text:
    BRYANT v. KINYON.
    1. Bankruptcy—Provable Debts — Discharge — Fraud — Fiduciary Capacity.
    Where plaintiff sold wood to defendant under a contract retaining title until payment of the purchase price, and defendant sold the wood and appropriated'the proceeds, his liability therefor was a debt provable against his estate in bankruptcy, under section 63 of the bankrupt act of 1898, as a debt founded on contract, express or implied, and was not one “created by his fraud, embezzlement, or misappropriation while acting in a fiduciary capacity,” within section 17, so as to prevent a discharge in bankruptcy from effecting his release from the liability.
    2. Same—Capias—Release op Sureties.
    Where defendant in a suit commenced by capias was re leased from the liability sought to be enforced by a discharge in bankruptcy subsequent to the commencement of suit, the sureties on his bail bond were likewise released, since their liability was contingent on a judgment’s being rendered against the principal.
    3. Same—Pleading.
    In pleading a discharge in bankruptcy, it is unnecessary to set up all of the facts essential to the jurisdiction of the bankruptcy court.
    Error to Hillsdale; Chester, J.
    Submitted March 5, 1901.
    Decided June 17, 1901.
    Trover by Ira N. Bryant against Daniel B. Kinyon. From a judgment for plaintiff, defendant brings error.
    Beversed.

      F. A. Lyon, for appellant.

      Grant Felloios and B. D. Chandler, for appellee.
   Hooker, J.

The parties made a written contract, whereby the plaintiff agreed to sell and deliver to the defendant 2,400 cords of wood at $1.50 per cord, to be paid as follows: “As fast as one hundred cords of said wood shall be sold [i. e., by Kinyon], he shall pay to Bryant one hundred and fifty dollars in cash therefor.” It further provided that the title to the wood should remain in Bryant, with all rights of possession, until the same should be fully paid for, which should be within three years; and that, “as earnest money,” Kinyon should convey to Bryant a house and lot designated, and upon receipt of the deed Bryant should indorse upon the contract $500. Two thousand one hundred and eleven cords of wood were delivered before April 15, 1896. In June, 1896, the plaintiff brought assumpsit against the defendant for the price of the wood sold by the defendant up to that time, and recovered a judgment for $640 and interest. After the bringing of the action in assumpsit, defendant continued to sell the wood, and there is testimony tending to show that he sold 512 cords after that time. On May 17, 1897, this action was begun by capias. The declaration contains three counts in trover; the first being for an alleged conversion of 2,400 cords of wood; the second and third for the conversion of $2,400 in money. The third alleges the money to have been received by the defendant from the sale of the wood delivered under this contract. The defendant pleaded the general issue, and, after the case had been once tried and reversed by this court, added a notice that, after the commencement of this action, he received his final discharge in bankruptcy, and was, together with his' sureties on the capias bond, thereby released from any further liability on this claim. The plaintiff recovered a verdict and judgment, and the defendant has brought error.

We consider the last question mentioned conclusive of the case. It is maintained by the defendant that the plaintiff’s claim for the conversion of the property constituted a debt provable against the bankrupt, and section 63’ of the bankrupt act of 1898 (30 U. S. Stat. chap. 541) sustains this contention. It provides that:

“Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by * * * an instrument in writing; * * * (4) founded upon * * * a contract, express or implied.”

That unliquidated claims such as this may be proved against a bankrupt’s estate admits of no doubt. Subdivision b of section 63 expressly recognizes the right, and there are many cases arising under earlier laws where they have been proven.

It does not necessarily follow that a discharge in bankruptcy releases a bankrupt from all of his provable debts. He is released only from those which the law provides that he shall be released from. Section 17 of the act of' 1898 excepts all provable debts “created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity;” and it seems to be agreed by counsel that the defendant is released by his discharge unless this claim is within this exception. Counsel for the plaintiff cite some cases which are said to sustain the claim that this conversion falls within the exception. Thus, in Matteson v. Kellogg, 15 Ill. 547, it was held that one receiving money to be used in the purchase of certain land for the owner of the money acted in a fiduciary capacity, and would not be discharged from a claim based on his misappropriation of the money. The case of Herman v. Lynch, 26 Kan. 435 (40 Am. Rep. 320), was similar. The defendant received money for the purpose of buying exchange, and remitting it to plaintiff’s creditors. Instead of doing so, he converted the money, and it was held that he was not released by a discharge in bankruptcy. In Fulton v. Hammond, (1882) 11 Fed. 291, action was brought against one who had taken a note for collection, and appropriated the proceeds to his own use. Discharge in bankruptcy was held no defense. In each of these cases there was a clear fiduciary relation. The defendant was an agent, and embezzled the funds of his principal. There are, however, two Vermont cases which are in point. In the case of Johnson v. Worden, 47 Vt. 457, decided in 1874, plaintiff brought trover for a yoke of oxen, which he sold conditionally to the defendant, reserving the title until fully paid for. The latter exchanged the cattle for some stags, and never paid for the oxen. Bankruptcy proceedings followed, and plaintiff proved his claim for a balance due upon the oxen, and the defendant was discharged. The court refused to instruct the jury that the discharge should defeat plaintiff’s action, and the judgment was affirmed; the court holding that, by the contract, plaintiff had a claim for the price, and a right to the oxen until the debt should be paid, and that, by proving his debt, he was pursuing one ' of his remedies, which he could do without losing the other. No authority was cited. In Darling v. Woodward, (1881) 54 Vt. 101, plaintiff had a lien on sheep, and brought trover for their conversion. A discharge in bankruptcy being pleaded, the court held that the debt was created by fraud, and the plaintiff was allowed to recover.

Upon the other hand, we find the leading case of Chapman v. Forsyth, reported in 1844 in 2 How. 202. It was there held that a factor who converted a balance did not owe a “fiduciary debt.” It was said:

“ The second point is whether a factor, who retains the money of his principal, is a fiduciary debtor within the act. If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies, and, indeed, all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the acti The cases enumerated, ‘ the defalcation of a public officer,’ ‘ excutor,’ ‘administratoi’,’ ‘guardian,’or ‘trustee,’ are not cases of implied, but special, trusts, and the ‘ other fiduciary capacity ’ mentioned must mean the same class of trusts'. The act speaks of technical trusts, and not those- which the law implies from the contract. A factor is not, therefore, within the act.”

In Campbell v. Perkins, (1853) 8 N. Y. 439, it was held that a claim for unliquidated damages founded on a contract of storage was a debt subject to the bankruptcy act, though recovery was sought in an action of tort, and the bankrupt was released by the discharge. In Cronan v. Cotting, (1870) 104 Mass. 245 (6 Am. Rep. 232), it was held that the delivery of bills of exchange to defendant for collection, for application upon defendant’s claim against the plaintiff, and payment of the balance of the proceeds to plaintiff, did not constitute a fiduciary relation, and it was said that to so hold “would require an interpretation so broad that almost all pecuniary obligations, especially those implied by law, would be included and the court added, “We are inclined to the opinion that the phrase implies a fiduciary relation existing previously to, or independently of, the particular transaction from which the debt arises.” In Neal v. Clark, (1877) 95 U. S. 704, it was held that the word “fraud,” as used in the bankruptcy law of 1867, means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality. In Ames v. Moir, 138 U. S. 306 (11 Sup. Ct. 311), the defendant availed himself of a right under an executory contract to call for wines, when he knew he was insolvent, with intent to get possession of them, and convert them to his own use, without paying for them. The jury was allowed to find that he was guilty of fraud in fact, involving moral turpitude or intentional wrong, in the creation of the debt. In Upshur v. Briscoe, 138 U. S. 365 (11 Sup. Ct. 313), this question is discussed, and the doctrine of Cronan v. Cotting approved; i. ■ e., that the phrase implies a fiduciary relation existing previously to, or independently of, the particular transaction out of which the debt arises. See, also, Hennequin v. Clews, 111 U. S. 676 (4 Sup. Ct. 576); Coll. Bankr. (3d Ed.) p. 203.

It is contended, however, that, as the defendant was. arrested upon a capias, and gave ’bail, the surety is not discharged, and that a judgment is necessary, and should be permitted, to fix his liability. We think this position is not tenable. The responsibility of the surety is limited by a strict construction of his bond. There can be no liability unless a judgment is procured in the action against the principal, and that can never be, for the reason that he. is released by his discharge. Com. v. Huber, 3 Clark, 334; Kirby v. Garrison, 1 Zab. 179; Barber v. Rodgers, 71 Pa. St. 362; Coll. Bankr. (3d Ed.) p. 185.

Counsel for the plaintiff assert that the discharge was not sufficiently pleaded to permit defendant to go to the. jury on that question, or to call for an instruction by the court, in that the notice of the discharge did not set up. facts necessary to give the bankruptcy court jurisdiction,, including an allegation of residence of the bankrupt in the. district where said court was situate. The jurisdiction of courts of bankruptcy need not necessarily appear upon the face of the proceedings. See Coll. Bankr. (3d Ed.) p. 8, and cases there cited. In pleading judgments of domestic courts of record, the jurisdiction of the court need not be affirmatively shown by stating the facts upon which it attached. See 12 Am. & Eng. Enc. Law, 149/, and note.

