text:
    GERMANIA REFINING CO. v. AUDITOR GENERAL.
    1. Taxation — Rolling Stock— Oil Cars — Constitutional Law— Validity of Statute.
    Act No. 49, Pub. Acts 1909 (1 How. Stat. [2d Ed.] § 1958), amending Act No. 282, Pub. Acts 1905, provides that the State board of assessors shall mate an annual assessment of property of railroad companies and all other companies owning, leasing, or operating freight or other cars, not being exclusively the property of the railroad company that pays taxes upon its rolling stock under this act, and that the term .property should be deemed to include all property, real or personal, belonging to persons, corporations, etc., subject, to taxation under this act, and all other property used in carrying on their business, and that the term company, corporation, copartnership, association, or person, should include any other companies owning, leasing, running, or operating any such cars. Complainants were foreign corporations, one of them having a subsidiary corporation or association in the State of Michigan which purchased its products. In carrying on their business complainants provided tank cars for the use of the railroad companies oyer whose lines its freight passed and received as a part consideration therefor a credit upon their freight bills of three-fourths of a cent per mile, complainants to pay for all repairs upon the cars. A higher rate was provided for in case the cars were returned over the line of another company. Held, that a tax upon the tank cars of the defendant was properly levied in pursuance of the statute and that the same was valid and constitutional under section 5, Article 10, of the Constitution.
    2. Same.
    The provisions of this statute were intended to include all cars of every person or corporation which run or'operate upon the railroads of this State unless already taxed, and are intended to be practically identical with those of the Constitution and are limited to property which has a situs in the State. -
    3. Same.
    The contention that, because power is furnished by the transportation companies for tank cars, they are therefore not within the scope of the statute is untenable, since the cars are conducted by appellants over and upon the lines of railways in this State; appellants must be held to be engaged in the business of operating cars on such railroads.
    Appeal from Ingham; Wiest, J.
    Submitted January 30, 1914.
    (Docket No. 72.)
    Decided March 18, 1915.

      Bill by Germania Refining Company and the Independent Refining Company of Pennsylvania against Oramel B. Fuller, auditor general of the State of Michigan, and the State board of assessors to set aside a tax upon cars owned by the complainants. From a decree for defendants, complainants appeal.
    Affirmed.

      S. L. Kübourne and C. D. Chamberlin, for complainants.

      Grant Fellows, Attorney General, and Thomas A. Lawler, Assistant Attorney General, for defendants.
   McAlvay, J.

The complainant the Germania Refining Company is a Pennsylvania corporation. The complainant the Independent Refining Company, Limited, is a limited partnership organized and existing under the laws of Pennsylvania. The former has its principal offices in the village of Rouseville, Fenango county, in said State, and the latter has its offices in Oil City, in said State. Both are engaged in operating oil refineries in the respective places mentioned, and in connection therewith each owns a large number of tank cars used in transporting their products by various railroad companies into and through the State of Michigan • and various other States. Each manufactures lubricating and illuminating oils and their products from crude petroleum, which are sold and shipped by them in their tank cars to dealers and consumers in several States, including the State of Michigan. The Germania Refining Company deals only with the citizens of the State of Michigan by selling its products to them delivered in its tank cars f. o. b. to the railroad companies at Rouseville, Pa., which cars are treated by the carriers the same as other cars, and, under the agreement with the transportation companies hereinafter mentioned, are taken and returned to complainant.

The Independent Refining Company, Limited, owns a business in Grand Rapids, Mich., known as the Grand Rapids Oil Company, which it prosecutes as a separate business and as its customer, and does not sell its products in Michigan to other concerns. Sales are made by it at Oil City, Pa., in the same manner as the sales above described made by the Germania Refining Company, and the products are transported in bulk in its tank cars in the same manner and under the same agreement with the carriers.

The defendant board of assessors for the years 1906, 1907, 1908, and 1909, claiming to be authorized by the Constitution and laws of this State then in force, assessed to these complainants taxes on these tank cars in due form as provided by law, and assessment rolls for the same were delivered to the defendant auditor general of this State, with the warrants of said board for the collection thereof duly attached, and the amount of the same now appears as unpaid taxes of the State of Michigan.

