Wetmore, for appellant.

      Cross, Foote & Sessions, for appellees.
   Stone, J.

This is an action of ejectment to recover possession of lot three and the west half of lot two, of block 185 of the revised map of the city of Muskegon, which the plaintiff claims in fee. It is-alleged that while the plaintiff was possessed of said lands, the defendants, Steele and Heethius, on October 1, 1917, unlawfully entered into possession thereof. The case was tried by the court without a jury.

The plaintiff claims the ownership of said premises, under and by virtue of an instrument in writing made by his sister, Alice Stamp, now deceased, which instrument is in the words and figures following:

“June 30, 1909.
“Gave to my brother, S. L. Stamp, property at 91 and 95 E. Webster avenue, Muskegon, Michigan, with contents therein, for his own.
(Signed) “Alice Stamp.
“Witnessed:
“Della Cliff,
“Chas. Mather.”

The principal and meritorious question in the case is as to the validity of this instrument to pass the title to the plaintiff. No question as to the rights of creditors is involved. The trial court made and filed findings of fact and conclusions of law in the case as follows:

“Findings of Fact.
“1. On, to wit, June 30, 1909, Alice Stamp, who is now deceased, was the owner of the property described in the declaration in this suit.
“2. On said date, the said Alice Stamp signed and delivered to plaintiff, a paper writing, in the words and figures following: (Here appears the copy of the instrument as above set forth.)
“That plaintiff claims title to said land by virtue of said paper writing.
“3. The will of said Alice Stamp, under the name of Alice Keene, was admitted to probate on to wit: September 1, 1914, and the property described in the declaration was included as assets of the estate in the inventory that was filed in said estate; that plaintiff made no claim in the probate court that he owned said property, but allowed this to be sold by the executor of the estate without making claim to the property in said court.
“4. On, to wit, March 8, 1916, the executor of the estate, under power of sale given in the will, conveyed said land by the ordinary executor’s deed to Mrs. Orla Swanson, and on, to wit, October 24, 1917, Orla Swanson conveyed the land by quitclaim deed to the defendants in this case, and the defendants claim title to the land by virtue of these deeds.
“5. Said defendants took possession of this property, and have held possession of the same since October 24, 1917.
“Conclusions of Law.
“1. Said paper writing given to the plaintiff was not an executed conveyance. It amounts to no more than a statement of fact. It is a mere certificate that this woman had given certain property to the plaintiff, but it is lacking in many particulars as a conveyance of land. It contains no words of grant and is too indefinite to vest title to any real estate in the plaintiff. If the statute of frauds does not render it void, it would at most, only create an equity enforceable in a court of equity, and would not affect the legal title to the land described in the declaration, and would not be the basis for a claim of title in this ejectment suit.
“I am, therefore, of the opinion that a judgment should be entered in this cause, of no cause of action. Let judgment be entered accordingly.”

Judgment was duly entered for the defendants. Elaborate exceptions were entered to the findings of fact and the conclusions of law, and amendments were proposed to the findings, which were refused, and exceptions duly filed. The plaintiff has brought error, and all of the questions discussed have been duly raised.

In this court it is claimed by the defendants that a case involving a writing similar to that in the instant case is that of First National Bank v. Phillpotts, 155 Mich. 331, and counsel rely largely on that case for an affirmance of the judgment here. In that case a bill was filed for the partition of real estate. The complainant had secured a judgment against Richard Phillpotts and others and had caused a levy to be made on the interests of Richard Phillpotts in the land. His interest was an undivided one-half, unless the writing hereinafter set forth conveyed this interest. On sheriff’s sale this undivided half interest was sold to complainant. In the partition suit the defendant made claim that, at the time of the levy, Richard Phillpotts had no interest in the land, but that he had conveyed it to his father. The only written evidence of this alleged agreement read as follows:

“Pinconning, April 5, 1904.
“This is to certify that I have sold all my claim and heirship on my father’s property, owned by him in the township of Pinconning, county of Bay, for the sum of ($2,000) two thousand dollars.
“Richard Phillpotts.”

