text:
    POMEROY v. NOUD.
    1. Equity — Bill op Review — Leave to File — Dismissal on Hearing.
    There is no doubt of the power of a court of chancery, after granting leave to file a bill of review, to dismiss the bill at the hearing if it then appears, contrary to the averments of the bill, that there is, in fact, no new matter or no matter which might not have been produced upon the original hearing; and this without considering to what extent, if any, the omitted matter, if produced, might or would have varied the terms of the decree sought to be reviewed.
    2. Same — Matters Considered.
    The rules governing the granting or refusing of leave to file bills of review, and the scope of the review following such leave, are to some extent founded in considerations of public policy, as well as those of private right.
    3. Trusts — Accounting—Duty oe Trustee.
    A trustee is not always permitted to urge, against the strict examination of his accounts, all of the rules of legal warfare governing in purely adversary proceedings; and his duty to render an account not only mathematically correct, but equitably fair, and to submit his performances of the trust duties to examination, operates, often, to the advantage of cestuis que trust otherwise irretrievably in default.
    4. Review — Foreclosure — Trust Mortgage — Accounting by Trustee.
    On a bill of review to reopen a decree for the foreclosure of a mortgage, rendered after the death of the mortgagor, it appeared that the mortgagee, pursuant to the terms of the mortgage, had been in possession of the mortgaged and other property of the mortgagor, and had been for several years conducting the mortgagor’s business with a view to paying the mortgagor’s indebtedness to himself and protecting himself on indorsements; that he had never rendered an account, and that no one learned in the law had ever examined his accounts until after the granting of the foreclosure decree; that no accounting was attempted in the foreclosure proceedings nor the attention of the court directed to the fact that the mortgagee had for years conducted the business of the mortgagor. It appeared that the guardian ad litem of certain infant defendants was present and submitted all questions concerning the rights of his wards to the court. Held, that the court should proceed to an examination of the case upon the merits, though no new matter was produced which might not have been presented by the original hearing.
    5. Mortgages — Mortgagee in Possession — Conduct op Business-Compensation.
    Where a mortgagee in possession of the mortgagor’s business, and property for the purpose of paying himself the indebtedness which the mortgage secures, there being no express agreement to compensate him for his management of the ~ business, furnishes the mortgagor with annual statements containing a charge for that service, ratification and approval of such charges may be implied; but no such implication arises from the furnishing of similar statements to the mortgagor’s administratrix after his death.
    6. Same — Interest as Compensation.
    Where the mortgagee, in such a case, takes credit for interest on the mortgage debt, for interest paid on loans to carry on the business, and for interest on money advanced by him for that purpose, he is not entitled to compensation for managing the business in the absence of an express agreement therefor.
    7. Same — Interest.
    It is equitable in such a case that the mortgagee should receive interest paid by him, and interest upon the indebtedness owed to himself.
    8. Interest — Open Aooounts.
    Where a mortgagee in possession for the’ purpose of repaying the debt owed to himself and securing himself against indorsements, on paying notes of the mortgagor charges the amounts. thereof in an account, his action in so doing does not operate to render such account an open account, unliquidated and noninterest bearing.
    9. Same.
    Sums advanced by the mortgagor to purchase material and for labor to carry on the business are not unliquidated and non-interest bearing.
    Appeal from Manistee; McAlvay, J.
    Submitted April 6, 1906.
    (Docket No. 26.)
    Decided July 9, 1906.

      Bill of review by Louisa Pomeroy, Emelia Pomeroy Mackin, individually and as administratrix of the estate of John C. Pomeroy, deceased, and others, against Patrick Noud to set aside a.,decree for foreclosure of a mortgage and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Charles A. Withey and Frank L. Fowler, for complainants.

      Dovel & Dovel, for defendant.
   Ostrander, J.

Some references to testimony will be necessary to an understanding of the case, and will be made. The opinion of the trial judge, however, so fully outlines the case that it is here set out at length:

“ In this case the complainant in her own behalf, also as administratrix of her father, John C. Pomeroy, together with the widow and heirs at law of said deceased, files her bill in the nature of a bill of review against the defendant, asking that a decree heretofore entered in this court, which this bill seeks to. review, be set aside and an accounting be had between Patrick Noud, defendant, and the estate of John C. Pomeroy, and that said defendant be decreed to pay such estate any amount found due.
“On January 5, 1895, John O. Pomeroy, deceased, was insolvent, and defendant was indorser for him in the amount of about $40,000, and also held certain mortgages on real estate of said Pomeroy, and said Pomeroy, on January 3, 1895, gave defendant a mortgage for $43,000 to secure such indebtedness. This mortgage gave defendant a right to take possession of the property described therein ‘ and use and operate the same in such manner and for such length of time as to said second party shall seem advantageous, and apply the net earnings and proceeds to the payment of the obligations and indebtedness secured hereby, whether the same are due, or not; the operation of said bottling works and said mill property to be at the risk and expense of the said party of the first part.’ Defendant took possession January 6, 1895, of the property turned over to him under the mortgage and certain other property not described or included therein, for the purpose of making the attempt to realize the large amounts for which he had become indorser for Pomeroy, and proceeded to operate the said property and .so continued until the years 1901 and 1902. Defendant, as mortgagee in possession, found it necessary in order to operate the property to any advantage to put in large amounts of fresh money of his own, and claims that it was necessary for him to borrow in order to do this, and pay interest. J. C. Pomeroy died in December, 1897, and the complainant, Emelia Pomeroy Mackin, was thereafter appointed administratrix of his estate.
“ Much testimony has been offered relative to matters equally within the knowledge of the deceased and testified to by the parties to this proceeding. Such matters as are clearly within the prohibition of the statute (although some such testimony was put in the record) the court strikes out and holds such testimony incompetent.
“ The business of the deceased consisted of a sawmill and planing mill, with some cedar and other timber to supply it, also a bottling works at Manistee, and at Frankfort, and certain real estate not described in the mortgage, all of which property and business the defendant took into his possession, except the bottling works and the homestead occupied by Pomeroy’s wife and family, and, as before stated, proceeded to run the mill business and dispose of some of the other property.
“After the appointment of the administratrix and in December, 1897, or early in 1898, certain reports or statements of the business were made to the administratrix, and afterwards for the years 1898, 1899,1900, 1901, and in the year 1902 the defendant began proceedings to foreclose his securities for the purpose of realizing a balance of $11,752.34, claimed by him to be due and unpaid upon the amount of indebtedness owing him under such securities. Personal service was had upon the defendants, who were the same as complainants in this suit, and a decree pro confesso was afterwards entered therein in favor of Patrick Noud and against the defendants for the amount claimed. Petition was filed early in 1903 asking leave to file a bill in the nature of a bill of review, which was heard and granted, and afterwards the bill of complaint in this cause was filed.
“ The contention of the complainants in this suit is that the defendant, Patrick Noud, was practically a trustee, subject to all the duties and obligations required of trustees; that he in administering said property was extravagant and made charges for personal service and also charges of large amounts for compound interest; that he neglected to deal with tlje representative of the estate fairly, and by a system of bookkeeping covered up his acts and doings so that they were not intelligible and understood by the administratrix, and that in this and other matters he did not deal fairly and honestly in the premises; that these matters complained of were not known to the complainants and could not be easily ascertained, and that, in truth and in fact, at the time this accounting is asked, for, the estate of J. C. Pomeroy is entitled to a large amount of money from defendant and all the property upon the foreclosure proceedings he took or sold to satisfy his claim.
“ Both on the hearing of the petition hereinbefore mentioned for leave to file a bill of review, and upon hearing of the case after the bill was filed and an issue joined, much more time than usual has been given by the court to this matter. The perplexities surrounding the case under the proofs are not few, and the questions raised are of great importance and in a branch of the law under which there are not many cases to guide the court in coming to a determination.
“The proofs show that the defendant, Patrick Noud, took this property at a time when the same was of little value, and by wise administration and business shrewdness, assisted by a rising market in timber, successfully administered it. The books of account disclosed that he kept an account called ‘ Patrick Noud, Mortgagee,’ and also ah account called J. C. Pomeroy, Special;’ that in the first account all the transactions and doings relative to the property within the mortgage were entered, and in the second account matters not connected with the mortgage itself, but property outside of the mortgage received and administered by him. So far as the bookkeeping is concerned, its accuracy is- undisputed, and the competency of his bookkeeper, Michael Fay, is not questioned. In fact, the expert accountant, H. N. Doughty, who spent much time upon these books for the complainant, and who, without question, is competent, certified to the accuracy of the bookkeeping, and that in arriving at his final figures they would be exactly the same as Fay’s if the service account and interest account were added. Statements from these books were furnished in 1897 to 1901, inclusive, and after the administratrix was appointed and a large amount of claims proved in probate court, I think in the year 1901, a meeting of the creditors, the administratrix, and defendant Patrick Noud, was had for the purpose of going over the matters contained in said statements and discussing the claim of this defendant. A large number of creditors were represented, and the statements were submitted and discussed, and an adjourned meeting was had 30 days later for the purpose of ascertaining if any margin could be gotten for the creditors out of this property. Defendant Noud made the proposition to discount his claim to any one who would take the business off his hands, also to pay costs of foreclosure in case he began proceedings. At the second meeting of- the creditors his proposition was not accepted, and no action was taken. He afterwards filed his bill, as hereinbefore stated, to foreclose his securities. The main question to be determined, as appears to the court, before a decree will be set aside upon the bill of review, is whether the showing made upon the proof discloses that there is new matter not within the knowledge of the complainants at the time of the former trial and.not easily ascertained by them, or whether error of law has been committed in granting the decree. Taking the proofs offered on the part of the complainant and giving them their widest possible significance and weight, the court is not able to say that there is matter which' was not within the knowledge of complainant, Emelia Pomeroy Mackin, administratrix, or easily ascertainable by her in time to be presented and heard on former trial. The statements furnished in 1897 to 1901 are practically the same as furnished now from the books and by Mr. Pay, and also it is claimed that the interest account did not accompany all of these statements. It appears to the court that any person with ordinary knowledge and discrimination could take these statements and know that a charge for service had been made by defendant Noud for himself and his bookkeeper.
It is contended, on the part of complainants, that no service account should be allowed, but the mortgagee, Noud, was obliged to take the property and work out his indebtedness without charge. This is the old rule as to trustees, but the later and better authorities do not hold that in cases of this kind, where a mortgagee is in possession for the purpose of realizing from a bankrupt, property sufficient to save him from loss, he must do so gratuitously. The only proof in the case upon the value of his services is to the effect that the charge is reasonable. The other claim as to interest being compounded and added into the decree heretofore made is also a matter which entered into the statements heretofore referred to furnished by Noud, and there is proof in the case that, if interest had been computed according to the rule recognized by our courts in this State, the amount of the balance would have been greater than if computed as was done. These are the two matters upon which the complainants finally rested their case and claimed that this service account and compound interest account amount to the sum of $9,775 and that a decree should be made in their behalf for that amount and for the property sold upon the foreclosure decree; that at the time of the foreclosure defendant Noud was indebted to the estate in the sum aforesaid, and should have turned over the property to the administratrix. In the argument this contention is made on behalf of creditors except as represented by the administratrix and as claimed in the argument. The creditors have not appeared in this case, yet it is apparent to the court that the creditors have carefully gone over the statements rendered at the creditors’ meeting and satisfied themselves that no margin remained for them, and, when it is considered that any amount this court might decree due the estate from defendant would be applied entirely upon the creditors’ claims, their conduct in the premises has considerable weight with this court. The defendant is criticised also on account of dealing with the State Lumber Company, with which he was the largest owner, in purchasing lumber and sawing logs for him in carrying on his business. To any one acquainted with lumber business it is apparent that, when the timber is .practically exhausted and the logs come in very slow, to keep a mill crew on the pay r,oll full time for the few days each month logs could be supplied would not be wise management, especially when at a fair figure the logs could be sawed at any other place. There is no proof, whatever, showing that any of the prices charged were exorbitant, or that the lumber purchased was not worth the price paid. In fact, the testimony is all to the contrary. The court is satisfied from the proofs in the case that there is no new matter such as is necessary and requisite to plant a bill of review upon disclosed in these proofs, and that the case when all in on the part of the complainants does not differ in its results from the case made under the mortgage foreclosure.
‘ ‘ Therefore the prayer of the bill of complaint is denied, and the bill dismissed, without costs, and a decree will be entered accordingly.”