Complainants contend that in the profitable conduct of their business it is necessary for them to own and use tank cars which the railroads cannot furnish in sufficient number to fill the demand of the refineries. They therefore furnish their own tank cars, and have an arrangement with the railroads for the transportation of their products in such cars under which they pay regular freight charges on shipments, and are credited or paid by the railroads as compensation for the use of the cars three-quarters of a cent per mile between the railroad terminals, for both the loaded and empty haul, provided the empty haul is over the same line; otherwise the carriers charge four cents per mile for the haul of the empty car.

Complainants insist that the foregoing facts disclosed by this record show that their property is not subject to taxation under the laws of this State; that they have not been, and are not now, engaged in the business of transportation within the State of Michigan. Complainants therefore filed their bill of complaint in this cause in the circuit court for Ingham county, in chancery, asking that defendant auditor general be restrained from collecting, or attempting to collect, any of the aforesaid taxes; that complainants be decreed to be exempt from taxation in the State of Michigan under the laws thereof; that the warrants to the auditor general be decreed to be void; and that defendant State board of assessors be perpetually enjoined from assessing complainants’ tank cars.

This cause was heard upon pleadings and proofs taken in open court, and, after due consideration, a decree was entered against complainants dismissing their bill of complaint. The case is before this court for consideration upon an appeal by complainants from such decree.

The material facts in this case are not in dispute. The questions presented and argued before this court are questions of law, and relate to the consideration of a portion of article 10 of the Constitution, and also to the construction of a portion of Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909 (1 How. Stat. [2d Ed.] § 1955 et seq.). The portion of the Constitution involved necessary to be quoted is section 5 of article 10 of the Constitution, as follows :

“Sec. 5. The legislature may provide by law for the assessment at its true cash value by a State board of assessors, of which the governor shall be ex officio a member, of the property of corporations and the property, by whomsoever owned, operated or, conducted, engaged in the business of transporting passengers and freight, transporting property by express, operating any union station or depot, transmitting messages by telephone or telegraph, loaning cars, operating refrigerator cars, fast freight lines or other car lines and running or operating cars in any manner upon railroads, or engaged in any other public service business; and for the levy and collection of taxes thereon.”

The statute under which the .taxes in question were assessed and levied is Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909. Portions of sections 4 and 5 necessary to be quoted read as follows:

“Sec. 4. It shall be the duty of said board to make an annual assessment upon an assessment roll, to be prepared by said board, of the property, by whomsoever owned, operated or conducted, and having a situs in this State as hereinafter defined, of railroad companies, union station and depot companies, telegraph companies * * * and all other companies owning, leasing, running or operating any freight, stock, refrigerator, or any other cars not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State. * * *

“Sec. 5. The term property, as used in this act, shall be deemed to include all property, real or personal, belonging to the persons, corporations, companies, copartnerships and associations subject to taxation under this act, * * * _ and all other property used in carrying on their business and owned by them respectively, * * * [followed by certain provisions and exceptions not material]. The term company, corporation, copartnership, association, or person, wherever used in this act, shall apply to and be construed as referring respectively to any railroad company * * * [specifically naming other companies], and any other companies owning, leasing, running, or operating any freight, stock, refrigerator, or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State; and to any firm,' joint-stock association, co-partnership, corporation or any other association, or person, engaged in carrying on any business, the property of which is subject to taxation under this act. The term ‘property having a situs in this State’ shall include all the property, real and personal, of the persons, corporations, companies, copartnerships and associations enumerated in this act, owned, used and occupied by them within the limits of this State, and also such proportion of their rolling stock, cars and other property as is used partly within and partly without this State, as herein provided to be determined.”

Before we consider the application of the provisions of the Constitution and statutes to the complainants, their property and its use, within the State of Michigan, and determine whether it has been properly or improperly assessed for taxes, we should consider what, under the undisputed facts disclosed by the record, this property is, for what purpose and use it is brought into and taken out of this State, and for whose use and benefit it is operated.