The trial court sustained the agreement, and held that it barred Richard Phillpotts from participating in his father’s estate; but this court held that the trial court was in error. Justice Montgomery, speaMng for the court, said:

“The instrument referred' to, and quoted above, was clearly not an executed conveyance. Indeed in form it is not a contract at all, but a statement of fact. It is a certificate of what Richard Phillpotts had done. But it is wanting in many particulars as a grant or conveyance of land. It contains no words of grant; and, while on its face it relates to real estate, it describes no property and designates no grantee. Taking the most favorable view to the defendant, the most that can be said is that this instrument, supplemented by parol testimony, shows an incomplete inchoate agreement, and if the statute of frauds does not render it wholly void, it at most would create'an equity enforceable in a court of equity, and would not affect the legal title to the estate, which vested in Richard Phillpotts at the death of his father. The duty is, therefore, cast upon the defendant to invoke the aid of a court of equity» rather than upon the present complainant, as appears to have been assumed in the court below.”

A reference to the “conclusions of law,” in the instant case shows that the trial court based its decision upon the Phillpotts Case. We think that the cases' can be readily distinguished.

It will be observed that in the Phillpotts Case no grantee was named. This has been held fatal. The deed must distinguish the grantee from the rest of the world. Newton v. McKay, 29 Mich. 1; Barras v. Barras, 191 Mich. 473, and cases there cited; 13 Cyc. p. 538.

The instrument in the Pliillpotts Case was, for this reason, void under the statute of frauds. That case was really disposed of upon the ground that the instrument was, an unrecorded paper attempting to hold title against an execution creditor, which could not have been done even though the instrument had been a warranty deed.

We think the trial court was in error in holding that plaintiff could only enforce his rights in a court of equity. The plaintiff was out of possession and the defendants were in possession. See 3 Comp. Laws 1915, § 12302; Tuthill v. Katz, 163 Mich. 618, and cases cited.

In Anderson v. Baughman, 7 Mich. 69 (74 Am. Dec. 699), it was held that a deed or other written instrument is to be construed so as to render it valid and effectual, rather than void. This rule was approved in Morse v. Hewett, 28 Mich. 481.

It has been held by this court that a grantee by a voluntary deed has a good title as against the grantor, and any subsequent grantee or mortgagee under him. Page v. Kendrick, 10 Mich. 300; Keeler v. Ullrich, 32 Mich. 88; Warren v. Tobey, 32 Mich. 45; Wallace v. Harris, 32 Mich. 380; Gale v. Gould, 40 Mich. 515.

In support of the plaintiff’s claim that the instrument was sufficient to convey the fee in the property described the following cases are cited: Mull v. Smith, 132 Mich. 618; Huron Land Co. v. Robarge, 128 Mich. 686; Austin v. Dolbee, 101 Mich. 292.

Upon the trial it appears to have been conceded that the property described in the instrument as “property at 91 and 95 E. Webster Avenue,” is the same property as that described in the declaration. That a ,description by street number is sufficient see Kuschinsky v. Flanigan, 170 Mich. 245 (41 L. R. A. [N. S.] 430, Ann. Cas. 1914A, 1228); Nowicki v. Kopelczak, 195 Mich. 678; Meredith v. McCormick, 208 Mich. 563.

The statute in force when this instrument was made (3 Comp. Laws 1897, § 10417) provided that—

“no bond, deed of conveyance, or other contract in writing signed by any party, his agent or attorney, shall be deemed invalid for want of a seal, or scroll affixed thereto by such party.”

That the word “give” or “gave” in a voluntary deed is sufficient to pass title in fee see Pierson v. Armstrong, 1 Iowa, 282. This is a well considered case, and is clearly in point here. The court there said:

“The statement of the conveyance in the past and present tenses ‘has given’ and ‘does give,’ etc., is an insult to common sense; either tense is sufficient.”

Speaking of the words “have given and granted,” the court there said:

“Let us drop this word ‘grant’ then, as carrying only the incorporeal qualities of the estate* and take up the word ‘give.’ This at common law passed an inheritance, a fee, although it was appropriate to a fee tail. * * * But counsel mistake in thinking that the word, ‘give’ was not at common law, a sufficiently effective word, when not limited to an estate tail.”