It appears that leave wás granted to the parties complainant here to file a bill in the nature of a bill of review in a foreclosure proceeding instituted in said court May 3, 1902, which, regularly, resulted in a decree which was filed September 6,1902, and was later completed by a sale of the mortgaged property. The foreclosure proceeding involved, as appears from a bill of complaint therein, a certain mortgage, dated January 3, 1895, securing payment of $6,000, and a prior mortgage given September 28, 1887, securing payment of $5,000, assigned to complainant. The indebtedness secured by these mortgages was, all of it, so far as the foreclosure bill stated the facts, evidenced by certain promissory notes. No other indebtedness is mentioned in the foreclosure bill. There was no appearance of defendants in the foreclosure proceedings. The mortgage securing the payment of $6,000 is conditioned also upon paying certain other notes, amounting to $37,000, made by the mortgagor, indorsed by the mortgagee, and renewals thereof and interest and any other indebtedness of the mortgagor upon which the mortgagee was liable as indorser or otherwise. It appears further that the debtor gave to defendant, also, a chattel mortgage, dated January 3, 1895, securing the sum of $43,000, conditioned substantially as is the real estate mortgage of same date. No mention of this security is made in the foreclosure bill or in the bill of review. It is averred in the bill of review that, by virtue of the two real estate mortgages and a certain alleged parol agreement, Mr. Noud took possession of the real estate and personal property of said mortgagor described in the bill and operated and managed the same for the purpose of paying from the net proceeds said indebtedness, turning over any remainder to the debtor. With the answer of defendant to the bill of review is a plea, sptting out the proceedings, including the decree in the foreclosure proceedings, with the further averment that the bill of review was filed more than a year after expiration of the time given to appeal from said decree. This plea was overruled.

It is the theory of the bill of review that upon a proper accounting by Noud it would have been made to appear, in the foreclosure proceeding, that a less sum than was claimed, or no sum at all, would have been found to be due. The debtor, John C. Pomeroy, died in December, 1897, at a time when the defendant had for nearly three years managed and directed his business and such property as he had taken possession of. It is averred that complainants, some of whom were and are infants, were, at the time of the foreclosure proceeding, ignorant of the manner in which defendant had managed the property, were financially unable to defend the foreclosure proceedings, were ignorant of business methods, were relying upon the integrity and business ability of defendant — for which reasons the matters now sought to be brought upon the record were not produced in the foreclosure proceedings.

The testimony clearly supports the finding of the circuit judge to the effect that there is nothing now brought upon the record which the defendants, and especially the administratrix, might not have produced in the foreclosure case. They have since learned nothing which they did not then know, unless it is that upon the facts, then and now known, certain legal propositions might have been advanced for the purpose of decreasing the amount which the complainánt in the foreclosure proceedings showed to be his due. It is beyond doubt that the business was conducted and the property managed, for the first three years, or thereabouts, with the knowledge of the debtor Pomeroy. Thereafter, from time to time, statements were furnished to the administratrix, which she reviewed, showed to, and talked over with the expert bookkeeper formerly employed by her father, the decedent, exhibited to the judge of probate and to various friends. The statements were correct statements. The books were properly and honestly kept.

I have no doubt of the power of a court of chancery, after granting leave to file a bill of review, to dismiss the bill at the hearing if it then appears, contrary to the averments of the bill, that there is, in fact, no new matter or no matter which might not have been produced upon the original hearing; this, without considering to what extent, if any, the omitted matter, if produced, might or would have varied the terms of the decree sought to be reviewed. In the case at bar, it is indicated in the opinion filed that not only is there no proper showing made for opening the foreclosure proceedings, but that if the matter had been produced in the foreclosure proceedings no different result would have followed. This court has many times stated the considerations which should affect the granting or refusing of leave to file a bill of review. Detroit Savings Bank v. Truesdail,, 38 Mich. 430, 443; Sanford v. Haines, 71 Mich. 116; Sherwood v. Savings Bank, 104 Mich. 65; Brown v. Napper, 143 Mich. 636, are some of the cases decided. The rules laid down are to some extent founded in considerations of public policy, as well as those of private right.