In their bill of complaint complainants state that they are created and authorized to do business by virtue of the laws of the State of Pennsylvania, of which they are residents, and in which their places of business are located; that their business is refining and selling oils and lubricators; that for the profitable conduct of their business they own many large tank cars, each of 6,500 to 8,500 gallons capacity; that they sell their products in bulk loaded in such tank cars at their respective places of business to their customers f. o. b. these tank cars, where they are accepted by the transportation companies, and are taken by said carriers over their railroad lines to their -destinations in the State of Michigan, where the contents are delivered to the customers, for which haul, if returned over the same line, the carriers pay to the complainants for the use of each car three-quarters of a cent per mile for the round trip. If the return trip should be by another line, it is claimed that four cents per mile is charged complainants for the distance. The record indicates that usually, if not always, the three-quarters of a cent per mile is not paid complainants in cash, but credited to them on freight account, and also that these tank cars are in the possession and control of the carriers from the time of receipt by them until returned, and that complainants pay for all repairs thereon.

It appears from these facts that complainants’ cars are used exclusively by them in their business over the railway lines of the carriers to which they are delivered for the purpose and upon the terms stated.

Let us first consider the scope of the constitutional and statutory provisions involved and the intent therein contained as to the classes of property affected and the uses thereof which would bring such property clearly within the purview of the Constitution and law. There is no question involved of the constitutionality of the statute under consideration.

The provisions of section 5 of article 10 of the Constitution above quoted, are not complicated or difficult to be understood. This section simply empowers and authorizes the legislature by law to provide for the assessment, by a State board of assessors, of the property of corporations and the property by whomsoever owned, operated, and conducted, engaged in the business of

“transporting passengers and freight * * * transporting property by express, * * * operating refrigerator cars, fast freight lines or other car lines and running or operating cars in any manner upon railroads, or engaged in any other public service business; and for the levy and collection of taxes thereon.”

In pursuance of this constitutional authority, and for the purpose of carrying the same into effect, we find Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909, now in force and effect. Section 4 of this act requires the State board of assessors to make an annual assessment, upon an assessment roll to be prepared by it,

“of the property by whomsoever owned, operated, or conducted and having a situs in this State, as hereinafter defined, of railroad companies * * * and all other companies owning, leasing, running or operating any freight, stock, refrigerator, or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State.”

Section 5 of this act deals with definitions of words used therein, as follows:

“The term property, as used in this act, shall be deemed to include all property, real or personal, belonging to the persons, corporations, companies, co-partnerships, and associations subject to taxation under this act. * * * ”

Also:

“The term company, corporation, copartnership, association, or person, wherever used in this act, shall apply to and be construed as referring respectively to any railroad company, * * * and any other companies owning, leasing, running or operating any freight, * * * or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State; and to any firm, joint-stock association, copartnership, corporation, or any other association or person, engaged in carrying on any business, the property of which is subject to taxation under this act.”

Also:

“The term ‘property having a situs in this State’ shall include all the property, real and personal, of the persons, corporations, * * * enumerated in this act owned, used and occupied by them within the limits of this State, and also such proportion of their rolling stock, cars and other property as is used partly within and partly without this State, as herein provided to be determined.”

Other sections of this act provide with particularity the details of making an assessment, and ascertaining the true cash value of property, and other matters which do not require to be stated because not necessary to the determination of the questions involved in this case.

While the principal contention of appellants is, as has already been stated, that the provisions of the statute in question are not broad enough to include the property belonging to them upon which it is sought to impose the taxes in question, yet, to a considerable extent, counsel have discussed in their brief the general power of the State to impose taxes, the question of the situs of the property which may be taxed, in connection with the maxim, “Mobilia sequuntur personam,” and State taxation in interference with interstate commerce. It does not appear to us that these questions require discussion. In cases similar to the instant case they have been discussed, as far as they have any bearing upon the questions here involved, in upholding the authority of State taxation upon the property of the class to which this is claimed to belong.