Under the proofs the court should have directed a verdict for the defendant.

We think it unnecessary to discuss the other questions raised, most, if not all, of which are covered by our former opinion in this case, reported in 123 Mich. 151 (81 N. W. 1093).

The judgment is reversed, and a hew trial ordered.

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


source: Caselaw Access Project

author: Hooker, J. Montgomery, C. J.

license: Public Domain

text:
    WYANT v. CROUSE.
    Trespass—Consequential Damages—Pleading—Negligence.
    A declaration, purporting to be in case, alleged that defendant wrongfully broke and entered plaintiffs’ blacksmith shop, occupied by their tenant, and started a fire in the forge, which, by reason of defendant’s negligence, escaped, destroying the shop, some adjoining buildings, and certain personal property. The evidence tended to support the averments of the declaration, with the exception that there was nothing to show a want of ordinary care on the part of defendant in managing the fire. Held :

    (1) That, the damages being consequential in nature, an action on the case would lie therefor.
    (2) That the declaration sounded in case, and not in trespass guare clausum.

    (3) That, defendant’s entry being wrongful, he was liable for the resulting damages, irrespective of the question of negligence. (Montgomery, C. J., dissenting, on the ground that the trespass was committed, not against plaintiffs, but against their tenant.)

      Error to Cass; Smith, J.
    Submitted March 7, 1901.
    Decided June 17, 1901.
    Case by William B. Wyant and Judith A. Wyant against George Crouse to recover damages for the destruction of property by fire. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Be ver sed.

      M. L. Howell, for appellants.

      Cassius M. Hby, for appellee.
   Hooker, J.

The plaintiffs commenced an action by ■declaration against the defendant to recover damages for the destruction of a blacksmith shop and other property by fire. The declaration stated that he wrongfully broke into the shop, and started a fire in the forge, and the undisputed proof shows that he did so. The declaration purports to be in case, and, after alleging the wrongful entry and building of a fire, alleges negligence in managing it, and a consequent fire a short time after defendant left the shop. It seems to be conceded that, if this was to be treated as a count in trespass quare clausum, the action was barred by the statute of limitations; and the court, acting upon the theory that it was case, directed a verdict, upon the ground that no negligence was shown.

The testimony shows that the defendant was a blacksmith, who sometimes worked in the shop for plaintiffs’ son, who occupied the shop as plaintiffs’ tenant; that on this occasion he went to the shop to sharpen some shoes, built a fire in the forge, did his work, and went away. It is in evidence that the wind was blowing, and that, about 10 minutes after he went away, the shop was discovered to be on fire in the southwest corner of the building, the forge being in the northeast corner, and the flames coming out from the roof. The only fire on the floor was that which dropped from above. The forge was connected with the chimney by an old stove pipe, that went up through a ceiling of boards. The defendant stated, the day after the fire, that when he left the shop there was apparently no fire around, but there were some shavings lying around, and he did not know but a spark or piece of hot iron had dropped in the shavings, and that when he went there he found no fire in the shop. The court seems to have considered the wrongful entry as out of the case, and the defendant liable only for a want of ordinary care, after building the fire, in looking after it and keeping it from doing damage. The plaintiffs’ counsel insists that the act was wrongful, and might be shown to be so, though it involved a trespass, and' that he was liable for' the consequences.

We agree with the circuit judge that there is no proof' tending to show an absence of ordinary care, but there certainly is proof tending to show that the only fire on the premises came from that started by the defendant. Hence the case is reduced to the question whether trespass quare clausum is the only remedy for an injury resulting to real estate and personal property inadvertently" destroyed by a trespasser. Defendant’s act, if a trespass, consisted in breaking, entering, and building a fire in the shop. He would have been liable for that in an action of trespass. After he left, the fire burned the shop and adjoining buildings and personal property. There is no doubt that as to the latter, i. e., the personal property, the plaintiffs might sue in case, whether they could recover in trespass or not. 3 Comp. Laws, § 10400. It is clear that they could not recover in case for the direct damage necessarily done by his trespass to the land. Wood v. Railroad Co., 81 Mich. 358 (45 N. W. 980); Haines v. Beach, 90 Mich. 563 (51 N. W. 644). They are not attempting to do so. No claim is made for damages for the mere breaking, entry, or use of the forge, but only for the damage done by the fire.

When one trespasses on land, he is liable for the direct injury to the freehold, and the consequences naturally to be expected arising therefrom, in an action of trespass. Attendant acts, such as assault and battery, slander, injury to personal property, etc., may be shown, if alleged, by way of explaining the trespass, and in aggravation thereof, in all States where exemplary damages are recoverable, and doubtless under our own somewhat modified rule relating to exemplary damages. But in such case the amount of damages is not necessarily to be measured by the injury to the person, the reputation, or the personal property, damages for which may, instead of being sought by way of aggravation, be recovered in suitable actions. Thayer v. Sherlock, 4 Mich. 173; Roberts v. Druillard, 123 Mich. 286 (82 N. W. 49). In the former case it was held that such claims, being specifically alleged, had been recovered for as separate causes of action, and not by way, of aggravation. Tiff. Justice’s Guide, 807.

If consequential damages may be recovered in any case of trespass quare clausum, it seems obvious that in some they cannot, and that case should be resorted to. There is an intimation in the case of Barry v. Peterson, 48 Mich. 264 (12 N. W. 181), that case is the proper remedy in such instances- In that case there was a direct trespass, snow being thrown on plaintiff’s land, between the houses of plaintiff and defendant, whereby plaintiff’s house was injured through its melting. A recovery was had in case. There was more reason for anticipating injury in that case than in the one before us. In Ives v. Williams, 53 Mich. 636 (19 N. W. 562), the propriety of declaring in case for consequential injuries is recognized. Several counts in case were joined to one in trespass. The court said that, in the absence of an allegation of consequential damages, it must be considered a count in trespass, and therefore a misjoinder. Again, in Wood v. Railroad Co., 81 Mich. 363 (45 N. W. 980), Mr. Justice Champlin appears to have recognized that, when damages are consequential, case will lie, for he said:

“ The injury caused by the trespass in this case was no more indirect and consequential than such as arises in every case of trespass caused by forcible entry and direct injury to the plaintiff’s possession and freehold.”

In the cases of Chandler v. Allison, 10 Mich. 460, and Allison v. Chandler, 11 Mich. 542, the injury was not consequential, but a direct and natural consequence, to be expected.

In the case before us, the defendant intended no such injury, nor did he any act which can be said to have given reason for expecting the consequences. It was a fortuitous consequence of his act, entirely unforeseen. The actual trespass was of little significance compared with this consequential injury. If a wrong-doer, he would be responsible for the damage, if it resulted from the building of a fire by him, regardless of the degree of care used. Hence the propriety of setting up his wrongful entry, which, though proper in a declaration in trespass, does not necessarily impress that character upon this declaration, which expressly states that it is in case, and describes a consequential injury, following and growing out of acts constituting a trespass.

The following authorities, taken from 36 Am. & Eng. Ene. Law, p. 706, will show the trend of authority upon this subject: Gates v. Miles, 3 Conn. 64; Barnes v. Hurd, 11 Mass. 57; Waldron v. Hopper, 1 N. J. Law, 339; Case v. Mark, 2 Ohio, 169; Taylor v. Rainbow, 2 Hen. & M. 423; Jordan v. Wyatt, 4 Grat. 151 (47 Am. Dec. 730); Branscomb v. Bridges, 1 Barn. & C. 145; Smith v. Goodwin, 2 Nev. & M. 114; Frankenthal v. Camp, 55 Ill. 169; Schuer v. Feeder, 7 Blackf. 342; Johnson v. Castleman, 2 Dana, 377; Dalton v. Favour, 3 N. H. 465; Gilson v. Fisk, 8 N. H. 404; Blin v. Campbell, 14 Johns. 433; Percival v. Hickey, 18 Johns. 357 (9 Am. Dec. 210); McAllister v. Hammond, 6 Cow. 342; Brennan v. Carpenter, 1 R. I. 474; Howard v. Tyler, 46 Vt. 683; Claflin v. Wilcox, 18 Vt. 605; Waterman v. Hall, 17 Vt. 138 (43 Am. Dec. 484). Most of these cases relate to trespass to persons or personal property, but the analogy is close. The case of Jordan v. Wyatt, supra, contains a lengthy discussion of the distinction between direct and consequential injuries:

The liability of the defendant is based upon a wrongful act, and the nature of the act, and not the consequences, determines his liability. /He was engaged in an unlawful act, and therefore was liable for all of the consequences, indirect and consequential as well as direct, and there is no occasion to discuss the degree of his negligence in permitting the shop to burn, if the fire was caused by the fire he builded. This accountability for the consequences is not affected by the form of action. •,

The judgment is reversed, and a new trial ordered. *

Moore, Long, and Grant, JJ., concurred wiííi Hooker, J.

Montgomery, C. J.