A consideration of weight in determining whether relief, if otherwise warranted, should be granted in this proceeding, is the one of the relations of defendant Noud to the property in question and to the owners. It is not always that a trustee is permitted to urge, against the strict examination of his accounts, pll of the rules of legal warfare governing in purely adversary proceedings. His duty to render an account not only mathematically correct, but equitably fair, and to submit his performances of the trust duties to examination, operates, often, to the advantage of the cestuis que trust, who might be, otherwise, considered to be irretrievably in default. This rule is also one largely of public policy.

This consideration has led to a very careful examination of the record. Defendant Noud had never accounted. No bad faith is attributed to him; but, conceding his acts and his bookkeeping both to have been honest, and that he charged no greater sum for interest and no more for his services than he believed himself entitled to receive, what he did had never been subjected to the scrutiny to which he was bound to submit. Such scrutiny implies more than the identification of items and the honesty of the trustee. It involves the test by the rules of law. It appears that no one learned in the law ever applied himself to an examination of the account of the trustee until after the foreclosure sale. No defense was made in the foreclosure proceedings. The sale was made ■on January 19, 1903, pursuant to decree of September 6, 1902, and petition for leave to file the bill of review was filed June 23, 1903. It does not appear that any accounting by the trustee was attempted in the foreclosure proceedings, or that the attention of the court was directed at all to the fact that the complainant in that suit had for years conducted the business of the mortgagor. It does appear that the guardian ad litem for five infant defendants was present and submitted all questions concerning the rights of his wards to the court.

In view of the facts and for the reasons given, the court should proceed to an examination of the case upon the merits. There are but two subjects which require attention. They are the charges made for services of defendant and the charges for interest. As to all other matters of dispute no reason is found for interference.

The record warrants the assumption that the debtor, Pomeroy, knew of the charges made by Noud for the years 1895, 1896, 1897 of $1,000 per annum for services, and from the fact of knowledge ratification and approval may be found. After 1897 there was no one who did in fact assent, and no one who could, by mere implication, be held to have assented, to such a charge. The facts that the statements which were furnished to the administratrix showed such a charge, and that no objection was made thereto, are not sufficient to sustain a charge by agreement. The facts are not like those considered in the case of Quimby v. Uhl, 130 Mich. 198, cited by counsel for defendant. Should such charges for years subsequent to 1897 be for any reason approved ? It is said the charges were reasonable. This may be admitted, if we "consider merely the value of the services of defendant in the management of such a business. His position was, however, a voluntary one, assumed in his own interest, and the services were given in securing payment of indebtedness to himself or for which he was liable to others. It is true that there is no imperative rule of law which requires that such services shall be gratuitous. Defendant has, however, charged and received interest upon all the indebtedness, upon that directly paid, to the time of its payment, upon that paid and carried by himself. It is equitable that he should receive interest paid by him, and interest upon the indebtedness owed to himself. He should not receive both interest and salary.

As to the charges for interest': The fact that Mr. Noud, after paying notes- of the debtor, charged the amounts thereof in an account, would not operate to render such an account an open account, unliquidated and noninterest bearing. And if, in the conduct of the business, he advanced money as was necessary to purchase material and for labor, such sums so advanced would not be unliquidated items and for that reason noninterest bearing. The difficulty is that in any account of the operation of the business there must appear side by side upon the books of account items of money advanced and also of moneys received. So long as there was no actual application of moneys upon the indebtedness owing to Mr. Noud, the interest upon such indebtedness, including advancements, would continue to run. Mr. Noud kept two accounts; one called “J. C. Pomeroy Special Account,” one “ P. Noud, Mortgagee.” It appears further that the books of account were'continued to August, 1904, and that, as to the indebtedness other than the $11,000 involved in the foreclosure proceeding, interest was charged on open account and on notes. It is not possible for this court to state the account. The record must be remanded and a reference made to a commissioner to take and state an account, upon the testimony produced at the hearing and such other testimony as the parties may introduce. In taking such account, all charges for the services of Mr. Noud, after the year 1897, will he disallowed. He will be credited with all interest paid by him. He will be credited with interest upon all advancements made by him, for any purpose, at the statute rate. He will be allowed interest upon the $11,000 of indebtedness represented by the notes secured by the two mortgages at the rate mentioned in the notes. The actual applications of the proceeds of the business to the indebtedness will be made in the accounting as of the dates they were made by him, in fact, as shown by the books of account, and such accounting will include the period to August, 1904. Defendant Noud will, in any event, in said accounting, be disallowed the item of $220.68 for attorney’s fees “after the decree was rendered,” less the statutory fee for solicitor, and actual disbursements of a chancery foreclosure, if such charges are included in said item. If it shall be found that nothing is due to defendant, then fhe entire of said item shall be disallowed. If it shall appear, upon the coming in and confirmation of the account, that there is nothing due to defendant, or, if something being found to be due to him, such sums shall within 60 days after confirmation of said report and account be paid by complainants to defendant, the said decree and all proceedings thereunder shall be set aside and held to be void and of no force or effect. But if (it being claimed by defendant that the property so bid in by him at the foreclosure sale is worth no more than $5,000) said complainants shall not pay to defendant any sum so found to be due to him, within 30 days after confirmation of said account, said decree and sale shall remain in full force and effect. If defendant has been paid in full, and has in his hands any sum realized from said business or said property, he must pay it to the administratrix of said estate.

The decree below is reversed, and a decree will be entered in this court in conformity with this opinion, remanding the record. Complainants will recover the costs of this appeal.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.

       But see Gilluly v. Shumway, 144 Mich. 661, and Barnard v. Patterson, 137 Mich. 633. — Reporter.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    GOLDBERG v. DRAKE.

    Vendor- and Purchaser — Option — Acceptance — Contract — Validity.
    A written option to sell certain described real estate at a certain named sum, signed by the landowner, on which is indorsed an acceptance and promise to pay the balance of the consideration within the time limited by the option, signed by the person to whom the option is given, constitutes a binding contract for the sale cf real estate, though the acceptance was signed by the purchaser on a day subsequent to the date of the option, and in the vendor’s absence.
    Error to Kalamazoo; Adams, J.
    Submitted April 19, 1906.
    (Docket No. 104.)
    Decided July 9, 1906.
    Assumpsit by Samuel T. Goldberg against Soledad Drake on a contract for the sale of certain land. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Osborne & Mills (Thomas W. Browne, of counsel), for appellant.

      Knappen & Flansburg (E. M. Irish, of counsel), for appellee.

       Rehearing denied July -24, 1906.

   Montgomery, J.

This is an action to recover damages for the breach of a contract. The written agreement between the parties was in words and figures following:

‘ ‘ Memorandum of agreement made this 29th day of April, A. D. 1904, between Samuel T. Goldberg, party of the first part, and Soledad Drake, party of the second part, in the manner following: The said party of the first part, in consideration of the sum of $25.00 to him duly paid upon the signing of this agreement, hereby agrees to sell unto the said party of the second part all that certain piece or parcel of land situate in the city of Kalamazoo, county of Kalamazoo, and State of Michigan, and more particularly known and described as follows, to wit: House and premises on West Lovell street, on the south side thereof, the premises being the third lot west of the intersection of Park and Lovell streets.
“ The said party of the first part hereby agrees to sell the said premises to the said party of the second part for the sum of $4,000 (four thousand dollars), and that the said party of the second part may have this option for seven days. The sum of $25.00 paid upon the signing of this agreement to apply upon the sum of $4,000 to be paid in full for said premises.
“Sam T. Goldberg.
“I hereby agree to the above terms and to pay the balance, or the sum of three thousand nine hundred and seventy-five dollars, within seven days.
“ Soledad Drake.”

The undisputed testimony showed, and the circuit judge ■found, that that portion of the contract above the signature' of the plaintiff was signed by plaintiff on the day of its date; that thereafter, and not in plaintiff’s presence, the portion thereunder written and above defendant’s signature was signed by defendant. Defendant afterward gave the plaintiff notice that she had elected not to take the property. The plaintiff tendered a deed of the property, and, on defendant’s refusal to accept the same, instituted this suit. The circuit judge held that the writing constituted a valid contract, binding upon both parties. This holding presents the only question in the case.