As was said by the learned trial judge in his opinion:

“The right of a State to tax cars owned out of the State by corporations causing them to come into the State, in carrying on the business done by railroads, or by individuals using the roads for their cars to transact business strictly railroad business, has been so thoroughly decided by the repeated decisions of the Supreme Court of the United States that it is no longer an open question.” Adams Express Co. v. Ohio, 166 U. S. 185, 17 Sup. Ct. 604; Pullman, etc., Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876; Ameri can, etc., Transit Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599; Union, etc., Transit Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631.

In some of the cases above cited the provisions of the statute relative to arriving at an equitable assessment of the property upon which the taxes were levied were practically the same as in the instant case. It is the contention of appellants that the statute in question applies only to such corporations and companies as are actually engaged in the business of owning and operating their cars in public service business and carrying freight in them, and that it is not broad enough to warrant a construction which will include their tank cars when used as shown by this record.

The constitutional authority to provide by law for such assessment of these taxes has been already briefly stated, and includes the property, by whomsoever owned, operated, or conducted, engaged in the business of transporting passengers and freight, and running and operating cars in any manner upon railroads. This was intended to include all cars of every person or corporation running or operating in any manner upon railroads in this State, upon which taxes were not already assessed.

The provisions of the statute are practically the same as those of the Constitution, limiting the assessment of such taxes to property having a situs in the State, as defined. There can be no question but that this statutory provision includes the property in question belonging to the appellants, provided it may be said to be included within its terms as

“property by whomsoever owned, operated or conducted * * * of railroad companies * * * and all other companies [defined as including persons] owning, leasing, running or operating * * * any other cars * * *■ over or upon the line or lines of any railroad or railroads in this State.”

The record shows that the tank cars of appellants by their directions alone, loaded with their products, are brought by the carriers into the State of Michigan, where they are unloaded, and then returned to Pennsylvania, for which use appellants are paid three-quarters of a cent per mile by the carriers; that these cars are operated over and upon certain railroad lines in this State for the sole use and benefit of the appellants.

Can the contention of appellants be sustained that, because this use to which they put their property in this State, and which is strictly railway business, -is accomplished by means of power furnished by the transportation companies these tank cars are not within the scope of the statute? Can it be said that appellants’ cars are not operated or conducted by appellants over and upon lines of railroad in this State? We are of the opinion that these questions must be answered against the contention of appellants, and that their property is clearly within the provisions of this statute and subject to taxation under it.

Appellants, by the use of their cars for the transportation of their products, receiving therefor an allowance or rental from the carriers, must be held to be engaged in the business of operating cars upon the railroads within this State.

In our opinion, there is no distinction in principle between the facts admitted by appellants in this case and in the Federal cases cited supra, viz.: American, etc., Transit Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599; Union, etc., Transit Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631.

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

Brooke, C. J., and Stone, Ostrander, Moore, and Steere, JJ., concurred. Kuhn and Bird, JJ., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    POWERS v. CORRY.
    1. Taxation — Description—Deeds—Error in Conveyance.
    The description of lands in a tax deed as the “south 27 acres bounded north by the % line, east by a road and James Gaze, south by road and John Cary, west by !4 line, section 16,” etc., was not void for uncertainty as to the owner whose deed whereby he secured his title to the real property had a similar description, and whose property was assessed on the basis of the same description for a period of several years: Act No. 169 Session Laws of 1869, authorizing an assessment by reference to lands by which a parcel was bounded.
    2. Same — Equity—Conveyances.
    A description should afford means of identifying the land and be sufficient so as not to mislead the owner.
    Appeal from Allegan; Padgham, J.
    Submitted November 5, 1914.
    (Docket No. 158.)
    Decided March 18, 1915.
    Bill by Charles Powers against John Corry and another to set aside a tax title. From a decree for defendants, complainant appeals.
    Affirmed.

      Richard L. Newnham, for appellant.

      Ira C. Montague, for appellee Corry.

      Ethol W. Stone and Grant Fellows, Attorney General, for appellee auditor general.
   McAlvay, J.