(dissenting). The trespass was not committed against the plaintiffs, but against their tenant. The subsequent fire was not, particularly as to the plainiffs’ adjoining property, a wrong against plaintiffs.


author: Hooker, J.

text:
    NOBLE v. McKEITH.
    1. Fraudulent Conveyances — Assignment of Claim — Rights of Assignee.
    The assignment of a claim carries with, it the right of the assignor to attack a conveyance by the debtor as fraudulent.
    3. Same—Homestead—Attachment Lien.
    Where land attached as conveyed in fraud of creditors is reconveyed to the debtor, his subsequent occupancy will not enable him to set up a homestead exemption as against the attachment creditor.
    3. Same—Evidence—Appeal.
    On a review of the evidence, held, that a conveyance by a debtor was made with intent to hinder and defraud his creditors.

      Appeal from Sanilac; Beach, J.
    Submitted March 8, 1901.
    Decided June 17, 1901.
    Bill by Bostwick R. Noble and James L. Benedict against John D. McKeith and Duncan A. McKeith in aid of execution. From a decree for defendants under their prayer for affirmative relief, complainants appeal.
    Reversed.

      Drake & Rapley (Bacon & Yerkes, of counsel), for complainants.

      W. H. Burgess, for defendants.
   Hooker, J.

In the year 1892 John D. McKeith was a merchant doing business at Tale, in this State, and the owner of about 79 acres of land and other property. He owed some debts. On the 6th day of December, 1892, he and his wife executed and delivered a deed of the 79 acres to his son, Duncan A. McKeith. The consideration mentioned in the deed was $1,700. Complainants claim that there was no actual consideration. The only testimony upon the subject is that of Duncan and John McKeith, who say that the deed was given in consideration of a promise by Duncan to work for his father iñ the store for two years, and that he worked there some over a year, and until the father made an assignment for the benefit of' his creditors. The deed was recorded on January 18, 1894. On the 10th day of January, 1894, John D. McKeith made an assignment for the benefit of his creditors. The stock was purchased by the complainants for $1,379.71, of which, after taking out exemptions, there remained $1,120, less assignee’s expenses' to be paid upon an indebtedness of about $4,400. The stock was bought from complainants by Duncan A. McKeith, at the suggestion of complainants, to whom he gave a mortgage for the purchase price, and he continued the business, all in conformity-to a prearranged plan between them. On May 7, 1894, Duncan A. McKeith conveyed the 79 acres of land to his mother. No consideration passed for this deed. In answer to the question, ‘£ What is the reason you did not deed it back to your father ? ” he answered, £ £ Because I deeded it to her for safe-keeping. Q. You had no other reason for deeding it to her ? A. None that it is necessary to state. I never paid my father anything as the balance of the consideration due on that deed.” It was recorded before delivery, on the same day. On June 7th the complainants, who had taken assignments of certain unpaid claims against John D. McKeith, began an attachment case against him, and attached the 79 acres, upon the ground that the transfers were made with intent to hinder and defraud the creditors of John D. McKeith. A judgment for $577.86 and costs was rendered on March 17, 1899, and execution was levied on April 4, 1899. On January 19, 1895, Mrs. McKeith deeded this land back to her son, Duncan A. McKeith, and this deed was recorded on May 7, 1898. On January 3, 1898, Duncan A. McKeith deeded 40 acres of the land to his father, John D. McKeith. Mrs. McKeith died in 1899. On May 25, 1899, complainants filed the bill in this cause in aid of execution, to which defendants answered, praying, as affirmative relief, that the cloud caused by-the levy be removed from the land. The bill was dismissed, and relief as prayed was granted defendants. Complainants appealed.

The defendants contend that the complainants are in no position to obtain the relief sought, for the reason that they became owners of the claims after the alleged fraudulent transfer was made, and a cause of action for fraud is not assignable. The contention is sufficiently answered by the citation of the cases of Sweet v. Converse, 88 Mich. 1 (49 N. W. 899), and Howd v. Breckenridge, 97 Mich. 65 (56 N. W. 221).

It is also claimed that John D. McKeith has a homestead interest in a portion of this land; but, as the attachment was levied long before he acquired the title, the levy has precedence' of such claim. Avery v. Stephens, 48 Mich. 246 (12 N. W. 211); Davis Sewing-Machine Co. v. Whitney, 61 Mich. 518 (28 N. W. 674).

It is contended that the complainants are not entitled to relief for the further reason that the conveyance to Duncan A. McKeith was not only based upon a valuable consideration, but was made at a time when his father was solvent, and without an intention to hinder, delay, or defraud creditors. The learned circuit judge filed no opinion, and we are not advised of the view taken by him upon these questions. To us the record affords convincing evidence that the father was not solvent after conveying this property, and that it was conveyed for the purpose charged, with the knowledge and concurrence of Duncan A. McKeith.

, The decree of the circuit court is reversed, and a decree will be entered for the complainants as prayed, with costs of both courts,

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


author: Gbant, J. Montgomery, C. J.

text:
    SOWLES v. WILCOX.
    Mortgages—Absolute Conveyance—Conditional Sale.
    Where land, mortgaged to indemnify a surety on an appeal bond is afterwards deeded to him by absolute conveyance, with the understanding that, if necessary, it may be sold to pay the judgment debt,'but that the mortgagor shall have the right to pay it himself if able, or to defeat it by legal proceedings, the conveyance operates as a mortgage, and not as a conditional sale. Grant, J., dissenting.
    Appeal from Eaton; Smith, J.
    Submitted April 2, 1901.
    Decided June 17, 1901.
    Bill by Mary A. Sowles against Lucius H. Wilcox, George Wilcox, Alvira Wilcox, Norman Sowles, and George N, Berry to declare a conveyance absolute in form to be a mortgage, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Reversed.

      W. A. Coutts, Huggett & Dann, and Cahill & Wood, for complainant.

      Powers & Stine, for defendants Wilcox.
   Gbant, J.

A suit was brought against Nathaniel Sowles, the husband of complainant, and judgment obtained against him for $3,059.66 and $237.40 costs of suit. While that suit was pending, Mr. Sowles deeded the land here in controversy—a farm consisting of 144& acres—to his wife, the complainant, and a farm of 80 acres to his son, defendant Norman Sowles. These deeds were without consideration, and were made for the purpose of preventing Mr. Sowles’ creditors from enforcing their claims. That case was brought to this court, and affirmed. 105 Mich. 31 (62 N. W. 1000). Mr. Sowles requested the defendant Lucius H. Wilcox and one Woolpert to sign a bond with him on appeal to this court, and thus prevent the sale of the land upon execution, which had been issued against Mr. Sowles, and under which a levy had been made. To secure Messrs. Wilcox and Woolpert, complainant executed a mortgage upon this farm to them as security. A motion for rehearing was made and denied. Mr. Sowles refused to pay the judgment, and suit was brought upon the bond. That suit went against him, and he again appealed to this court, and the judgment was affirmed. 109 Mich. 481 (67 N. W. 530). Judgment was rendered upon ‘the bond against Sowles, Wilcox, and Woolpert for $3,848.35 damages, and costs, $44.20. The costs in this court were $6?. Both of these suits were carried on at the request of Mr. Sowles, with the approval of the complainant.

Another suit was instituted by one Shoemaker in the circuit court for the county of Kent, in chancery, against Mr. Boyer and 'his attorneys, to establish a claim to a portion of the jqdgment. Mr. Sowles, Wilcox, and Woolpert were made defendants. In that suit another attempt was made to defeat the judgment. Mr. Sowles filed a cross-bill, charging that the judgment was obtained by fraud. Upon the hearing the bill was dismissed. Meanwhile execution had been levied upon the judgments in the circuit court and this court, and the lands of Sowles, Wilcox, and Woolpert levied upon, and sold at execution sale. After the affirmance of the first case in this court, complainant executed a warranty deed of the farm to Wilcox and Woolpert, the consideration mentioned therein being $4,000, which was the penal sum of the bond. Neither Mr. Sowles nor Wilcox and Woolpert redeemed from these sales, and, shortly before the time of redemption expired, complainant surrendered possession of this farm to Wilcox and Woolpert; and Norman Sowles executed a deed of the 80 to them on the same date, April 26, 1897. Wilcox and Woolpert claimed that the farm of the complainant was not sufficient to pay the judgment, interest, and costs. Subsequently Mr. Wilcox paid Mr. Woolpert $175, and took from him a quitclaim deed of the two farms. This $175 was claimed to be for expenses which Mr. Woolpert had paid out for Mr. Sowles in the various suits. Wilcox then borrowed of defendant Berry $4,500, the amount necessary to redeem, gave him a mortgage upon this farm, and paid the amount in satisfaction of the judgments. Wilcox soon after sold the 80 acres for $1,500, to one Hill, who was conceded to be an innocent purchaser, and about the same time he sold his own farm of 111 acres, on which he realized $3,000, which was paid on the Berry mortgage.