We think the ruling of the circuit judge was right. It is true that as originally written the instrument amounted to no more than an option, but afterwards the further clause was added and signed by defendant. If that portion above plaintiff’s signature be considered as an option or offer, the addendum must be considered an acceptance of that offer. It contained an unconditional promise to pay the purchase price within seven days. From that time it cannot be said that the purchase was optional with defendant without doing violence to the language employed. ®

Judgment affirmed.

Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred. ■


author: Carpenter, C. J.

text:
    HAYWARD v. O’CONNOR.
    1. Taxation — Tax Sale — Petition—Description of Land — Sufficiency.
    A petition for the sale of land for delinquent taxes described the land as the “N. E. ¿ of the N. W. ¿ of section 31, plat of Johnson City, town 25 N., range 13 W., village of Thompson-ville,” etc. The land never was a part of the plat of Johnson City. Held, that the words, “plat of Johnson City,” were mere surplusage, did not render the description doubtful, and that the petition conferred jurisdiction to render a decree for the sale of the land.

      3. Same — Setting Aside Sale — Payment op Tax.
    Assurance by the county treasurer, at the time a landowner pays his State and county tax, that there are no other taxes standing against the land, is equivalent to payment of any other tax then due, and, in case of a sale, entitles the landowner to have the sale set aside under section 70 of the tax law (§ 3893, 1 Comp. Laws).
    3. Same — Notice op Sale — Suppioienoy.
    . Where a landowner was notified by letter, more than a year before he began proceedings, that his land had been sold for taxes, he is not entitled to have the sale set aside, though *his proceedings were begun less than a year after the tax purchaser served him with the notice to redeem required by section 140 of the tax law (§ 3959, 1 Comp. Laws).
    Appeal from Benzie; Chittenden, J.
    Submitted April 20, 1906.
    (Docket No. 114.)
    Decided July 9, 1906.
    Petition by Zachariah Hayward against William O’Con-nor, trustee* and James B. Bradley, auditor general, to set aside the sale of land delinquent for taxes. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      Louisell & Nevius, for petitioner.

      Albert McOlatehey, for defendant O’Connor.
   Carpenter, C. J.

Petitioner was the owner of the N. E. of the N. W. i of section 31, town 25 N., range 13 W., situated in the village of Thompsonville, in the •county of Benzie, in this State. At the annual tax sale held in 1902 this property was sold for the nonpayment of village taxes in pursuance of a decree made by the circuit court for the county of Benzie, in chancery. It was bid off by the State and subsequently sold to defendant O’Con-nor. A deed was issued to him on the 15th of May, 1903. August 9, 1905, these proceedings were instituted, whereby petitioner asked the said circuit court for the county of Benzie, in chancery, to set aside said sale. Defendants were duly served, their answers filed, and a decree made dismissing said petition. From that decree petitioner appeals.

He contends that the proper practice was not pursued in hearing his petition in the lower court, and urges that for that, and for many other reasons, the decree appealed from should be reversed. We need not consider those reasons, because, as we shall endeavor to show, petitioner was not entitled to relief.

, The grounds upon which petitioner asks for the vacation of the decree ordering his land sold are two, viz.:

(1) That the court had no jurisdiction to pronounce the decree.

(2) That the taxes on the land had been paid.

We will consider each of these questions separately.

1. Had the court jurisdiction to render the decree? The ground upon which petitioner attacks the jurisdiction of the court is that the land was not properly described. The land was described as the N. E. of the N. W. ¿ of section 31, plat of Johnson City, town t25 N., range 13 W., village of Thompsonville, State of Michigan, county of Benzie. The only defect in said description is that the words “ plat of Johnson City” should have been omitted. Petitioner avers that “in truth and in fact the said description of land never was a part of the plat of Johnson City.” The words “ plat of Johnson City ” were surplus-age, and did not render the description doubtful. The court, therefore, had jurisdiction.

2. Was petitioner entitled to relief upon his claim that the taxes had been paid ? Petitioner does not claim that the taxes were actually paid. Indeed, he says that they had not been paid; but he avers that the county treasurer had assured his grantor, at the time the latter was paying the State and county taxes against the land,' that there were no other taxes against the same. This we have held was equivalent to payment. Kneeland v. Wood, 117 Mich. 176; Hoffman v. Auditor General, 136 Mich. 689.

The law which entitled petitioner to the order asked for

is found in section 70 of the general tax law (see section 3893, 1 Comp. Laws), and reads as follows:

Provided further, That no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation. In such cases the owner of such lands may move the court at any time within one year after he shall have notice of such sale to set the same aside and the court may so order upon such terms as may be just.”

The record in this case shows, and petitioner concedes, that on the 13th of September, 1903, nearly two years before these proceedings were instituted, he received a letter from defendant O’Connor informing him of the sale in question. ' Later, on the 12th of August, 1904, defendant O’Connor served the notice requiring petitioner to redeem as required in sections 140 and 141 of the general tax law (sections 3959, 3960, 1 Comp. Laws) of this State.

Petitioner contends that not until this second notice was served did he have notice of such sale. This contention is unsound. When the owner of land has notice — no matter how he obtains that notice — that his land has been sold for taxes, he must, if he desires to have- the sale set aside by the circuit court, take proceedings within one year. This the petitioner did not do.

The decree dismissing the petition is affirmed.

McAlvay, Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    WARD v. TOWNSHIP OF ECHO.
    1. Taxation — Assessment—Real Estate — Standing Timber.
    Standing timber reserved in a conveyance of the fee of land may be assessed to the grantor separately from the fee and assessed as real estate.
    2. Same — Recovery of Tax Paid — Burden of Pro'of.
    After lands had been conveyed, reserving the timber, the fee was assessed to the grantor, the township officers having notice of the sale. The grantor, after paying the tax under protest, brought suit to recover it, and the township sought to defend on the ground that the tax was properly assessable upon the grantor’s reserved interest. Held, that the ‘burden ' was upon the township to show that there was timber upon the lands properly assessable to the grantor.
    Error to Antrim; Mayne, J.
    Submitted May 2, 1906.
    (Docket No. 11.)
    Decided July 9, 1906.
    Assumpsit by Willis C. Ward, Franklin B. Ward, and George K. Root, executors and trustees under the last will and testament of David Ward, deceased, against the township of Echo for taxes paid under protest. There was judgment for defendant, and plaintiffs bring error.
    Reversed, and judgment entered for plaintiffs..

      Clayton H. Bailey (Chamberlain, Guise & Turner, of counsel), for appellants.

      Elisha N. Clink (Fitch B. Williams, of counsel), for appellee.
   Montgomery, J.

The plaintiffs are executors and trustees of the estate of the late David Ward. At the time of his decease Mr. Ward owned a railway extending through defendant township, and was the owner of the fee for 50 feet in width on each side of the center line of the railway. In the years 1898, 1899, and 1900 the land was assessed against Mr. Ward by description, and the taxes paid. In January, 1901, steps were taken to incorporate the Detroit & Charlevoix Railroad Company to take over the railroad belonging to the estate, and a deed was made reserving and excepting all of the timber standing, lying, or being on the land conveyed, with right to cut and remove the same within three years. The land was assessed to the plaintiffs in 1901 as theretofore. There was no appearance before the board of review. A levy was made upon plaintiffs’ property, and the plaintiffs, contending that the land was not subject to assessment and that the only tax required of the company was a tax on earnings, paid the tax under protest, and brought this action to recover it of the township.

It is clear that, under the deed to the railroad company, there was a reservation of an interest in these lands which, if not taxable to the Ward estate, would escape taxation altogether. It is also clear that, in such circumstances, the standing timber may be assessed separately from the fee and assessed as real estate. Cooley on Taxation (2d Ed.), p. 366 et seq.; People v. Com’rs of Taxes, 82 N. Y. 462; County of Pine v. Tozer, 56 Minn. 288.