Complainant is the owner of certain lands situated in the village of Douglas, county of Allegan. In 1901, the auditor general of. this State duly filed a petition as the beginning of proceedings under the laws of this State for the sale of what is claimed to be the premises in question, for delinquent taxes, which proceedings progressed in due course to a decree, sale, and report of sale, which was finally made May 10, 1902, all of which proceedings are by stipulation conceded to have been regular and according to law. The premises in question were bid off to the State of Michigan. On April 30, 1908, the auditor general sold the same to defendant John Corry, who later gave due notice to complainant under the statute that he would be entitled to a reconveyance upon making payment of the amount specified. Complainant forthwith filed his bill of complaint in this cause against defendant John Corry and later, by stipulation, joined the auditor general as a defendant. Complainant’s claim is that the description set forth in defendant Corry’s tax deed and notice of redemption is not a description of the premises owned by him; that the sale by the State to Corry was void; that, being apprehensive that he would take proceedings to enforce his pretended tax claim against complainant’s premises, he prayed the court to adjudge him as owner of the premises in question and to restrain defendant Corry from taking proceedings to obtain a writ of assistance, and to decree his tax claim invalid and void. An issue was joined upon the bill of complaint and answers of both defendants. The cause was heard, and a decree dismissing the bill of complaint duly entered. From this decree complainant has appealed.

There is little dispute as to the material facts in this case. The complainant, on June 26, 1886, acquired his title to these premises by a conveyance from Ann S. Knight and Milton L. Knight, her husband, to him, in which the portion of the description necessary to quote reads as follows:

“The west part of lot two in section sixteen (16), township three (3) north, of range sixteen (16) west, according to the United States survey, being twenty-seven acres, more or less, and known as the Jonathan Wade farm; bounded on the east by Poppewell and Gaze lot and road; north by D. and J. Gerber lot, west by Ensign Bartlett, Foley and Bennett lots, and south by section line.”

The grantors in this conveyance warranted only as against their own acts. The instrument contained the following express agreement:

“Nevertheless, it is understood that the above-described premises are sold and deeded subject to a mortgage of two thousand dollars payable to Mrs. E. J. Frye, and to taxes and tax liens.”

Shortly after his purchase, complainant caused Frank Kirby, a storekeeper who lived in the village of Douglas, to write for him to the county treasurer relative to taxes on this property the following letter:

“Douglas, Allegan Counts, Mich., 7-20.

“Hein Lankheit.

“Dear Sir:

“I am requested to write you what the taxes are on the property assessed to J. M. Brown, village, of Douglas, Dudleyville plat, 27 acres.

“Yours truly,

“Frank Kirby.”

The county treasurer replied to this letter as follows :

“July 21, ’6.

“Mr Frank Kirby,

“Douglas, Michigan.

“Dear Sir:

“Yours of the 20th is at hand. The parcels assessed to J. U. Brown on the ’85 roll are lots 3-5 block 1, Spencer’s addition village of Douglas, ’8 tax $11.27. Then lots 3-5 block 1 Spencer’s addition village of Douglas, tax of ’85, $8.60, bounded north by 8th line, east by Gaze, south by road and Carey, west by quarter line on section 16-3-16, 1882 tax bid off for State, can be redeemed for $128.64. 1883 tax withheld, can still be paid, amount now due $34.25. 1884 tax $37.10. 1885 tax $28.60. Total $248.46. The above amount includes interest and charges till July, 1886, inclusive. To pay it with the above amount the money must be paid in here before the end of July.

“Very respectfully,

“Hein Lankheit, County Treasurer.”

Complainant then wrote the county treasurer as follows:

“Douglas, 7 — 24—1886.

“Mr. Lankheit.

“Sir:

“As I am the purchaser of the 27 acres of land that is known as the Wade farm, I want to pay the taxes. I got Mr. Kirby to write to you. I want to pay the taxes for the years 1883, 1884, 1885, which I see by your figures is $99.95. Please send tax receipt for each year, and oblige.

“Charles Powers.”