Wilcox, in 1897, took possession of the farm, discharged the mortgage of record, has been in possession since, paid the taxes, and made improvements. Neither complainant nor her husband made a claim to him that the deed in this case was executed as additional security, or offered to redeem, until this bill was filed, November 16, 1899,—two years.and six months after possession had been surrendered by complainant to Wilcox. The bill alleges that the deed was a mortgage,- prays for an accounting to determine the amount due, and for leave to redeem. The case was heard in open court, and the bill dismissed.

Complainant claims that the deed merely operated to change the form of the security from that of an ordinary indemnity mortgage to that of a deed absolute upon its face, and invokes the maxim that “once a mortgage, always a mortgage.” When one seeks to convert such a •deed into a mortgage, the proof must be clear and convincing. The written instrument is presumed to express the intention of the parties. Howland v. Blake, 97 U. S. 624; Etheridge v. Wisner, 86 Mich. 173 (48 N. W. 1087). This is elementary, and no other authorities need be cited. An agreement to reconvey, at the time a deed is executed, is not sufficient to justify courts in holding the deed a mortgage. Stahl v. Dehn, 72 Mich. 645 (40 N. W. 922). A conditional sale will not be converted into a mortgage where it satisfactorily appears that a conditional sale was intended. Cornell v. Hall, 22 Mich. 377. A deed absolute, in payment of a debt, with a separate agreement to reconvey within a year, was held not to be a mortgage. Robinson v. Cropsey, 2 Edw. Ch. 138; Holmes v. Grant, 8 Paige, 243. A deed absolute at the time of execution cannot be turned into a mortgage by the subsequent acts of the parties. Swetland v. Swetland, 3 Mich. 482. Where the grantor reserved the privilege to redeem at any time within 10 years by paying the purchase price and interest, at the option of the grantor, the transaction was held to be a conditional sale, and not a mortgage. Blumberg v. Beekman, 121 Mich. 647 (80 N. W. 710).

Authorities might be multiplied upon this branch of the law. The controlling question is: What was the intent of the parties? Was there a mutual understanding or agreement between complainant and Wilcox and Wool-pert that the absolute deed was intended only as a mortgage ? There is no legal obstacle to a conveyance by the mortgagor to the mortgagee of his equity of redemption in satisfaction of the debt, or to apply the value of the land .upon the debt, and save the expense of foreclosure. Wilcox and Woolpert had a complete mortgage title. They could foreclose, and, in the course of a year and three months, obtain the legal title. No object on the part of Wilcox and Woolpert is apparent in obtaining this deed, other than to save the expense of foreclosure. Even under complainant’s theory, the deed was no greater or better security than the mortgage which they already had. If the deed was a mortgage, they were in no better position after its execution than before. Mrs. Sowles might have redeemed before the execution of the deed. It is significant that, though she was in court during the hearing in the court below, she was not called as a witness, and the failure to call her is not satisfactorily explained. Her solicitors sought mainly to make their case by calling Mr. Wilcox as their own witness, treating him as a hostile witness, and subjecting him to a most rigid cross-examination. While it is true that, under this searching examination, he spoke of the deed as an indemnity and as a security, I think it evident that he used these terms not in the sense of creating a lien upon the land, but as a payment of the debt. Mr. Sowles, a witness for the complainant, testified:

“Q. He [Wilcox] paid that judgment for you, didn’t he?

“A. Yes, sir.

“Q. You don’t owe him for that ?

“A. No, sir.

“Q. Why don’t you ?

“A. Because we give the land in security so he can get his pay out of it.

“Q. You gave him the land to pay it ?

“A. No.

“Q. Don’t you owe him anything ?

“A. I claim, not. He was to take his pay out of the land, and give us the balance from the 145 acres.”

And again he testified: ‘ ‘ He [ Wilcox ] agreed to sell the property, and give me a balance.”

Under this testimony the absolute title was conveyed, coupled with a trust resting in parol, under which Wilcox agreed to sell, and pay to Mr. Sowles any surplus that might remain over the amount due Wilcox.

Complainant and her husband knew that these lands and the lands of Wilcox and Woolpert were sold on the execution; that the time of redemption was about to expire ; that not only would complainant lose this land upon failure to redeem, but also that Wilcox and Woolpert would lose theirs; that this farm had been neglected, and was depreciating in value; that defendant had sold his farm to pay the judgment; that he was occupying and improving this farm as though it were his own, and had done so for 2% years without any protest. She had never asked him to sell the land, and pay to her any surplus that might remain. She had constructive, if not' actual, knowledge that the mortgage was discharged. These acts tend very strongly to show the intention of the complainant in executing the deed. They are inconsistent with the theory that she considered her deed a mortgage. The testimony of Mr. Wilcox is that, at the time complainant surrendered possession and Norman gave the deed of the 80, he and Mr. Woolpert settled the whole matter, and released Mr. Sowles from any further liability to them. The testimony of defendant Norman sustains that of Wilcox. Nathaniel Sowles admitted that he asked Wilcox and Woolpert if they would take both places, and “square it up,” but denies that he made the agreement. Up to this time we are satisfied that there was a parol understanding between Sowles and Wilcox and Woolpert that he might pay the amount due, and, if he did, that the land should be redeeded to complainant by them. I think that this was a conditional sale, within the authorities above cited. They did not redeem, and probably could not, and the agreement of April 26, 1897, put an end to the agreement to reconvey, and operated as a complete settlement between the parties.

Charges of fraud and duress are made against Wilcox and Woolpert in procuring the deed from Norman. Mr. Woolpert was dead when this suit was tried. Wilcox, Nathaniel Sowles, and Norman Sowles are the only-parties who testified to what was said when that deed was made. The circuit judge, who saw the witnesses, was in better position than are we to determine the disputed questions of fact. He found that Wilcox acted in good faith, and that all that had been done in the case was at the instigation and request of Nathaniel Sowles, and that complainant knew the situation from time to time. We concur in his conclusion.

The record in this case is of unnecessary length. It contains 525 pages. The case was made by taking the stenographer’s minutes, and procuring the certificate of the judge thereto. It contains many pages of colloquies between counsel, and counsel and the court. The witnesses were taken over the same ground several times. While this may be sometimes permissible on cross-examination, where counsel doubt the truthfulness of the witness, yet, where there is no substantial discrepancy in the statements, such repetition should be eliminated in making a case for appeal. The testimony could have been much abbreviated, thus saving expense to the litigants and labor on the part of this court. The testimony in such cases should be condensed, and, so far as possible, put in narrative form.

Decree should be affirmed, with costs.

Montgomery, C. J.

In my opinion, the conveyance of 144£ acres by deed was a conveyance by way of mortgage. I reach this conclusion upon these grounds: The original mortgage was an indemnity mortgage. When the deed was given, it became apparent that some steps must be taken to raise the money with which to meet the liability of this judgment. The deed in question was made with the understanding, as I think the record shows, that the property should be sold, if necessai'y, to meet the liability. The testimony of the defendant Wilcox was, in part, as follows:

“Q. You held that deed for the purpose of indemnifying you against loss by reason of your suretyship ?

“A. That was a bona fide deed.- It was not a trust deed, or anything of the kind; it was a bona fide deed.

“Q. Explain what you mean by not holding it in trust.

“A. It was in case Mr. Sowles did not pay the judgment, that we could dispose of the property, and pay it.

“Q. You were to dispose of the property, and pay that judgment if he did .not ?

“A. Yes, sir.

“Q. Why didn’t you do so ?

“A. He said, £ Fight as long as there is a dollar left.’

“Q. Your only purpose in holding that deed was for the purpose of discharging your liability upon the bond ?.

“A. The purpose was to pay the judgment when he got done fighting, if there was enough to pay it.

11Q. To discharge your liability on the bond ?

“A. Why, and other expenses incurred with it.”

It also appears that, after the deed was given, further efforts were made to defeat the judgment. Had this been accomplished, it would hardly be contended that the absolute title to this land passed to the grantees. This is not a case where there is a deed with an agreement to re-convey to the grantor, as in Cornell v. Hall, 22 Mich. 377, but it is a conveyance with the purpose of enabling the grantor to make a sale and meet a liability. I am at a loss to understand what essential ingredient of a mortgage is lacking. It is true, Mr. Sowles testified that defendants were to take their pay out of the land, and give the balance to complainant; but it is apparent from his whole testimony that it was intended that he himself should have the right to pay the judgment, if able to, or to defeat it by legal proceedings, if he could do so.

I think the decree should be reversed, and an accounting ordered.

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


author: Grant, J.

text:
    HATCH v. CALHOUN CIRCUIT JUDGE.
    Statutes — Amendment — Highways — Neglect of Overseer-Penalties.

       Where a section of the general highway law was amended, including new provisions and imposing a penalty, held, that the penalty was limited to the amendatory act, and did not extend to all the other provisions of the amended act. Held, also, that the term “this act,” used in the penal provision, was used in the sense of and meaning “this amendatory act.”