The undisputed evidence in the instant case shows, and the trial court found as a fact, that on the date named Alice Stamp signed and delivered to plaintiff the instrument in question. The subscribing witness, Charles Mather, testified,- and his testimony was undisputed, as follows:

“Q. Did you see Alice Stamp write out and sign this paper?
“A. Yes, sir.
“Q. After she wrote this paper, and tore it out of the book, what did she do with it?
“A. She handed it to S. L. Stamp, plaintiff in this case, and said,' (Now you and' Nellie have got a home.’
“Q. Had you heard any talk prior to that time between Alice Stamp and your sister, or between Alice Stamp and S. L. Stamp, about her giving him these houses and lots on East Webster avenue?
“A. Yes, sir, I heard her say that if he and Nellie would stay there with her, that she would give him this property. * * *
“Q. After the making of this paper, Exhibit 1, did you ever have airy talk with Alice Stamp in regard to it?
“A. Yes, sir.
“Q. What did she tell you?
“A. She said that she had given them this property, so that they would have a home and something to take care of themselves with.”

After the delivery of this instrument the plaintiff and his family went into the possession of this property, and until after the death of Alice Stamp his title thereto was never questioned.

The fact that after the death of Alice Stamp this property was included as assets of her estate, and sold as such, was not controlling of the rights of the plaintiff. He was exercising his rights in the property, and was not called upon to follow the action of the probate court, even if he knew of such action, which does not appear by this record. The question whether the plaintiff’s testimony as to matters equally within the knowledge of Alice Stamp, deceased, was admissible is not before us. But eliminating all such testimony, there was sufficient evidence to sustain the plaintiff’s claim.

The defendants are not bona fide purchasers. The plaintiff was in actual possession and occupancy of the premises, and had been, according to the testimony of defendant Heethius (the only defendant sworn), for about two months before they bought the property. He testified as follows:

“Q. Then before you had the deed at all you knew that they were living there, didn’t you?
“A. They were living in the rear there, yes, sir.
“Q. You knew that for some time before you bought this property, didn’t you?
“A. Yes, about a month or two.
“Q. At least two months before you bought the property you knew they were living in there, didn’t you?
“A. Yes.”

The case is thus brought squarely within the general rule that actual possession of realty is notice to a purchaser of a claim thereto. McKee v. Wilcox, 11 Mich. 358; Disbrow v. Jones, Harr. Ch. 48; Woodward v. Clark, 15 Mich. 104; Russell v. Sweezey, 22 Mich. 235; Matteson v. Vaughn, 38 Mich. 373; Rood v. Chapin, Walk. Ch. 79; Godfrey v. Disbrow, Walk. Ch. 260.

Under the evidence, we are of the opinion that the written instrument was a deed of the fee of the premises described in the declaration. Inaccuracy of language should not be allowed to defeat the manifest intent of the parties. 13 Cyc. p. 606.

Title may pass without acknowledgment. Price v. Haynes, 37 Mich. 487; Fulton v. Priddy, 123 Mich. 298.

Alice Stamp was on June 30, 1909, the owner of these premises. She had the right to do with the property what she pleased; not only to sell it, but to give it away. Land may be conveyed by any words which manifest that purpose, and for any consideration the owner pleases, so that others having legal or equitable claims are not injured. No creditors are here complaining. The intent of the grantor is clear. In our opinion the trial court erred in its conclusions of law, and in entering a judgment for the defendants.

The plaintiff asks that we enter a judgment for him here. The case being here upon writ of error, we cannot .do that, but must send the case back for a new trial.

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

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


text:
    PEOPLE v. UTTER.
    1. Criminal Law — Appeal and Error — Plea of Guilty — Investigation by Circuit Judge — Record Binding Upon Supreme Court.
    The Supreme Court is bound by the record of sentence in a criminal case which shows upon its face compliance with the provisions of 3 Comp. Laws 1915, §' 15830, requiring an investigation by the circuit judge, after a plea of guilty has been entered, to satisfy himself that it was made freely and understandingly, although no detailed statement of any private or other interview with defendant after he changed his plea from not guilty to guilty is contained in the record.
    3. Same — Power of Court to Change Plea Before Judgment.
    “ At any time before sentence the plea of guilty may be changed by the court to one of not guilty.
    3. Same — Change of Plea — Jury Trial.
    Where, in a prosecution for murder, after a plea of guilty had been entered and an investigation by the circuit judge in compliance with 3 Comp. Laws 1915, § 15830, had been made, and before sentence, defendant protested that he was not guilty, that he did not understand that he had pleaded guilty, and demanded a jury trial, it was the duty of the court to enter a plea of not guilty and place him upon trial before a jury.