The record shows that on July 26th, following, the county treasurer acknowledged receipt of the above letter and inclosed tax receipts Nos. 982, 983, and 984, as requested, together with a small balance, from which it appears complainant had sent the treasurer $100.

Defendant Corry, on April 29, 1908, became the purchaser of all of the rights of the State in and to:

“The following described lands situate in the county of Allegan in said State, which were bid off to the State for the taxes assessed thereon in the year 1882, to wit, the south twenty-seven acres bounded north by one-eighth line, east by road and James Gaze, south by road and John Carey, west by one-quarter line, section sixteen, town three north, range sixteen west,” for which he paid the sum of $231.51 to the State treasurer.

Said defendant afterwards caused to be served upon complainant, as grantee under the .last recorded deed in the regular chain of title of said land, the statutory notice that he would be entitled to a reconveyance of said lands on complying with the terms of such notice. The regularity of this notice and that it was duly served is not questioned.

There appears to be but one question to be determined in this case, and that is whether the description under which these premises were sold for taxes and as contained in the tax deed is void by reason of uncertainty.

To show the exact location of complainant’s premises and understand these descriptions, which are so. vital to this case, a consideration of the provisions of the statute in force at the time the tax in question was assessed, providing how real estate may be described by the supervisor, and a plat of the premises, will be illuminating. The statute referred to was subdivision 3 of section 23, of Act No. 169, Laws of 1869, which reads:

“(3) If the tract be less or. other than such subdivision, it may be described by a designation of number of the lot, or other lands by which it is bounded, or in some way by which it may be known.”

The plat is Exhibit 3 taken from the record and was used upon the hearing. It was evidently drawn from the description of the premises found in the deed under which complainant derived title.

The material portion of the description contained in complainant’s deed reads as follows:

“The west part of lot two in section sixteen, township three north, of range sixteen west, according to the United States survey, being twenty-seven acres, more or less, and known as the Jonathan Wade farm, bounded east by Poppewell lot and Gaze lot and road, north by D. and J. "Gerber lot, west by Ensign Bartlett, Foley and Bennett lots, and south by section line.”

Applying this description to the plat, we find with the aid of testimony appearing in the record, which is made necessary by the description itself, no difficulty whatever in locating the premises marked with complainant’s name. The ownership and identity of the distinct lots and parcels of land and the road surrounding three sides of complainant’s land are fixed, in fact, are admitted, as is also the section line bounding the premises on the south. These are the premises, and this is the description of the same upon which complainant relies ■ for title.

The description in defendant Corry’s tax deed, necessary to be quoted, reads:

“The south twenty-seven acres, bounded north by one-eighth line, east by a road and James Gaze, south by road and John Carey, west by quarter line, section sixteen, town three north, range sixteen west.!’

This description also requires certain testimony to identify certain parcels of land surrounding it. It is located on section 16, town 3 north, range 16 west. It is bounded on the east by road and James Gaze, which is clearly fixed by testimony. We turn to the south line, described “south by road and John Carey,” and find the evidence shows a section line road and a small piece of land in the southeast corner containing one-half acre well known to complainant, who also testified that many men had lived on it. It is not shown as occupied by Carey. Turning to the west line, we find a quarter line of section 16. The east, south, and west lines are therefore fixed with reasonable certainty.

This description begins, “The south twenty-seven acres.” Complainant contends that the north eighth line mentioned must be taken as the north line of the “south twenty-seven acres.” The record shows that these four boundaries would include a parcel of land containing more than 27 acres. The tax deeds call for the south 27 acres and for only 27 acres. Consequently, the eighth line, if considered as the north boundary line of a parcel which includes the south 27 acres, makes a description which is reasonably and fairly certain and not calculated to mislead the owner.

In regard to the certainty and sufficiency of the description required for the validity of a tax deed, the rule is laid down in Cooley on Taxation (2d Ed.), p. 407, as follows:

“A more satisfactory rule would seem to be that ‘the designation of the land will be sufficient if it afford means of identification and do not positively mislead the owner/ or be calculated to mislead him” — cited in Auditor General v. Fleming, 142 Mich. 12, 16 (105 N. W. 71).