Plaintiffs cite Fletcher v. Township of Alcona, 72 Mich. 18, as authority for the proposition that the timber on lands is not to be assessed separately, but should be included in the assessment of the fee in the land. What was involved in the case was an assessment of the timber as personalty in a township in which the owner was not subject to assessment upon personal property. The case is not authority for the proposition that, where an interest in land has been conveyed and constitutes the only assessable interest in the land, it shall wholly escape taxation, through the State being disabled from taxing the remaining interest in the land to the owner of such reserved interest. The case of County of Pine v. Tozer, supra, is authority that such an interest is taxable. See, also, Johnson v. Roberts, 102 Ill. 655; Newaygo Portland Cement Co. v. Township of Sheridan, 137 Mich. 475.

The interest of the plaintiffs being assessable, it follows that if any such interest was, in fact, assessed it was incumbent upon them to appear before the board of review and show wherein the taxable interest was excessively assessed. Williams v. City of Saginaw, 51 Mich. 120..

It is contended by plaintiffs that the evidence fails to' show that there was timber on the lands assessed in the defendant township. This is conceded by the defendant, but it is claimed that the burden rests upon the plaintiffs to show that there ivas not. If the interest of the Ward estate had been assessed as an interest in the timber the presumption of regularity might obtain, but the evidence of the supervisor shows that the attempt was to assess the fee of the land on the assumption that no title had passed to the railroad company. - While, if the fact appeared, it is possible that the assessment might be upheld on the ground that, by accident and not by intent, it covered a special title or interest of the estate, we think plaintiff has the right to insist upon proof that shows the fact to be so. Neither the failure of the company to record its deed, nor its delay in filing the map could affect the rights of its grantors after they had given notice to the supervisor that the title had passed to the railroad company.

The judgment is reversed, and a- judgment will be entered for plaintiffs on the findings, with costs of both courts.

McAlvay, Blair, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J. Carpenter, C. J.

text:
    BLAIN v. CHIPPEWA CIRCUIT JUDGE.
    1. Mandamus — Compelling Dissolution op Injunction — Condition Precedent.
    A motion, to dissolve a preliminary injunction is a condition precedent to the issuance of a writ of mandamus compelling its dissolution.
    2. Officers — De Facto Officers — Intrusion by Claimant.
    A candidate for a city office, who is in possession of it by virtue of a holding over, and under a declaration of election by the common council acting as a board of canvassers, is a de facto officer, though there is a bona fide dispute between him and a rival candidate, and his rival is not justified in attempting to take possession of the office by violence.
    3. Same — Injunction Against Intrusion — Mandamus to Dissolve — Propriety.
    A candidate for a city office to succeed himself was declared elected by the outgoing council, and filed his bond, continuing in possession of the office. The incoming council declared ' ■ his opponent elected, and he filed his bond, and forcibly took possession of the office and such of the papers thereof as he could secure. On a bill by the officer claiming to hold over, a preliminary- injunction was issued restraining the intruder from interfering with complainant’s possession of the office until the title could be tried in a proper proceeding for that purpose. Held, that the court had jurisdiction to issue the injunction, that it was no abuse of discretion to refuse to try title to the office in that proceeding, and that this court would not try such title in a proceeding in mandamus to compel the dissolution of the injunction, though it was claimed that the title depended solely on a construction of the city’s charter set out in the proceedings.
    Carpenter, C. J., and MoAlvay and Blair, JJ., dissenting.
    Mandamus by Thomas Blain to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate a temporary injunction.
    Submitted May 26, 1906.
    (Calendar No. 21,721.)
    Writ denied July 9, 1906.

      M. M. Larmonth and M. F. McDonald, for relator.

      Oren, Webster & Carleton and F. T. McDonald, for respondent.
   Hooker, J.

The relator and one Hecox were opposing candidates for the office of recorder of the city of Sault Ste. Marie at the recent election. Hecox was recorder last year. The returns of inspectors showed that Blain received 948 and Hecox 943 votes. The old council met as a board of canvassers April 5, 1906, and refused to canvass these returns, for the reason that Hecox had demanded a recount in three wards. A resolution was adopted granting the recount, and a committee was appointed to make the count. Blain, by counsel, protested against this action. The council was adjourned to April 7th, when the committee reported that on April 6th they had been enjoined, at the suit of Mr. Blain, from opening the boxes or counting the ballots by a writ of injunction, allowed by a circuit court commissioner, and had not, therefore, made the recount. They had, however, taken the testimony of two inspectors in the second ward (one of the wards to be recounted under the resolution), and that it showed that about 30 ballots were cast which were not initialed by the proper inspector, and to the best of their recollection 8 were cast for Mr. Hecox and 22 for Mr. Blain, and that after inspecting the returns of the inspectors and taking into consideration the aforesaid testimony the council found that Hecox had received 935 votes and Blain 926. Thereupon the council passed a resolution declaring Hecox elected.

On April 16th the new council met, and the relator, Blain, presented a written request that the council forthwith canvass the returns of the inspectors, and declare him elected to the office of recorder, which was done. He filed an oath of office and a bond, and claims to have been in full possession of the office and performing all of the duties of recorder, when a bill was filed by Hecox, upon which the circuit judge made an order to show cause why a preliminary injunction should not issue to restrain intrusion by the relator, into said office, until the title to said office should be lawfully determined, in a proper proceeding, and upon the hearing made the following order:

“Defendantshaving been heretofore ordered to show cause why an injunction should not be allowed as prayed for in said bill of complaint, and hearing thereon having been adjourned to this day, and the said defendants, by way of showing cause, having filed a sworn answer to said bill of complaint, and said matter coming up for consideration upon said bill and answer, and after hearing M. M. Larmonth, solicitor for defendants in their behalf, and Horace M. Oren, one of the solicitors for complainant on the latter’s behalf; it appearing that on the 17th day of April, A. D. 1906, said complainant was in full possession of the office of city recorder of the city of Sault Ste. Marie, its books, records, and property, engaged in the performance of the duties of said office without obstruction, aijd that on said date said defendants, without process or order of any court, forcibly broke open the door of said office, took possession of such books and papers as were not in the safe, and forcibly ejected complainant from the room, in which said office is located, and by force and threats prevented him from entering said office and performing his duties therein; therefore in restraint of unseemly conduct and to restrain invasion by force, without passing upon the de jure rights of the contestants herein, it is ordered that a peremptory writ of injunction do forthwith issue under the seal of this court commanding the said Thomas Blain and George Barr, their counselors, attorneys, solicitors, and agents and each and every one of them, that they forthwith desist from further taking possession of the books, papers and property appertaining and belonging to the office of recorder of the city of Sault Ste. Marie; that they desist from preventing said Clyde W. Hecox, complainant herein, from keeping possession thereof; that they desist from excluding said complainant from the rooms of the office of recorder of the city of Sault Ste. Marie; and that they desist from any interference with said complainant in his full performance of all the duties of the office of recorder of the city of Sault Ste. Marie, until the rights of the said Clyde W. He ©ox not to
hold said office is judicially declared in a proper proceeding brought to that end.
“Dated April 25, A. D. 1906.”

The relator thereupon obtained an order requiring the circuit judge to show cause why a mandamus should not issue to compel him to dissolve said injunction, to which he made answer.

We do not discover that a motion was made to dissolve the injunction before application for a mandamus was made. This was a formal prerequisite; see Stenglein v. Saginaw Circuit Judge, 128 Mich. 440. But counsel seem to have raised no question over the practice, and, inasmuch as the injunction was allowed after a hearing upon a preliminary order to show cause, we dispose of the cause on other grounds. It is not to be considered a precedent that will be followed hereafter, however.