      4. Same — Erroneous Conviction — New Trial.
    Where the Supreme Court finds that the defendant in a criminal prosecution was erroneously convicted upon his plea of guilty, the case should go back to the circuit court for re-arraignment and new trial, it being the duty of the court, if possible, to rectify the error; the earlier rule that in such case he should be discharged having been overruled and abrogated in People v. Farrell, 146 Mich. 264.
    Error to Ionia; Davis (Frank D. M.), J.
    Submitted January 15, 1920.
    (Docket No. 102.)
    Decided February 27, 1920.
    Warren Utter was convicted of murder, and sentenced to imprisonment for life in the branch of the State prison at Marquette.
    Reversed.

      W. J. Barnard (Earl L. Barkans, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, and J. Clyde Watt, Prosecuting Attorney, for the people.
   Stone, J.

The defendant and appellant and James Edward Ward and Charles Ward were, on January 3, 1919, arrested on a warrant charging them with the murder of one John Smary, at the city of Ionia, in Ionia county. They were charged with having assaulted said Smary with a deadly weapon on the 25th day of November, 1918, at the city of Ionia aforesaid,. for the purpose of committing the crime of robbery upon the said John Smary, and that the said Smary died from the effects of said assault on the 29th day of November, 1918. All of the defendants waived an examination and were held to the circuit court for trial.

On January 4, 1919, an information was filed in the circuit court charging all of the defendants with murder in the manner above stated. On the same day Frank C. Miller, an attorney of that court, was, by order of the court, appointed amicus curies, in said cause, and as counsel for the defendants. Upon the arraignment of the defendants they all entered a plea of not guilty. Then the following occurred:

“The Court: Come into my room and I will talk with you.”

Thereupon the judge and James Edward Ward retired to the judge’s chambers for a time and then returned into court.

“The Court: Charles Ward and Warren Utter you may come into my room.”

Whereupon the judge, Charles Ward and Warren Utter retired to the judge’s chambers for a time, and then returned into court. Whereupon the following occurred:

“The Court: Charles Ward and Warren Utter after consultation with the court and F. C. Miller, who has been appointed to look after their interests, and discuss the matter freely, have informed the court that they want to change their plea of not guilty to a plea of guilty. Is that right?”

The defendant then answered: “Yes, sir.”

“The Court: You understand it fully now?
“Defendant: Yes, sir.
“The Court: That is all for you boys now. Mr. Miller thinks in behalf of these young men he should insist on the examination of the witnesses that will be offered here. We will proceed with the testimony that will have to be taken.”

Whereupon the court proceeded to take testimony of numerous witnesses to determine the degree of the crime. Among other witnesses called and sworn was this defendant. His testimony is very lengthy and went into the details of the robbery and the circumstances surrounding it. He testified that he did not strike the blow, and took, as he claimed, no active part in the assault. He testified, however, to a division of the money among the three defendants after the robbery, in which he stated that he received $45 in currency, and there was to be a further division when a $10 bill could be broken. The defendant, and also his codefendants, made a written statement on the 31st day of December, 1918, in the nature of a confession, which was introduced in evidence upon this examination. This testimony of the defendant is too lengthy to be here inserted. It is sufficient to say that during his examination the following occurred:

“Q. Any further statement you want to make now? Do you want to say anything further?
“A. Yes, sir.
“Q. State anything you wish now in connection with this.
“A. I would like to have this — like to state that — ■ I don’t know just how to word it.
“Q. Take your time, put it in your own language.
“A. I am not guilty, I want to — and trial, I would like one.
“Q. You say the statements made by Charles and Ed. Ward are not true, that is, as to the part you took in the transaction?
“A. No, sir, they are not.”
After the prosecuting attorney and Mr. Miller had completed the examination of the defendant the following examination occurred by the court, in the public examination:
“Q. After you came into court this morning, you and Charley had a talk with me, didn’t you?
“A. Yes, sir.
“Q> You stated to me you didn’t understand much that was read by the prosecuting attorney, it was so long?
“A. No, sir, I didn’t understand it.
“Q. I explained to you, didn’t I, in detail that you were charged with assaulting and robbing the old man, Smary, and that in making that assault and in committing the robbery that you killed him. I explained it to you substantially that way?
“A. This what explains — I didn’t get it through my head that way. You were talking to Charley.
“Q. I was talking to each one of you — didn’t I?
“A. Yes, sir.
“Q. Do you remember Charley making the statement there to me all about this transaction?
“A. I heard him, yes.
“Q. Did you make a statement to me of your part of the transaction?
“A. I don’t know whether I did or not.
“Q. And came back into court and plead guilty after making that statement talking to me.
“A. No, I don’t think I plead guilty.
tcQ. Did I call you to the desk and ask you if that was your desire to change your plea, in the presence of the officers of the court?
“A. I got it through my head, change your plea and change it the other way for them.
“Q. You had already plead not guilty?
“A. I plead not guilty, yes, sir.
“Q. After coming out from my room where I talked with you and Charley together, you requested that your plea be changed to that of guilty, didn’t you? You so announced it in open court? By myself you were asked if it was your desire, is that true, up in front of the desk there?
“A. When we spoke of changing my plea the way—
“Q. You were up in front of the desk?
“A. Yes, sir.
“Q. What did you say when I asked you if that was your wish?
“A. I didn’t say anything.
“Q. Do you remember my having it noted upon the books that was your desire, that you assented to it, said yes?'
“A. No, I don’t.
“Q. Do you remember what Charley’s statement was there to me in your presence this forenoon?
“A. No, I couldn’t tell you.
“Q: You don’t know whether it was the same, in substance, he has testified to on the stand?
‘‘A. No, I couldn’t swear to it.
“Q. Do you remember saying this to me: That you were willing to plead guilty to the robbery, that you didn’t intend to do any killing when you went there, do you remember saying that to me?
“A. No.
“Q. And I said it didn’t make any difference about whether you intended to kill him or not if you actually did in committing another crime, do you remember my telling you that?
“A. Yes, I remember your telling something about that, I told you I couldn’t get it through my head if you spoke that way.
“Q. Do you remember my asking you if you went up there with them, with these two young men?
“A. Yes, sir.
“Q. Do you remember my asking you if you knew he had a club with him?
“A. No.
“Q. You don’t?
“A. No, sir, I don’t.
. “Q. What did you say when I asked you if you went up there with them?
“A. I said I went up there with them; I can remember that much.
“Q. Did I ask you if you were present when this thing was done and you said you hid behind the bushes until it was over?
“A. No, I don’t remember it.
“Q. Don’t remember it?
“A. No, sir.
“Q. Didn’t I tell you at that time much depended upon your statement of the matter, that all I wanted was the truth from you two boys?
“A. Yes, sir, I remember you spoke of the truth, that you wanted the truth.
“Q. I explained the matter to you in all detail, didn’t I? Told you Mr. Miller had been appointed by the court to see you had fair play and justice here?
“A. Yes, I remember you told me about Miller.
“Q. And I called Mr. Miller in there to talk with you further?
“A. Yes, sir.
“Q. I went out of the room and left you to talk with him in regard to this matter. Did you state to him you desired to change your plea then, from not guilty to guilty?
“A. No.
“Q. You came out here and so announced to the court?
“A. He came out here something about changing their plea, but I didn’t get it through my head the words he spoke — want to change your plea — I supposed it was changed the other way.
“Q. You heard the words ‘not guilty,’ changed to guilty?
“No response.
“Q. You knew what not guilty was when you stood up before the desk?
“A. Yes, sir.-
“Q. Did you know what ‘guilty’ meant?
“A. Yes, sir.
“Q. Leaving that word ‘not’ off. You knew what is meant to change from one to the other, didn’t you? Did you understand what it was to change from not guilty to guilty?
“A. No, I don’t just understand.
“Q. Do you remember I said to you if you came in here and pleaded guilty, after the testimony was taken and I found your plea was made intelligently and according to the testimony, what the penalty would have to be and to be very careful about making any change in your plea, that the sentence would have to be for life and you must do so understanding^; do you remember that?
“A. No, I don’t remember that.
“That is all.”
Then the following occurred:
“The Court: Anything further to say, Mr. Utter, anything further to say about this matter, why sentence should not be pronounced now?
“Mr. Utter: Yes, sir.
“The Court: What more have you to say?
“Mr. Utter: I am not guilty. I want to hear (what) law is according to what Mr. Miller said, I would like to have a jury, or a trial or — ”

The court then proceeded to sentence the Wárds to imprisonment in the branch prison at Marquette for life; whereupon the court said:

_ ‘“In your ease, Mr. Utter, the case will stand continued until Monday morning (this being Saturday).”