Applying this rule to the instant case, we find that the complainant was not misled by it, having paid the delinquent taxes on his premises for the years 1883, 1884, and 1885, assessed under practically the same description, at which time he had knowledge from the county treasurer that the sale for 1882 bid in to the State, though delinquent, could be redeemed for a stated amount.

In our opinion the description in the tax deed is clearly within the provisions of Act No. 169, Laws of 1869, supra. All doubt as to whether this description applies to complainant’s land is removed if the description in the tax deed be laid upon the plat of complainant's property, when it is found to coincide exactly with the description in complainant’s title deed, except that the tax deed calls for only the south 27 acres and complainant’s deed calls for 27 acres, more or less.

Evidently the taxes in question were rejected and reassessed in 1882, and appellant in his brief in this court makes some claim that there was irregularity in these proceedings. The record shows a stipulation in the case which admits the regularity of the proceedings which culminated in the sale to the State of these premises for the tax in question, which concludes complainant from raising the question on this appeal.

The record does not disclose any equities on behalf of complainant. He purchased these premises subject to “taxes and tax liens,” and when he, desiring to pay such taxes, afterwards made inquiry of the county treasurer as to the amount of taxes delinquent on these premises, he was informed in writing of all such taxes, including the tax in question in this suit. He made payment in full of all such delinquent taxes, except the one in question. The record shows that he testified he did not know why he did not pay these taxes at that time.

Defendant Corry holds a regular conveyance by tax deed from the State of all its interest in the premises which the learned trial judge in his opinion filed in this case correctly stated the complainant may acquire upon payment to defendant Corry of the amount required by law in order to obtain a reconveyance, which is all said defendant has ever demanded.

The decree of the circuit court is affirmed, with costs against complainant to be taxed.

Brooke, C. J., and Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. Kuhn, J., did not sit.


text:
    GRAHAM v. GRAHAM.
    1. Fraud — Presumptions—Burden of Proof — Accounting.
    In an action for an accounting against the son of intestate and his wife who had heen employed upon a farm of decedent, upon an agreement between the parties that deceased should pay a stated sum to the defendants, who claimed to have accounted for all the proceeds of the place, evidence considered and held, insufficient to sustain the contention of the complainant administrator that a portion of the proceeds of the farm had been fraudulently retained by the defendants and never accounted for.
    2. Same.
    Fraud cannot be presumed but must be proved: it is not inferable from circumstances and must be clearly established by satisfactory evidence: if the facts are consistent with an honest purpose the burden is not sustained.
    Appeal from Calhoun; North, J.
    Submitted April 21, 1914.
    (Docket No. 86.)
    Decided March 18, 1915.
    Bill by Romeyn Graham, as administrator of the estate of Adeline P. Graham, deceased, against Albert Graham and Salona Graham for an accounting. From a decree for complainant, defendants appeal.
    Reversed.

      Herbert E. Winsor (Stewart & Jacobs, of counsel), for complainant.

      J. M. Hatch & Son, for defendants.
   McAlvay, J.

Complainant, as administrator of the estate of his mother, Adeline P. Graham, deceased, filed his bill of complaint in this cause against Albert Graham, his brother, and Salona Graham, the wife of his brother, for an accounting against them, claiming that moneys had come into their hands belonging to the mother during her lifetime which had not been paid to her or accounted for. To this bill of complaint defendants demurred. The demurrer having been overruled, defendants appealed to this court, which resulted in an affirmance. Graham v. Graham, 171 Mich. 307 (137 N. W. 153). Reference is had to the opinion in this case. After the case was remanded to the circuit court, defendants filed separate pleas, and for the purpose of saving time it was stipulated that defendants might file joint and several answers to the bill of complaint without waiving the benefit of such pleas, which was saved to them to be argued and considered upon the hearing in the circuit or Supreme Court. The cause was then heard upon proofs taken before the court and resulted in a decree in favor of complainant in the sum of $2,000. Both parties have appealed to this court.