The return of the respondent states in full the proceedings of the council whereby Hecox was declared elected, and that the answer of relator to complainant’s bill did not question the facts stated in proceedings, and that in said answer it was admitted, as stated in the bill, that upon the declaration of Hecox’s ■ election, on the 7th day of April, 1906, he executed and filed in the office of city recorder the constitutional oath of office, and executed an official bond as required by law; the same and the sureties thereto being approved by the council at its April 7, 1906, session. The return shows, further, that the following was made to appear, and respondent took it as true:

“That on the 17th day of April at about 11 o’clock in the morning said Blain appeared at the office of said city recorder with one George Barr, a deputy sheriff in and for said county, without process, or any order of court entitling them to take possession of said office; that the said Thomas Blain thereupon demanded said office, and, upon Hecox’s refusal to turn the same over, with the aid of Barr forcibly broke open the door of said office, took possession of such of the books and papers of said office as were not in the safe, and forcibly ejected complainant from the room in which said office is located, and by force and threats prevented said Hecox, his deputy, and clerk from entering said office and from further performing the duties thereof;” and that, “it did not appear by the pleadings, exhibits, affidavits, etc., before respondent at the tirhe of the hearing upon said application for a restraining order, all of which are attached to relator’s petition, that said relator Blain, at the time of the exhibition of said bill of complaint, had obtained possession of all the books, papers, records and property appertaining to said office; but it did appear that neither Blain nor Hecox were at time of the exhibition of the bill of complaint, in full ■possession of all of the property, records, etc., although Blain was contending that he was, but that there had been a legal and physical contention over the office, and that Blain had by force entered the office room and put Hecox out and had actually obtained possession of such books and papers in the office room as were not in the safe. And it appearing from paragraph 7 of complainant’s bill that said Blain was by force and threats preventing Hecox, his deputy, and clerk from entering said office and from the further performance of the duties thereof, and that there was a probability of unseemly conduct unless the court should proceed to prevent it, the preliminary injunction was granted, the court taking the view that his authority and duty in the premises was governed by the case of Stenglein v. Saginaw Circuit Judge, reported in 138 Mich. 440.”

From the foregoing statement it appears that there was a bona fide dispute as to the title to this office; that Hecox was in possession of it, by virtue of a holding over, and under a declaration by the common council — i. e., the board of canvassers. He was, therefore, a de facto officer, and, being a de facto officer, his competitor was not justified in attempting to take possession of the office by violence.

It may be said that chancery should not interfere by injunction in cases where the bill not only fails to show a prima facie right to the office in the complainant, but, on the contrary, shows such right in the defendant. In the present case it is claimed that the charter makes the new council the judge of the election of the recorder, and that, its action being final, the bill on its face shows that the complainant was not, and that defendant was, entitled to the office, and therefore we should compel the dissolution of the injunction. On the other hand, it may be and is said that this is not a correct construction of the charter,' and that there may be doubtful questions of law as well as of fact, and that there may be an erroneous decision of the former, as well as of the latter, requiring correction by an appellate court, and that there is as much propriety in protecting a complainant’s interests by injunction in the one class of cases as the other, and there is force in the claim that in such a case the court is not without jurisdiction to issue the writ, and that being so, this court should not .invariably compel the dissolution of the injunction, where its opinion of the disputed question of law differs from the claim of the complainant. This court has held, in many cases, that where the point in dispute, and on which the right to an injunction must turn, is a question of law, it may compel dissolution. Van Norman v. Jackson Circuit Judge, 45 Mich. 204; City of Detroit v. Wayne Circuit Judge, 79 Mich. 384; Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (32 L. R. A. 481); Board of Sup’rs of Wayne Co. v. Wayne Circuit Judges, 106 Mich. 166; Thomas v. Kent Circuit Judge, 116 Mich. 106; Kelsey v. Wayne Circuit Judge, 120 Mich. 457; Stenglein v. Saginaw Circuit Judge, 128 Mich. 440; Central Bitulithic Paving Co, v. Manistee Circuit Judge, 132 Mich. 128. It has not held, however, that the writ must issue in every such case. See Kelsey v. Wayne Circuit Judge, supra. And we can imagine cases where it would be unjust to enforce, as a hard and fast rule, so technical a practice; e. g., where the bill might be cured by amendment. In the case of Selchow v. Baker, 93 N. Y. 59, it was held that:

“While, when a complaint shows no cause of action, the granting of a preliminary injunction is an error of law, which may be reviewed on appeal, the case must be very clear to justify the court in deciding the merits of the controversy on a mere motion, * * * and the court would ordinarily decline in a case presenting any serious question, to deprive either party of the privilege of having the merits of his case deliberately heard and passed upon on appeal from the final judgment.”

In the present case it may be said that a construction of the charter would settle whether the action of the new council is final and conclusive, and, if so, it must establish relator’s right to the office; hence the propriety of this temporary injunction must finally rest on the determination of this one question of law. If it be conceded that this is true, it cannot be denied that the complainant was a de facto officer as the court held, and that the court had power to protect him in his custody of the office, until his right should be tested in a proper forum and proceedihg, whether the result of such a proceeding must ultimately turn upon a question of law, or a mixed question of law and fact, and that to issue this writ upon the ground stated, would practically try the title to this office, which he was not disposed to do in that proceeding. To the suggestion that the injunction should be dissolved upon the ground that Blain and not Hecox is the de facto officer, we reply that this claim can only rest upon the proposition that, while Hecox was unquestionably an officer in possession, claiming title to the office, and performing his duties whenever occasion presented, Blain, by virtue of a trespass and the acquiescence of his friends, whereby he excluded Hecox from the official place of business, and in part of the property belonging to the office, and proceeded to perform its duties when opportunity offered, thereby became the de facto officer instead of He-cox, and that therefore this injunction could not be lawfully issued, because restraining him from performing the duties of the office would be ousting a de facto officer. We are of the opinion that this is unduly dignifying an attempt at forcible usurpation, and that Hecox is the de facto officer, and that if his bill made a prima facie case in the opinion of the circuit judge, it was a proper exercise of discretion to restrain interference with Hecox’s performance of duty by Bláin. Certainly the question of who is really the de facto officer cannot depend alone upon the ability of one to forcibly exclude an officer from his place of business, and while holding him out by force perform its duties to the extent of doing such business as is presented. Such methods of obtaining possession of a contested office would have the advantage of apparent simplicity, but would not tend to the preservation of the public peace. This opinion rests upon tho belief that the bill shows Hecox to be the de facto officer, in possession of the office when the application for injunction was made.

The case of Stenglein v. Saginaw Circuit Judge, supra, cited by the learned circuit judge, is on all fours. There the right depended upon the question of the constitutionality of a law. Here it depends on the construction of the law. In each case the judge, in his discretion, refused to enter upon the question of the right to the office, enjoining intrusion until settled by the proper proceeding. We think that this was not an abuse of discretion, and that we should not interfere with his discretion in that regard, by compelling a dissolution of his injunction, -thereby practically trying the title to an office upon mandamus, when we cannot say that the circuit judge erred in refusing to do so on a motion to dissolve an injunction which he had jurisdiction to allow.

The writ is denied.

Grant, Montgomery, Ostrander, and Moore, JJ., concurred with Hooker, J.

Carpenter, C. J.

(dissenting). One Clyde W. Hecox was recorder of the city of Sault Ste. Marie for the year ending April 9, 1906. He was again a candidate for said office and relator was his opponent at the municipal election of said city held on the 2d of April, 1906. According to the returns made by the inspectors of election, relator was elected by a majority of five votes. The old council — whose term of office expired April 9th — sitting as a board of canvassers, canvassed the returns and gave a certificate of election to Hecox, who gave a bond and duly qualified. It is not material to inquire whether this action of the old council was legal or illegal, because, in my opinion, as will hereafter appear, relator’s right to the office is conclusively determined by the action of the new council.

At a meeting of the new council — wnose term of office commenced April 9, 1906 — held on the 16th day of April, a resolution was passed declaring relator duly elected to said office of recorder. Relator gave a bond and took the oath of office, and on the next day, viz., April 17, 1906, by the aid of a deputy sheriff, forcibly evicted said Hecox from office and took possession of the same. On the same day Hecox filed an injunction bill in the Chippewa circuit court. On the 23d of April a motion for an injunction was heard, based upon said bill and defendant’s answer thereto, and respondent thereupon ordered an injunction to issue commanding said relator to:

“ Forthwith desist from further taking possession of ihe books, papers and property appertaining and belonging to the office of the recorder of the city of Sault Ste. Marie, * * * from preventing said Clyde W. Hecox, complainant herein, from keeping possession thereof, * * * from excluding said complainant from the rooms of “the office of recorder of the city of Sault Ste. Marie, * * * and from any. interference of said complainant in his full performance of all duties of the office of recorder of the city of Sault Ste. Marie until the right of the said Clyde W. Hecox not to hold said office is judicially declared in a proper proceeding brought to that end.”