      Mandamus by Jesse M. Hatch, prosecuting attorney of Calhoun county, to compel Clement Smith, circuit judge of said county, to vacate an order dismissing a criminal cause, and to proceed with the trial.
    Submitted April 30, 1901.
    Writ denied June 17, 1901.
    In 1881 the legislature passed an act to revise and consolidate the laws relative to highways and private roads. 2 Comp. Laws, §§ 4035-4192. This act is divided into 12 chapters, and covers the whole subject of the construction, maintenance, and care of public highways. Section 3, chap. 3(2 Comp.'Laws, § 4088), reads as follows:
    ‘ ‘ It shall be the duty of the overseer to give at least twenty-four hours’ notice to all persons assessed to work on the highways in his district, and residing in his township, of the time when and the place where they are to appear for that purpose, and with what implements; and he shall notify the owner or agent of any nonresident lands within his district, if he shall know that any such owner or agent resides within the township, of the number of days assessed upon such lands, and of the time when and place where the labor is to be performed, which notice shall be given at least five days previous to the time appointed.”

      That part of section 2, chap. 3, of the revision of 1881, material to notice, reads as follows:
    “Every overseer shall cause the highway labor assessed within his district against persons residing in his township, or represented therein by an agent, to be collected, either by labor or commutation, before the first day of August in each year, subject to the provisions of section thirteen of this chapter.”
    This section was amended by Act No. 130, Pub. Acts 1891, and is now compiler’s section 4087, and, as amended, reads as follows:
    “Every overseer shall cause the highway labor assessed within his district against persons residing in his township, or represented therein by an agent, to be collected, either by labor or commutation, before the first day of August in each year, subject to the provisions of sections twelve and thirteen of this chapter; but he may, in his discretion, reserve not to exceed one-eighth of the amount, to be applied for the purpose of repairs at a later period. And it shall be the duty of every overseer of highways, who is charged by law with supervising the performance of highway labor within his district, to see to it, and require, that all gravel or dirt scraped or dumped upon the track of any highway in his district be promptly leveled and smoothed so as to make the same as safe and passable as the condition of the weather and material will perafit. Every overseer of highways who shall violate the provisions of this act, or who shall willfully neglect to perform the duties enjoined upon him by this act, shall, upon conviction thereof, be punished by a fine not exceeding twenty-five dollars, or be imprisoned in the county jail not more than thirty days, or by both such fine and imprisonment, in the discretion of the court.”
    One Peter Van Sickle, an overseer of highways, was arrested under a criminal complaint and warrant for neglecting to notify certain residents of his road district to work on the highway, as provided in section 4088. It was urged by relator that the penalty provided by the act of 1891 applies to this neglect of duty by the overseer of highways, mentioned in the act of revision. The defendant demurred to the complaint upon the ground, mainly, that the act of 1891 did not apply,to section 4088 and other provisions of the act of revision, but only applied to neglect of the duties imposed by the act of 1891. The court below sustained the demurrer. The relator, the prosecuting attorney, prays for the writ of mandamus to set aside the,order of the court, and to compel respondent to proceed with the trial of the cause.

      Jesse M. Hatch, Prosecuting Attorney, in pro. per.

      Herbert E. Winsor, for respondent.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The general rules of construction.and interpretation of statutes are well understood. Upon them counsel in this case do not disagree. The sole difficulty is in the application of the rules. Counsel for the people relies upon the-general rule “that an amended statute is to be understood, as far as future acts are concerned, in the same sense as if it read from the beginning as it reads as amended,” and that, where Act No. 130 is repugnant to other provisions of the-act of revision, it must be held to repeal them, to the extent of such repugnancy; citing 23 Am. & Eng. Enc. Law, 285, 495. The soundness of this rule, as there-stated, is not .questioned. Other rules are as well established as this, viz.: That a statute “must be construed with reference not only to its language, but its object, as-gathered from its various parts.” Washburn v. People, 10 Mich. 372, 384. And that the primary object of all interpretation or construction is to ascertain the real intention of the legislature, and no specific or artificial rules of' interpretation can be of any value which do not contribute-to this end. People v. Saginaw Circuit Judge, 26 Mich. 342, 344. And that a statute must be so construed, as, if possible, to give effect to all its provisions. Swartwout v. Railroad Co., 24 Mich. 389, 400. In Peninsular R. Co. v. Duncan, 28 Mich. 130, 135, Justice Cooley said:

“What we should seek here is the intention of the legislature, and not the testing by nice rules of art the language employed. It may possibly appear, as is too often the case, that the legislation has been carelessly phrased, and will be perverted if tested by nice rules.”

Repeals by implication are not favored in the law. In re Bushey, 105 Mich. 64 (63 N. W. 1036). It therefore becomes important to consider the other provisions of the act of revision.

Section 4174, 3 Comp. Laws, requires the overseer to destroy noxious weeds, etc., and provides a penalty of $35 for neglect of such duty. Section 1 of chapter 9 (3 Comp. Laws, § 4153) provides that a commissioner or overseer) having accepted his office, shall, for every neglect of the duties thereof, forfeit the sum of $10. Section 3 (3 Comp. Laws, § 4154) provides that the commissioner or overseer may be prosecuted by information or indictment for any deficiency in the highways occasioned or continued by his fault or neglect, and, on conviction, fined not to exceed $50. Section 4 (3 Comp. Laws, § 4156) makes the overseer liable to pay for all the work not done, if he shall neglect or refuse to warn the residents of his district to work on the highway. Under the contention of relator, the above penal provisions are repealed by implication, for there is no repealing clause in Act No. 130.

In addition to section 3 of the original act, the amended act imposed another duty upon the overseer, not found in the act of revision. It imposed a penalty which, in the opinion of the legislature, was suitable to the violation of duties imposed by that section. Does it follow that the legislature intended to impose the same fine and imprisonment upon the overseer for every failure of duty, and to cover all his duties, as well those where specific punishments are imposed as those where none was before imposed? Construing this amended act in connection with all the other provisions of the act, it does not seem to me reasonable to hold that the legislature intended a repeal of all these other provisions, or that the intention of that act was to impose a fine or imprisonment, or both, for the simple failure of an overseer to notify a resident to work on the highway.

Counsel for the people insists that there is no repugnancy between the amended act and section 4156, which makes the overseer liable to pay for all the work not done, when he shall neglect or refuse to warn the residents of his district. ■ The obvious reply to this position is that the amended act applies only to the neglects of duty therein mentioned, or it applies to all the neglects of duty covered by the original act. There is no middle ground. It cannot be held to impose a penalty where none existed before (although it might well be held that the liability of the overseer to pay for work not done through his neglect of duty is a penalty, or in the nature of a penalty), and to leave those provisions which impose a penalty as valid. Another singular result would follow the contention of relator, viz., the other penal provisions of the old statute would be repealed as to the overseer, and remain in force as to the commissioner.

I am of the opinion that the legislature, in Act No. 130, used the term “this act” in the sense of and meaning “this amendatory act,” and that the punishment therein provided must be limited to the duties therein imposed.

I think the writ should be denied.

The other Justices concurred.


author: Montgomery, C. J.

text:
    CAMPAU v. LE BLANC.

    Highways — Establishment — Adequacy of Award — Decision of Township Board—Conclusiveness.
    A bill to enjoin the opening of a highway, alleging that complainant’s land was valuable for manufacturing purposes, but that the commissioner awarded him damages based on its value for farming purposes only, is properly dismissed, where it appears that the commissioner’s finding was affirmed by the township board on an appeal taken by complainant under 2 Comp. Laws, § 4042, and the decision of the board is in no way impeached.
    Appeal from Wayne; Rohnert, J.
    Submitted May 7, 1901.
    Decided June 17, 1901.
    Bill by Alexis Campau and Adolph N. Marion against David A. Le Blanc, highway commissioner of the township of Ecorse, to enjoin the opening of a highway. From a' decree dismissing the bill, complainants appeal.
    Affirmed.

      William E. Henze, for complainants.

      Stanton Clarke (Alfred Lucking, of counsel), for defendant.

       Rehearing denied July 19, 1901.

   Montgomery, C. J.

Complainants filed a bill to have the proceedings of defendant, as highway commissioner of Ecorse township, in laying out and opening a highway through certain lands of complainants, set aside and decreed to be null and void, and that said highway commissioner, and ..all persons claiming to act through or under him, be perpetually enjoined from constructing, using, or maintaining said public road through complainants’ lands, and from interfering with the peaceful possession and enjoyment of said lands of complainants.

Complainants’ bill alleges ownership of the lands described as part of P. C. 75 and 669, in that same township ; that the land is located in the manufacturing district on the river Rouge, and is worth about $1,500 per acre;, that in August, 1899, proceedings were taken by defendant to open this road, and that for said road said defendant took a strip of land of complainants’ containing 1.74 acres, and, in the language of said commissioner’s report, “that he appraised the same at $100 per acre for general farming purposes, and awarded complainants $174 for the same; ” that it does not appear in said commissioner’s report that the commissioner appraised said lands at their actual value, or awarded to complainants the full market value of the strip taken for the road, and did not award just compensation for the lands taken for the road. Complainants further allege that they appealed to the township board, and that said board confirmed the commissioner’s report, and that on Saturday, April 28, 1900, the commissioner entered upon the land, tore down fences, and proceeded to lay out a road, and threatens to use and maintain the samé as a road. The, charge by complainants that they were not tendered any compensation, and were not notified by the commissioner, is not maintained.