Thereafter, and on Monday, the 6th day of January, the court proceeded to sentence this defendant. During the course of its remarks the court said, alluding to what had occurred before:

“The statement you then made to me was that the statements made by the other boys were true?
“Mr. Utter: I told you plainly and decidedly on the stand I didn’t know anything about it; I said that Saturday.
“The Court: I know you said that, but after these confessions it is rather late to take your statement back. The law imposes upon me a burden that has to be performed and the people of this county are entitled to the protection of the law. However painful or disagreeable it is for the judge, it is his duty, under the law, to see that society is protected, and it could not well be if self-confessed robbers and murderers should be allowed at large. There is only one way, if time should reveal you are innocent or that you were the victim of circumstances, and that is for an appeal to be made to the governor of this State. He has the right to either lessen your term or sentence or discharge you entirely by pardon. That is not within the power of the trial judge.”

The court thereupon proceeded to sentence the defendant to be confined in the branch prison at Marquette at hard labor for the term of his natural life, the court remarking, “that is all.”

Defendant (turns, facing the audience and with right hand uplifted) says:

“I am not guilty, people, of this crime that is held over me. The truth is before me, Lord and Heaven, I am not guilty of what has been put upon me, the Lord helping rae.”

The defendant is now serving his sentence. The sentence of the court, as entered on the record in the journal, bearing date January 6, 1919, entitled in the case, reads as follows:

“Warren Utter, the defendant, having been upon his voluntary plea of guilty duly convicted of the crime of murder in the first degree,'as appears from the record thereof, and having been, on motion of the prosecuting attorney, brought to the bar of the court for sentence, and having been asked by the court if he had anything to say why judgment should not be pronounced against him, and alleging no reason to the contrary, and the judge of said court having become satisfied, after such investigation as he deemed necessary for that purpose, respecting the nature of the case, and the circumstances of such plea, that the same was made freely, with full knowledge of the accusation against him, and without undue influence: Therefore, it is ordered and adjudged by the said ■court, now here, that the said Warren Utter be confined in the State House of Correction and Branch of the State Prison in the Upper Peninsula, Marquette, Michigan, at hard labor for the period of his life.”

The case is brought here by writ of error, and two errors are assigned:

(1) That the court erred in refusing to give the defendant, Warren Utter, a jury trial, as the record shows that the defendant did not plead guilty intelligently. That such plea was obtained from him without his being fully ■ advised as to his rights in the premises.
(2) The court erred in proceeding to sentence the defendant, Warren Utter, without giving him a trial, for the reason that the plea of guilty entered was unintelligently made, and defendant so stated in open court, that he was not guilty and demanded a trial by jury, and that the conviction should be set aside and the defendant remanded for trial.

It is the claim of counsel for appellant that the circuit court did not perform its duty in satisfying itself that the defendant’s plea of guilty was made freely, and with full knowledge of the nature of the accusation, after the appellant Utter had pleaded guilty, as required by section 15830, 3 Comp. Laws 1915, for the reason that the private conversation held between the court and defendant took place before the plea of guilty was interposed. In this claim counsel must have overlooked the record of the sentence of the court, above set forth, which shows, upon its face, a compliance with that term of the statute. In the face of this record, we cannot say that that portion of the statute was not complied with. It is true that there is in this record no detailed statement of any private or other interview with the defendant after the change of his plea from not guilty to guilty. We are, however, bound by the record of the sentence in that regard. The statute referred to reads as follows:

“(15830) Section 1. The People of the State of Michigan enact, That whenever any person shall plead guilty to an information filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied, after such investigation as he may deem necessary for that purpose, respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered, and order a trial of the issue thus formed.”

This provision of the statute has been the law of this State since 1875. Its provisions have been considered by this court many times, as will appear by the compiler’s note to this section.