Relator then instituted these proceedings in this court, seeking a mandamus to compel respondent to vacate the order granting said injunction.

■ It is contended that respondent’s action is justified by our own decision in tenglein v. Saginaw Circuit Judge, 128 Mich. 440. In that case the lower court had issued an injunction at the instance of a de facto officer in possession of the office restraining a claimant from interering with that possession until he, the claimant, should entitle himself to do so by proper legal proceedings, and that court refused to issue a mandamus compelling the trial court to vacate said injunction. That' decision does not, in my judgment, apply. In that case the injunction prevented an incumbent being forcibly dispossessed from an office. In this case the injunction reinstated an official who had been forcibly dispossessed. As this last statement of fact may not be conceded, I will undertake to show its truth. In his petition for a mandamus, relator avers:

“By virtue of the act of said common council (viz., the resolution declaring his election as recorder) your petitioner did on the 17th day of April, 1906, take possession of the books, papers, and records of said office, and enter upon the duties of the office of city recorder and was duly recognized as such recorder by said common council, comptroller, treasurer, and all other city officials.”

Respondent in his answer does not deny this averment and contents himself with saying:

“The allegations therein are not in accord with the facts presented to respondent in the bill of complaint * * * and the answer and the accompanying exhibits and affidavits. All of which are attached to relator’s petition.”

He then points out certain facts stated in the pleadings which do not accord with the above averment. Those facts are as follows (to save space I have undertaken to state them in my own language) :

1. That Hecox, after being declared elected, duly executed an official bond which was duly approved by the old council.

2. That Hecox was his own successor as recorder; that he entered upon the succeeding term, April 9, 1906, and from that time was in possession of said office, its books, and records; that he was engaged in the performance of the duties thereof without obstruction or objection until April 17, 1906.

3. That on the 17th of April, 1906, relator forcibly broke open the door of the recorder’s office and took possession of such books and papers of the office as were not in the safe, and forcibly ejected complainant (Hecox) from the room in which said office is located, and by force and threats prevented said -Hecox, his deputy and clerk from entering said office, and from further performing the duties thereof.

4. “ That it did not appear by the pleadings, exhibits, and affidavits, * * * all of which are attached to relator’s petition, that said relator, at the time of the exhibition of said bill of complaint, had obtained possession of all the books, papers, records, and property appertaining to said office, but it did appear that neither Blain nor Hecóx were, at the time of the exhibition of the bill of complaint, in full possession of all the property, records, etc., although Blain was contending that he was; but that there had been a legal and physical contention over the office, and that Blain had by force entered the office room and put Hecox out, and had actually obtained possession of such books and papers in the office room as were not in the safe.”

It will be noticed — and this is the point I wish to emphasize — that there is no denial that relator entered upon the duties of the office and was duly recognized as recorder by the common council, the controller, treasurer, and all other city officials, and Sup. Ct. Rule 13 which requires us to take every material averment in the petition not answered as true, compels us to declare that, at the time the proceedings were taken in the lower court, relator was performing the duties of the office, and recognized as recorder by the city officials. We would reach the same conclusion by considering the papers upon which the mor tion was heard in the lower court. The bill avers that relator:

‘ ‘ Forcibly broke open the door of said office, took possession of such of the books and papers of said office as were not in the safe and forcibly ejected complainant from the room in which said office is located, and by force and threats prevents complainant (Hecox), his deputy, and clerk from entering said office and from the further performance of the duties of said office.”

The answer states that defendant (relator) is now in full possession of the said office and fully recognized as said recorder by the common council, the controller, treasurer, and all other city officials * * * “and that he is exercising all the duties of said office.” I conclude, therefore, that, at the time the order complained of was made, relator, though not possessed of all the official records and books, was performing the duties of the office of city recorder.

The learned counsel for respondent contends that Hecox, notwithstanding this forcible eviction, continued to be a de facto officer. If so, he was an officer de' facto dispossessed of his office, asking a court of equity to reinstate him in that office. Upon what ground will equity reinstate him ? Respondent made the order complained of— which evicted relator from office and installed Hecox therein — without determining that relator had no right to remain. (He, respondent, was of the opinion that he could make this order without determining relator’s right to remain in office.) This, in my judgment, was an error. .To dispossess one without inquiring into his right of possession is not, in my judgment, a legitimate exercise of judicial power.

“Judicial proceedings cannot be valid unless they proceed upon an inquiry and render judgment only after trial.” Cooley on Constitutional Limitations (7th Ed.), p. 503.

Nor is there in Stenglein v. Saginaw Circuit Judge, heretofore cited, anything opposed to this reasoning. There we held that the circuit court may, without determining conflicting rights to an office, prevent a claimant thereto from forcibly evicting an actqal incumbent. That case is not an authority for the very different proposition —the proposition involved in this case — that a court may evict one who has obtained an office without determining his right to remain in said office. Though a court may, without determining rights, prevent one from asserting his rights, it cannot, in my judgment, for the reasons I have already stated, dispossess him of rights without making such determination. If this distinction did not exist, we would not have held, as we have (see People v. Simonson, 10 Mich. 335), that, without an opportunity to be heard, one cannot by injunction be dispossessed of property.

But it is said that respondent could not determine that relator had, and that Hecox had not, the fight to the office because a court of law and not a court of equity should determine the title to an office. The principal ground upon which a court of law determines title to an office is that:

“ Proceedings upon information in the nature of a quo warranto * * * is the only remedy in which judgment of ouster can be had against an actual incumbent, and the person rightfully entitled can be put into possession of the office.” High on Extraordinary Legal Remedies (3d Ed.), § 77.

If this principle is violated when a court of equity, in pursuance of a judicial determination, ousts an incumbent from office and installs another therein — and it certainly is — it is more obviously violated if that ouster is made without such determination. ■ We then have two grounds for declaring that the order complained of was erroneous: (a) That it ousted the rightful incumbent from office (this we will endeavor to show hereafter); and (b) that this ouster was effected by a court of equity and not by a court of law. To urge that relator’s only remedy is to resort to quo warranto proceedings — which is a new and independent proceeding — is to altogether' deny the authority of this court to correct the error of the lower court. Surely it has that authority. Can that error be corrected by issuing a writ of mandamus ? If this error is not corrected until the case can be disposed of in this court upon appeal from a final determination, probably more than one-half of relator’s term of office (two years) will have expired. In the meantime he is excluded from an office to which he has an unquestioned right, and the duties of that office are performed and the emoluments received by a defeated candidate. Nor should we forget that it is the right of the people of Sault Ste. Marie to have the office of recorder filled by the person they have elected, and, as hereafter appears, it is conclusively determined that they elected relator. To exclude him from that office is to deprive them of a right. In short, this is a case in which delay will work a mischief which I think may properly be called irreparable. It is therefore a proper case for the issuance of a writ of mandamus. Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270.

The suggestion is made that we ought not, in issuing this writ, to determine relator’s right to the office. To this I cannot assent. Relator is not, in my judgment, entitled to a writ of mandamus unless he had a right to the office from which the order complained of ousted him. As already shown, that order was improperly made because the -ouster should have been made by proceedings in the nature of a quo warranto and not by injunction in a court of equity. This impropriety does not, however, entitle relator to relief. He is not entitled to have that order vacated by writ of mandamus unless it deprived him of some right. The only right of which it deprived him was the right to remain in office. To grant the mandamus applied for we must therefore determine that relator had a right to remain in the office from which he was ousted.

It has been suggested that the rule heretofore referred to, viz., “ that quo warranto proceedings is the only remedy by which judgment of ouster can be had against an actual incumbent” prevents our making that determination. If so, Hecox is, by reason of this rule, permitted to retain rights which he obtained by its violation. To issue the mandamus asked for will not, in my opinion, violate the rule. It will merely compel the vacation of an order which does violate it. It is true that in determining that the order of ouster was improperly made we determine its impropriety. This we must do. It is also true that in reaching that determination we determine the questions necessarily involved. This, too, we must do. One of those questions is this: Had relator a right to the office from which he was evicted ? This, as will hereafter appear, is a pure question of law which we can in this proceeding determine just as accurately as in any subsequent proceeding. This is a question which should be speedily determined, and I think it is our duty to determine it now.