The testimony taken on the hearing discloses that, on the appeal to the township board, a full hearing was had, and testimony taken on behalf of the complainants, as well as in support of the commissioner’s finding. The township board made an order affirming the finding of the commissioner. There is no. charge in the bill impeaching the action of the township board. The complainants sought a remedy provided by statute. 2 Comp. Laws, § 4042. If there were previous irregularities (which does not appear), the appeal waived them. Brody v. Penn Township Board, 32 Mich. 272; Prescott v. Patterson, 44 Mich. 525 (7 N. W. 237). The decision of the township bqard, not being in any way impeached by the bill of complaint or the testimony, is conclusive and final. 2 Comp. Laws, § 4043; Brown v. Greenfield Township Board, 109 Mich. 557 (67 N. W. 566), and cases cited.

The decree dismissing the bill will be affirmed, with costs of this court to appellee.

The other Justices concurred.


text:
    OCOBOCK v. MYERS’ ESTATE.
    1. Bills and Notes—Indorsements—Statute op Limitations — Appeal—Record.
    A contention that certain indorsements of payment on a promissory note were permitted to go to the jury as evi- . dence to remove the bar of the statute of limitations, held not to be sustained by the record.
    3. Same—Evidence op Payments.
    In an action on a promissory note, evidence that payments were made on a note held by plaintiff, together with some testimony, slight but uncontradicted, tending to show that he held but one note against the payor, is sufficient to justify a finding that the payments were made on the note in suit.
    Error to Van Burén; Carr, J.
    Submitted May 7, 1901.
    Decided June 17, 1901.
    Charles C. Ocobock presented a claim against the estate of James Myers, deceased, based on a promissory note. The claim was disallowed in the probate court, and claimant appealed to the circuit, where he recovered a judgment. Defendant brings error.
    Affirmed.

      Benjamin F. Heekert, for appellant.

      Thomas J. Cavanaugh, for appellee.
   Montgomery, C. J.

The claimant recovered a verdict for $548.14 on a claim based upon a note made by deceased in March, 1881. The question in the case was whether the statute of limitations had run against the note. The questions of law involved are not numerous.

It is contended by the counsel for the estate that the indorsements were received in evidence, and that this was error. The record does not indicate very clearly that the circuit j udge at any time intended to receive the indorsements. The record shows that the note was offered in evidence. The objection urged was that the note was outlawed. The discussion which followed included objections to the indorsements, and the court, in the course of the discussion, said: “Of course, indorsements are not admissible in and of themselves only in connection with the evidence, and it is a question to go to the jury whether the payments were made.” After some further colloquy, the court said, further, “The note maybe received.” Later on, at the close of plaintiff’s case, defendant’s counsel said, “I would like to have the court just■ have the face of the note read to the jury, and not have the indorsements referred to.” The court replied, “The indorsements are not in evidence, I understand.” In addition to this, the court instructed the jury:

“In this case there is no proof that the indorsements appearing on the note were placed there by the direction or with the consent of the maker of the note. Such indorsements are no evidence that any payments were made by the maker of the note, as it is not shown that Myers ever knew of their being made, or that he ever made a payment to apply on this identical note. If entered by the claimant on the note, such entry or indorsement is not evidence, and not even a circumstance, that the maker of the note made payments, unless claimant has shown that the payments were made by the maker to apply on the note, and directed the claimant to indorse them on the note, which you are instructed he has not done.”

It is clear, therefore, that the jury were not permitted' at any stage of the proceedings to regard these indorsements as evidence of payments, and the allegatidn of error in that regard-must be overruled.

It is also contended that the evidence of payments on the note was incomplete, as the testimony of the witnesses did not identify the note in suit as that upon which the payments were made. The. note was not present when the payments were made. The evidence, however, is directed to the point that the payments were made upon a note held by claimant. There was no evidence that he. held any other note against decedent, and there is some testimony, given by his brother, who had access to his papers, that he did not. We are satisfied that it was a question for the jury as to whether the payments were made upon the note in suit, and the charge upon this point was clear and explicit that, unless the payments were made upon this identical note, no recovery could be had.

We find no error. Judgment affirmed.

The other Justices concurred.


text:
    UNION TRUST CO. v. CASSERLY.
    1. Mechanics’ Liens — Contract for Material — Separate Deliveries—Time for Filing Lien.
    Wliere complainant furnished a quantity of material for the construction of a building in accordance with a gross estimate made by him, and thereafter delivered further material from time to time as ordered by the contractor, all of the materials should be regarded as having been furnished under a single contract, and hence the 60 days limited by 3 Comp. Laws, § 10714, for filing a statement of lien, did not begin to run until the date of the last delivery.
    2. Same—Errors in Statement of Lien.
    A mechanic’s lien will not be defeated because the time when the first and the last materials were furnished was not correctly stated in the claim of lien, where the claim was in fact filed within 60 days from the furnishing of the last material.
    3. Same—Confusion of Charges—Waiver of Lien.
    The fact that complainant’s book account against the contractor contained other charges than those relating to the building in question is not of itself sufficient to show that he had waived his right' to a lien.
    4. Same—Application of Payments.
    Where the contractor made payments to complainant during the time the materials were being furnished, without directing their application, complainant had the right tp apply them on charges other than those for materials entering into the building in question.-
    5. Same—Overstatement op Amount Due.
    . An unintentional overstatement of the amount due in a claim of lien is not fatal to the lien.
    Appeal from Wayne; Waite, J.
    Submitted May 7, 1901.
    Decided June 17, 1901.
    -Bill by the Union Trust Company, receiver of Samuel G. M. Gates, against Peter Casserly, Patrick Casserly, and William Diehl, to enforce a mechanic’s lien. From a decree for complainant, defendant Patrick Casserly appeals.
    Modified and affirmed.

      Russel & Campbell, for complainant.

      Bacon & Yerlces, for appellant.
   Montgomery, C. J.

The complainant, as receiver of Samuel G. M. Gates, doing business as the Detroit*Lumber & Box Factory, files 'this bill to enforce a mechanic’s lien. Complaint is made that the court appointed Harry C. Bulkley, a member of the firm of Russel & Campbell, solicitors for complainant, as receiver, and it is contended on authority of Merchants’, etc., Bank v. Kent Circuit Judge, 48 Mich. 292 (5 N. W. 627), that the appointment is void. The complainant’s counsel assert that Mr. Bulkley is not a member of the firm of Russel & Campbell, and the record does not disclose that he is.

On the merits of the case numerous objections are urged,—so many, in fact, as to suggest the thought that a complainant must travel a rough way before he reaches the goal in these cases if the defendant urges all plausible defenses against his claim. Yet the facts of the case are not complicated. There is no doubt that the materials furnished by the complainant went into defendant’s house; that they were substantially of the value found by the circuit judge; that they have not been paid for; that a claim of lien was filed within the statutory time; and that, although defendant Patrick Casserly paid the contractor in full, he did so without taking the precaution which can alone afford him protection under our statute.

It is contended that the testimony shows that the contract was for the delivery of a specific amount of material, and that the delivery of other items was under separate contracts, and that therefore a lien should have been filed within 60 days after the furnishing of each item. 3 Comp. Laws, § 10714. We think this too narrow a construction of the statute. The correct rule is stated in Phil. Mech. Liens, § 229, as follows:

“Where work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct, matters of settlement, the whole account must be treated as a unit, or as being but a single contract.”

See, also, Jones v. Swan, 21 Iowa, 181; Hofer’s Appeal, 116 Pa. St. 360 (9 Atl. 441); St. Paul, etc., Brick Co. v. Stout, 45 Minn. 327 (47 N. W. 974); Page v. Bettes, 17 Mo. App. 366.

It is urged that the statement of the affidavit as to the -time when the first item and the last item were furnished is erroneous. It is not claimed that the last item was furnished more than 60 days prior to the filing of notice of lien. The error did not prejudice the defendant in any way. See Phil. Mech. Liens, § 359.

It is contended that, as the book account against the contractor contained other items of charge, the complainant must be held to have waived its right to assert a lien. At the most, such an entry would be but evidence of an intention which we do not find to have existed in this case.

The complainant received some money from the contractor, Diehl, during the time it was furnishing the material, which it applied on an old account, and on items which did not go into defendant’s building. No application of payments was made by the debtor, and the creditor had the right to make the application.

The affidavit overstated the amount due by a few dollars. It is manifest that no fraud was intended, and an honest error does not avoid a lien. See cases cited in. note to section 10714, 3 Comp. Laws.

An item of May 28th, amounting to $5.60, is not clearly shown to have been for material going into defendant’s house. The decree should be reduced by this amount, and in other respects affirmed, with costs.

The other Justices concurred.


text:
    NATIONAL FRATERNITY v. WAYNE CIRCUIT JUDGE
    Pleading—General Issue—Abatement—Jurisdiction.

       Circuit Court Rule No. 6 reads that: “Whenever the defendant interposes a plea in abatement, he may also, at the same time, plead the general issue,” etc. Held, that this rule includes all dilatory pleas, including pleas to the jurisdiction.