Enough appears in this record to convince us that the defendant was a man of limited intelligence, and entirely ignorant of legal proceedings. The course pursued by the circuit judge, of the examination. of the defendant after he had entered his plea of not guilty, was at least unusual. After a careful reading of all the evidence produced before the court, and especially that of the examination of this defendant, We are in grave doubt whether the defendant understood the nature of his plea of guilty. Under oath he protested that he did not, and also when brought before the court for sentence, he protested that he was not guilty; that he did not understand that he had pleaded guilty, and he not only demanded, but appealed to the court for, a jury trial. This court said in O’Hara v. People, 41 Mich. 623:

“When a convicted person is brought up for sentence he has. rights still, and it is specially incumbent on the judge "to take care that they are fully observed and protected. No sort of pressure can be permitted to bring the party to forego any right or advantage however slight.”

The serious question in our minds is whether the duty of the court was fully performed under the last clause of the section above quoted, which reads as follows:

“And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered, and order a trial of the issue thus formed.”

We have no question that at any time before sentence the plea of guilty may be changed by the court to one of not guilty. Does this, record show that the plea of guilty was a voluntary one? In the light of this record, we are constrained to say that there is strong evidence that the- plea was involuntary, or at least not fujly understood by the defendant, and that the court had reason to doubt, the truth and validity of the plea of guilty.

What was the duty of the court under such circumstances? We think its duty was to have ordered a plea of not guilty entered and to have placed this man upon trial before a jury. If this was the duty of the court, it is. unnecessary to say that the failure to do so was prejudicial error. Counsel for appellant insist, in their brief, that if this court should hold that the rights of the defendant were not fully protected by the court, that the sentence of the lower court should not only be vacated, but that the defendant should be discharged; and as authority for this proposition they cite the cases of Edwards v. People, 39 Mich. 760; Clark v. People, 44 Mich. 308, and O’Hara, v. People, supra.

That such was the ruling of the court in those cases cannot be questioned; but we think that the rule laid down in those cases as to the discharge of the defendant is no longer authority in this State, and it has been substantially overruled and abrogated in the case of People v. Farrell, 146 Mich. 264. In that case the defendant was informed against for murder. On a trial in the circuit court he was convicted of manslaughter, and on an appeal to this court the judgment was reversed and a new trial granted. On the second trial in the circuit court the defendant was convicted of murder in the first degree and sentenced to imprisonment for life, and an appeal was again taken to this court. It was claimed on the appeal that the sentence was void, for the reason that the prior conviction for manslaughter operated as an acquittal on the charge of murder in the first and second degrees ;"and, the sentence being irregular, that the court had no authority to grant a new trial, or remand the case for a second sentence. Three of the Justices of this court there held that the judgment should be set aside and a new trial ordered. In that case (to an examination of which we invite attention), it was held that the sentence was erroneous, and that the case should be remanded to the trial court to sentence the defendant-for the crime of manslaughter.

We also invite attention to the case of People v. Scofield, 142 Mich. 221. In that case there was 'a reversal and a new trial ordered. Justice Hooker, in speaking for the court, said on page 224:

“Defendant’s counsel ask Ms discharge, upon the theory that he was erroneously sentenced, and for that reason the error is in the judgment and not in the conviction. See Elliott v. People, 13 Mich. 365; O’Neil v. People, 15 Mich. 275; Wilson v. People, 24 Mich. 410. TMs. conviction is not valid, and the sentence erroneous within the principle of those cases. If it be established that the conviction was of the offense charged in the information, as defendant’s counsel insist that it was, the sentence was one that the law1 authorizes, and it can only be avoided in this case by setting aside the conviction as erroneous. In such case, a new trial is to be ordered as in ordinary cases of reversal.”

In the instant case the error was in the conviction. If defendant had been rightfully convicted, the sentence was one that the law authorized. In other words, this court, in. the recent cases, has held that it will examine the record and ascertain where, and in what part of the proceedings the error occurred, and if possible rectify that error. If we are correct in what we have said/ the error here was in the conviction of the defendant upon his plea of guilty, and not in an excessive sentence. . The case should, therefore, in our judgment, go back to the circuit court for a re-arraignment of the defendant, and in case of a plea of not guilty, or of his standing mute, that a jury trial be ordered in the case. See, also, In re Vitali, 153 Mich. 514. The conviction of the defendant is therefore set aside.

The judgment'of the court below is reversed, and a new trial granted. The defendant will be remanded to the custody of the sheriff of Ionia county to be dealt with as the law directs.

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