I do not think that the rule heretofore referred to, viz., that an ouster from office should be effected by quo warranto proceedings, excuses us from determining all questions necessarily involved in any case which it is our duty to decide. See School District v. Weise, 77 Minn. 167.

In Lawrence v. Hanley, 84 Mich. 399, the right of an incumbent to remain in office from which an effort was made to evict him was determined in mandamus proceedings.

In Dew v. Judges of Sweet Springs, 3 Hen. & M. (Va.) 1, the right of an incumbent to an office from which he had been wrongfully evicted was determined in a mandamus proceeding, and he was restored to office by the writ of mandamus.

It follows that relator should not have been evicted from office as he was by, the order under consideration if he had the right to remain therein, and that such right should be determined in these proceedings. If relator had the right to the office, and if Hecox had not, the circumstance that the former obtained possession of the same by force is, in my judgment, altogether unimportant. If relator, in taking this forcible possession, violated any of Hecox’s legal rights he did not violate his right to remain possessed of the office, because Hecox did not have that right. If Hecox had no right to the office, his eviction therefrom clearly did not give him such right.

Had relator the right to remain in office ? His claim to that right is based- — -not on the fact that according to the original returns he received a majority of the votes cast— but on the resolution of the new council declaring him elected. This claim is well founded if that council had authority to determine who was elected recorder of Sault Ste. Marie. Had it that authority ? That depends upon the proper construction of the city charter. We quote from chapter 6 of said charter [Act No. 533, Local Acta 1887]:

“Section 1. The legislative authority of the city shall be vested in a council consisting of the mayor, two aider-men elected from each ward, and the city recorder.. * =h *
“Sec. 4. The recorder shall be clerk of the council, but shall have no vote therein. * * *
“ Sec. 5. The council shall be judge of election returns and qualifications of its own members.”

The language of section 5 above quoted is substantially like that of section 5 of article 1 of the Constitution of the United States, which reads:

“ Each house shall be the judge of the elections, returns and qualifications of its own members.”

It is also like that of section 9, art. 4, of our State Constitution, which reads:

“Each house shall * * * judge of the qualifications, elections and returns of its members.”

As this language in the Constitution clearly made each house the final judge of the election of its members, so we have no doubt that section 5, above quoted, made the council of the city of Sault Ste. Marie the final judge of the election of its members. We will spend no time to prove that the council thus made the judge of the election of its members was the new council and not the old. That is settled by Hilton v. Grand Rapids Common Council, 112 Mich. 500.

This brings us to the question: Is the recorder one of “its own members,” of whose election the council is made the judge? This depends upon the legislative intent. The question is whether the recorder is one of the members of the council in the sense in which the legislature used the word “ members,” and not whether he is actually a member of the council. This distinction is important because there is obviously a difference between the voting council consisting of two aldermen from each ward, and the council defined by the legislature consisting of those aldermen, the mayor, and recorder. And there is just as obviously a distinction between members of the former council and members of the latter council. It is claimed that by other provisions in the very chapter of the charter from which the above provisions are quoted the legislature has recognized this distinction. For instance, section 2 of said chapter [as amended by Act No. 460, Local Acts 1899] provides that certain ordinances or resolutions shall not go into effect unless “ passed by a two-thirds vote of all the members of the common council elect, exclusive of the mayor.” And section 11 provides that “the council may provide by ordinance for the appointment of standing committees of its members.” Other illustrations might be added. It is claimed that, in these instances, the legislature used the term “ council” in a restricted sense, intending to describe the voting council, and that it used the term “ members” of the council intending to describe only the members of the voting council. The contention is made that the legislature used the term “ members ” in this restricted sense in the section in which it made the council judge of the election “of its own members.” To this I cannot agree. When the legislature said, in section 1 of chapter 6 of the charter: “ The legislative authority of the city shall be vested in a council consisting of the mayor, two aldermen elected from each ward, and the city recorder,” it clearly indicated that all the officials named were members of the council, for clearly the officials of whom the council consists are its members. In section 1 of chapter 6, heretofore quoted, the legislature names the officials which in its opinion are members of the council. It says in the opinion of the legislature, the mayor, the recorder, and the aldermen are members of the council. This, then, is a legislative definition of “the members” of the council. Though the legislature did in some instances in this very chapter disregard this definition, its intention to disregard it generally cannot be presumed. On the contrary, it must be presumed that the legislature generally regarded its own definition. Indeed, I think it should be presumed that it gave this definition to furnish a key for construing the act. So, when this word is used, it is to be presumed that the legislature used it according to its own definition, unless the contrary appears. As there is nothing to indicate the contrary, it is to be presumed that the term “members,” in section 5, was used according to the legislative definition, and that it described the recorder and mayor as well as the aldermen, and that the council was therefore made the final judge of the election of each of these officers.

It is thought to be an objection to this construction that it permits those who vote in the council, viz., the aider-men, to determine the election of those-who do not vote in the council, viz., the mayor and recorder. I am unable to perceive the force of this objection. There is nothing anomalous in this circumstance. It existed in Weston v. Kent Probate Judge, 69 Mich. 600, where the power of the common council to determine finally the election of a mayor, except “ when the votes of the other members are equally divided,” was upheld. Nor do I think that any fundamental principle is violated by making the council of a municipality the final judge of the election of its own clerk. It follows that the determination by the new council that relator was elected recorder was final, that after that determination he alone was the rightful recorder, that he had a right to remain in the office from which the order in question evicted him, and that a mandamus should issue compelling respondent to vacate said order.

McAlvay and Blair, JJ., concurred with Carpenter, C. J.


author: Moore, J.

text:
    LA LONDE v. TRANS ST. MARY’S TRACTION CO.
    1. Street Railroads — Personal Injuries — Negligence—Question for Jury.
    In an action against a street railroad company for injuries to a traveler resulting from collision, testimony that plaintiff had occasion to cross defendant’s track with a loaded wagon, when the car was 300 feet away, and thought he had ample time to cross, and would have crossed in safety had the motorman done his duty, makes a case for the jury.
    2. Evidence — Experts—Examination—Assumption of Pacts.
    A question to an expert as to what rate of speed a street car was going at the time of an accident, which he did not see, is properly overruled where the question does not assume that he heard all the testimony, and it does not appear what part of the testimony he did hear, nor that he had knowledge of the weight of the car, its momentum, or of the weight of the load with which it collided.
    Error to Chippewa; Steere, J.
    Submitted June 7,1906.
    (Docket No. 38.)
    Decided July 9, 1906.
    Case by Joseph La Londe against the Trans St. Mary’s Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Oren, Webster & Oarleton and John H. More, for appellant.

      F. T. McDonald (M. M. Larmonth, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment for injuries done him by a street car belonging to defendant corporation. The case is brought here by writ of error. Appellant’s counsel state the issues to be: First, that on plaintiff’s own statement of his case appellant was entitled to a direction that plaintiff was guilty of contributory negligence, as a matter of law, and could not recover; and, second, that error was committed in refusing to permit the witness Stadley to answer a question as to his opinion of the speed the car was going at the time of the collision.

Taking up these issues in the order presented: The plaintiff while driving a team drawing a loaded wagon had occasion to cross the defendant’s track. It was his claim that when he attempted to go across the track the car was 300 feet away, and that he thought he had ample time to cross and would have crossed in safety if the motorman had done his duty. The law applicable to such a case is correctly stated in the recent cases of Chauvin v. Railway, 135 Mich. 85; Gaffka v. Railway, 143 Mich. 456. The testimony made a case for the jury.

The second issue grows out of the refusal of the court to permit an answer to the following question :

“Now, you hake heard testimony here relative to this collision and the position of the car and wagon immediately after, as the result of the collision, and I ask you, taking that state of facts that has been testified to in your hearing upon these points, and your knowledge of the conditions that existed there, the weight of the car and so on, at what rate of speed in your^ judgment was that car going at the time of the collision?”

The witness did not see the accident. The question does not assume he heard all the testimony. It does not appear what part of the testimony he did hear, nor does ■ it appear that he had knowledge of the weight of the car, its momentum, or of the weight of the load which was struck. We do not think it was error to exclude the answer. -

Judgment is affirmed.

Carpenter, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.