      Mandamus by the National Fraternity to compel George S. Hosmer, circuit judge of Wayne county, to determine the issue raised by a plea to the jurisdiction.
    Submitted June 4, 1901.
    Writ granted June 17, 1901.

      Lemuel H. Foster, for relator.

      M. J. Lehmann, for respondent.

       Head-note by Grant, J.

   Grant, J.

Suit was brought against the relator, a foreign corporation, in the circuit court for the county of Wayne. The defendant interposed a plea which is conceded to be a plea to the jurisdiction, in which it is averred that the defendant, at the time of the commencement of suit, was not doing business in this State, had no office in this State, and no officer, agent, or attorney authorized to receive service of legal process, or upon whom legal process could- be served, and prayed judgment whether the court could or would take further cognizance of the action. The defendant at the same time interposed a plea of the general issue, in the following language:

“And the defendant, by Lemuel H. Foster, its attorney, not waiving its said plea in abatement, or appearing in said cause other than subject to the final determination of said plea against the said defendant, and in pursuance of the provisions of Circuit Court Rule No. 6, comes and demands a trial of the matters set forth in the plaintiff’s declaration.”

The circuit judge declined to pass upon the issue raised by the plea, on the ground that it was a plea to the jurisdiction, and not a plea in abatement, and further held that the plea of the general issue waived the plea to the jurisdiction.

Circuit Court .Rule No. 6 reads as follows:

“Whenever the defendant interposes a plea in abatement, he may also, at the same time, plead the general issue,” etc.

Chitty and other writers upon Pleading, as the circuit judge said, recognize a distinction between pleas to the jurisdiction and pleas in abatement. We think, however, under the practice and decisions in the courts of this State, a plea to the jurisdiction is included within the term “plea in abatement,” used in the rule. The result of a plea to the jurisdiction, if sustained, is to abate the suit. It is a dilatory plea. The purpose of the rule was to provide for a speedy determination of these pleas, and an immediate trial of the cause if the plea is bad. See 1 Green, New Prac. p. 204, § 8; 1 Stevens, Mich. Prac. §§ 21(a), 150(g), 212(d). Judge Green, at page 205, says:

“Pleas are either in abatement or in bar of the action, and should always be interposed in this order. By ‘pleas in abatement,’ as the terms are here used, all dilatory pleas are understood to be included; and this classification, though not technically accurate, will be found practically unobjectionable. Mr. Chitty’s division of pleas is into (1) pleas to the .jurisdiction, (2) pleas in abatement, and (3) pleas in bar. The most general division, however, is into pleas dilatory and peremptory; the former class including every description except pleas in bar, which are of the peremptory kind,”—citing authorities.

In JSeyman v. Covell, 36 Mich. 157, Justice Campbell said:

“A plea in abatement to the jurisdiction must always show another forum where the rights have already become subject to judicial authority.”

This shows how a plea to the jurisdiction was then considered by the court.

The authors of Mich. Dig., vol. 2, p. 314, § 301, and the author of the Michigan Revised Rules, at page 32, state that the “objection to the'jurisdiction of a court of general jurisdiction must be taken advantage of by a plea in abatement,”—citing Webb v. Mann, 3 Mich. 141. A reference to the case, however, will show that the court only held that the objection must be taken advantage of by plea. Probably these authors may have had in mind the authorities above referred to when they used the term ‘ ‘ plea in abatement ” in the digest and in the notes to the rules.

The writ will issue, without costs.

The other Justices concurred.


text:
    CITY OF IRON MOUNTAIN v. UDDENBERG.
    Municipal Corporations—City Treasurer—Salary — Collection Fees.

      The statute governing the organization of the relator provides that the city treasurer shall receive such annual salary as the council shall determine by ordinance. The council passed an ordinance fixing a salary, and providing that it should be in full compensation for all services rendered the city by him. The statute imposes the duty upon tho city treasurer to collect all taxes,—State, county, and municipal. Held, that the salary included all the compensation to which the treasurer was entitled, and that the collection fees belong to the city.

      Certiorari to Dickinson; Stone, J.
    Submitted June 4, 1901.
    Decided June 17, 1901.

      Mandamus by the city of Iron Mountain to compel Arthur Uddenberg, treasurer of .said city, to account for certain collection fees. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The relator is a city of the fourth class, organized under chapter 88, 1 Comp. Laws. Section 3060 (being section 38 of chapter 7 of the act) provides for the compensation of city officers, and that the treasurer, among other city officers, “shall receive such annual salary as the council shall determine by ordinance.” The relator passed an ordinance in which the salary of the city treasurer was fixed at $750, and provided that it should be in full compensation for all services rendered the city by him. Section 3034 requires the -treasurer to make an annual report to the common council of the receipts and disbursements of the treasurer during the previous year. The respondent, the city treasurer, did not account for $552.02, being collection fees on taxes paid subsequent to January 9, 1901. His contention is that the collection of taxes is not a part of his duty as city treasurer, and that the collection fees belonged to him, and not to the city. The relator filed’ a petition in the circuit court for the writ of mandamus to test the question. The learned circuit judge held that the moneys belong to the city, and granted the writ. The case is before us for review by the writ of certiorari.

      H. M. Pelham, for relator.

      Brown & Trudell, for respondent.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Section 3033, 1 Comp. Laws, provides, among other things, that “the city treasurer shall be the collector of State and county taxes within the city, and all other taxes and assessments levied within the city. He shall perform all such duties in relation to the collection of taxes as the council may prescribe, and as provided by this act.” ^Section 3335 provides that he “ shall perform the same duties and have the same powers as township treasurers, except as herein otherwise provided.” Section 3310 provides that moneys not received or appropriated for any particular fund shall be credited to the contingent fund. Section 3332, as originally enacted, provided that “all such percentages for fees collected by him [city treasurer] shall be paid into the city treasury to the credit of the contingent fund.” This section was amended in 1899 (Act No. 136,. Pub. Acts 1899, chap. 31, § 15), and that clause was omitted.

It seems to us entirely clear that it was the purpose of this act to impose upon the treasurer as such the duty of collecting taxes, and not as the independent agent of the State, and to confer upon the municipality the power to fix his compensation for all such services. This duty was imposed upon him as a city officer, with the provision that he should receive for all his services such compensation as the common council might by ordinance allow. The ordinance enacted covers his compensation for all services he renders as such officer. The provision that, as collector, he should have the same power as township treasurers, relates solely to the methods provided for collecting the taxes, and does not carry with it the right to retain the fees in addition to his salary. Township treasurers receive .no other compensation than the fees provided by law. The fact that in the amendment of 1899 the closing sentence of section 3332 was omitted is not of itself sufficient to show that the legislature inténded to increase the treasurer’s compensation beyond that fixed by the council. "Without the omitted clause, all such fees would, under section 3310, be credited to the contingent fund.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PUGH v. SCHINDLER.
    1.Boundaries — Adverse Possession — Permissive Occupancy.
    Where adjoining landowners erect a division fence under an' agreement that, if afterwards found not to be on the true line, it shall be changed to conform thereto, their subsequent occupancy in recognition of the agreement is permissive merely as between themselves, and, however long continued, cannot ripen into a title by adverse possession.
    2.Same—Change oe Ownership.
    But the possession of a grantee of one of the parties, who enters and occupies in ignorance of such agreement, may be adverse as to the other, though no express notice is given the latter of an intention to hold adversely.
    3. Same—Surveys—Evidence.
    Surveyors’ records not' complying with the requirements of 1 Comp. Laws, § 2622, are inadmissible in evidence.
    4. Same—Old Fences—Instructions.
    In an action involving a disputed boundary, it was error to refuse to instruct the jury that “fences of long standing, erected upon wliat parties have called the true line, and up to which they have improved and cultivated, are better evidence of the true line than surveys made after the original monuments have disappeared.”
    Error to Kent; Perkins, J.
    Submitted January 30, 1901.
    Decided June 17, 1901.
    Ejectment by John A. Pugh against Charles Schindler and others. Prom a judgment for plaintiff, defendants bring error."
    Reversed.

      Rodgers, McDonald & Minor, for appellants.

      Charles JS. Ward, for appellee.
   Moore, J.

This case was commenced in 1898. It was tried by a jury, who rendered a verdict in favor of plaintiff. Prom a judgment entered upon the verdict, the case is brought here by writ of error.

The claims of the respective parties were well stated by the circuit judge in his charge to the jury, as follows:

“ This is an action of ejectment, brought by the plaintiff to determine the title to a certain strip of land, 28 feet wide at one end and 33 feet at the other, lying between the land owned by the respective parties on section 32 of the township of Alpine, in this county. The plaintiff owns, in addition to other lands, 15 acres in the northwest corner of the southeast quarter of said section, and the defendants own the northeast quarter of the section. So you see the disputed territory is where the northerly side of this 15-acre strip, belonging to the plaintiff, touches the southerly line of the defendants’ land, which would be at or near the center of the section, and extending thence easterly the entire width of the 15-acre strip, 307 feet.

“There is no contention here but that the title to the land owned by each of the parties may be traced back to the government; the plaintiff through one Wright, and the defendants through Noel Hopkins, the former owners. It is claimed on the part of the plaintiff that some time in the year 1840, and while Mr. Wright, the plaintiff’s predecessor, was the owner of the land on the south, and Noel Hopkins, the defendants’ predecessor, was the owner of the land on the north, for reasons which you will remember, these adjoining owners became desirous of establishing, for the time being, a dividing line between their respective properties; that, to accomplish this purpose, they together projected a line from the government quarter post on the east line of the section, which was then standing, westerly towards the center of the section, and until it crossed the north and south quarter line; that these owners then and there mutually agreed that the line thus established should not be considered the permanent dividing line between their respective properties, but that the same should be subject to change when the true line should afterwards be definitely determined by a proper survey; that soon thereafter a rail fence was built upon the line so laid out, which fence has remained substantially in the same location, with some changes, which you will remember, since it was built, in 1841 or ’42, until the present day,— a period of about 60 years. The plaintiff further claims that not only did these early owners— Wright on the one side, and Noel Hopkins on the other— recognize the undetermined character of this line between their lands, but that their successors in ownership recognized that the line so established was not final or conclusive, but that it was subject to change when the true line should be definitely ascertained and determined; and he claims that by a true survey of the premises, based upon the original stakes and monuments on the east and west lines of the section, the true boundary line is 33 feet north of this old fence at the west end of the strip in controversy, and 28 feet north at the east end. The plaintiff further claims that the occupancy of this strip by Noel Hopkins in his lifetime, and by his successors in title down to Mrs. Osborn, who purchased in 1885, was merely permissive, and that, by reason of the agreement so made between the original owners, such occupancy could not and did not ripen into an absolute title, notwithstanding the great length of time that has elapsed since this old line was laid out and the fence built, as I have stated.

“On the other hand, the defendants claim that the fence as now standing upon the premises is located upon the line which would be indicated by the government survey dividing these parties’ land; in other words, that the true line is where this fence now stands. And they further claim that, whether it is upon the true line or not, it has stood in its present location ever since the year 1841, or thereabouts, and the parties upon both sides have occupied up to it as the dividing line, and have been satisfied with it, and that by their acts they have established the line of the fence as the true boundary line. They claim also that, by reason of the character and nature of their occupancy of the land upon the north, they have acquired title by adverse possession (which term I will presently explain to you) to this disputed strip. It is further claimed by the defendants that no such agreement in relation to this fence was ever made between Noel Hopkins and Mr. Wright at the time or just before this old fence was built, as claimed by the plaintiff.”

The defendants claim a verdict should have been directed in their favor. Their counsel say:

“The agreement, if made, as testified to by Noel Hopkins, can have no effect upon the legal rights of the parties to it, or their successors in interest. It was not an agreement to forbear any legal rights. The agreement, if made, went no further than the law itself would have gone. The agreement, as testified to, was that, if the fence was not on the true line, they would change it. The law itself, in the absence of such an agreement, would have compelled them to change it had they been diligent in discovering the error. It was simply a friendly, neighborly agreement to do what was right in the matter, and to comply with the law without any litigation or trouble. The fence was built upon the line. The parties agreed that, if they had made a mistake, they would allow it to be corrected. This was no more than the law would have compelled them to do had they acted within a reasonable time, and within the period fixed by the statute of limitations. But upwards of half a century cannot be looked upon as a reasonable time. Pierson v. Mosher, 30 Barb. 81, is a case on all fours with the case at bar. If the conclusion reached in that case is the law, it is decisive of this case.”

The case cited is very nearly, if not, on all fours with the case at bar, though counsel for plaintiff insists that it can be distinguished. If it cannot, it is not in harmony with the weight of authority. There is testimony tending to show in this case that, when the line was run in the year 1840, it was agreed by the owners of the land on each side of the line that the line so run might not be the true line, and that, when the true line was established, it should control; and that this agreement continued to be recognized by the owners of the land up to a time so recent that sufficient time has not elapsed so that title could be obtained by adverse possession. If this agreement was in fact made, and continued to be recognized, then the occupancy was a permissive one, and the rule in such a case is, “A mere permissive possession, or one consistent with the title of another, however long continued, can never ripen into a title by adverse possession. 1 Am. & Eng. Enc. Law (2d Ed.), 794, and cases cited therein; Perkins v. Nugent, 45 Mich. 156 (7 N. W. 757); White v. Hapeman, 43 Mich. 267 (5 N. W. 313, 38 Am. Rep. 178); Bunce v. Bidwell, 43 Mich. 542 (5 N. W. 1023); Bird v. Stark, 66 Mich. 654 (33 N. W. 754); Smeberg v. Cunningham, 96 Mich. 378 (56 N. W. 73, 35 Am. St. Rep. 613); City of St. Joseph v. Seel, 122 Mich. 70 (80 N. W. 987).

It is claimed the court erred in charging the jury that, if the occupancy of Mr. Hopkins was permissive, it could not become adverse, even as to his grantees, without giving to the other owners notice of an intention to occupy adversely. The language used by the circuit judge was as follows:

‘ ‘ In the first place, it is contended by the plaintiff, and I charge you that the law is, that, if the defendants’ grantors obtained possession of this land by reason of an agreement to build a fence, and that the fence might be moved upon the true line at any time when it was ascertained to be not correctly located, as claimed by the plaintiff, then the possession so gained would be deemed in law to be permissive, and not adverse. And the law presumes such permission and consent to continue, and that such possession continued to be permissive, and not adverse, until some act is done or notice given that the possessor no longer holds by reason of such permission, but adversely, and with the intent to claim the land to the exclusion of the true owner, without regard to the location of the true line between them; but, in the absence of such act or notice so changing such possession from a permissive to an adverse one, no possession, however long continued, can be the foundation of a title by adverse possession. The defendants, in other words, cannot claim title to the land in dispute upon the theory of adverse possession, if such possession was originally obtained by the consent of the owner of the land, and they went into possession by reason of the permission of such owner, unless the character of such holding was subsequently changed by reason of the change in the intention of the-possessor, brought home to the knowledge of the owner, and continued without interruption for 15 years thereafter; for the reason that the possession gained by permission cannot be adverse so long as such possession continues by reason of such permission. And I further instruct you upon this point that the fact that the land on either side of the division line has changed hands since the fence was built would not render a possession adverse as to the subsequent owners which was not adverse as between the parties who built the fence. The situation would remain the same as between subsequent owners, no matter how many times it might be conveyed, unless some acts were done or notice given by the subsequent possessors to change the character of the possession from a permissive to an adverse one.”

We think, in the main, this was a correct charge, but some portions of it are not in accord with the law. As is. stated in the brief of counsel for plaintiff, “An intention to claim the land is necessary to the acquirement of title by adverse possession. 1 Am. & Eng. Enc. Law (2d Ed.), 789; Chapman v. Crooks, 41 Mich. 595 (2 N. W. 924).” If a grantee of Mr¡ Hopkins was informed at the time he made his purchase that the land he bought included all the land inclosed by the fence, and he entered into its occupancy without any knowledge that Mr. Hopkins’ occupancy was permissive, and with the belief that he was the owner of the land, and with the intent to occupy as an owner, his intention to claim the land might thus be shown; and, if the occupancy in all other respects met the requirements of an adverse occupancy for the requisite time to acquire title, we think it would, be sufficient.

The location of the true line was a matter of dispute. The plaintiff was allowed to introduce in evidence the record of two surveys. Section 2619, 1 Comp. Laws, provides for the admission of surveyors’ records. Section 2622 provides what they must contain to make them admissible. These sections of the statute have been construed in Smith v. Rich, 37 Mich. 549; Beeman v. Black, 49 Mich. 598 (14 N. W, 560); Van Der Groef v. Jones, 108. Mich. 65 (65 N. W. 602). The records were defective within these provisions of the statute, and should not have been received.

The defendants requested the court to charge:

“ Unless you find by the preponderance of evidence that the line located by Mr. Williams is on the line located by the original government survey, then the plaintiff cannot recover in any event. It will not do to permit boundaries to be disturbed and moved upon a survey made from an assumed starting point, without some proof of its being a true line, located and fixed by the original government survey. The only practical way of ascertaining the true line is by a survey made from some fixed starting point,— some monument placed under the original government survey; and, if such monuments are no longer discoverable, the question is, Where were they located? And fences of long standing, erected upon what parties have called the true line, and up to which they have improved and cultivated, are better evidence of the true line than surveys made after the monuments have disappeared.”

The judge gave part of this request in his general charge, but failed to instruct the jury upon what evidentiary effect they should give to fences that had been erected a long time. We think, under the circumstances of this case, the jury should have been instructed in this respect. Diehl v. Zanger, 39 Mich. 601; Beaubien v. Kellogg, 69 Mich. 333 (37 N. W. 691).

Other assignments of error are discussed by counsel, but they are either not well taken or are not likely to arise again.

Judgment is reversed, and new trial ordered.

Montgomery, C. J., Long and Grant, JJ., concurred with Moore, J. Hooker, J., concurred in the result.