Adeline P. Graham, deceased, for many years owned and occupied during her lifetime a farm of about 160 acres in Calhoun county. Defendant, her eldest son, and his wife first went upon this farm in 1888 and remained there with deceased for several years. They were employed by her upon the farm, but the terms of that employment do not appear. They removed from the farm in 1894, when the mother procured the services of another son, who for some reason remained with her but a short time. They returned in 1895, when, as defendants claim, the mother and son entered into an agreement that he was to live with her on this farm and do such work as she should require of him°; also, that his wife was to assist his mother in doing the housework; that defendant Albert Graham was to have the right to run his own farm of 80 acres situated a short distance from his mother’s farm, and was to receive for the services of himself the sum of $200 and $100 for his wife’s services per year. The mother also agreed by the terms of the contract to board and lodge her son and wife and all hired help employed on the farm. All expenses in conducting this farm were to be paid by the mother. Under this agreement these parties continued from 1895 to the time of her death in March, 1910, living together during the entire time as one family, apparently without any disagreement between them. After the mother’s death, defendant Albert Graham, on August 11, 1910, filed a claim against her estate for a balance of $2,812.22, claimed by him to be due under the above contract of employment with her. This claim was opposed and brought to a hearing before the commissioners of claims, in the said estate. It was allowed at the sum of $300. Claimant appealed from the decision of the commissioners to the circuit court, and it was there settled, compromised, and certified back to the probate court to be allowed at the sum of $1,100, with the understanding, as claimed by defendant Albert Graham, and his attorneys, that this was a full settlement of all matters arising out of the contract of employment and all set-offs, if any, due the estate of Adeline P. Graham. Afterwards, on November 9, 1911, the bill of complaint in this cause was filed. The bill of complaint was framed and the cause was heard and presented by complainant before the court upon the theory that defendants, acting jointly, during all the years from 1895 to 1910, systematically and fraudulently were stealing moneys which came into their hands as agents for Adeline P. Graham from the sales of produce and grain from the farm and all other sources, amounting altogether to large sums of money.

The theory and contention on the part of defendants is that complainant has no standing in a court of equity; that if any amount was owing this estate it was a matter of indebtedness from the defendant Albert Graham arising out of the agreement between himself and the deceased mother; that all the acts and doings for which complainant claims a recovery arose from such relations, and no others are claimed or shown by complainant; that defendants are therefore improperly joined; that complainant has a complete and adequate remedy at law to recover anything owing from defendant Albert Graham to him as administrator. They also contended that no recovery could be had for any indebtedness which accrued more than six years prior to the death of Adeline P. Graham, and they deny that any property or money belonging to Adeline P. Graham was ever kept by them or either of them and that they paid the same to her and after her death gave all that remained in their possession to complainant.

From an examination of the entire record, we find that Adeline P. Graham, who lived to the ripe old age of 88 years, was during her lifetime a woman of considerable ability and up to within a few months of her death was able to and did look after her business affairs. Her husband died about the year 1885, leaving her with this farm of 160 acres, which she occupied until the time of her death. At first she had the assistance of two of her sons for a year or two, and in 1888, about the time defendants were married, she first secured their services. They continued with her from that time until 1894 without interruption, apparently with satisfaction to all parties. These relations were then interrupted, if the reason appears in the record we do not recall it, and the defendants went upon a farm which Albert Graham had purchased, not far from the homestead, and remained there until 1895, when she again, because of some dissatisfaction on her part with the son she had employed during the interim, sought their services. As already stated, defendant Albert Graham and his wife returned to the homestead, when an agreement was entered into with his mother, the terms of which have already been given.. Defendants remained there continuously with his mother, doing such work as she required, and at the same time carrying on the work of his own farm, until the time of her death. There is a dispute in the record as to whether this agreement was made with the son, or with him and his wife jointly.

The record shows that during this time defendant Albert Graham marketed and. sold the products from his mother’s farm and employed the hired men necessary to properly do the work, whose wages were paid by the mother, and also personally performed work upon her place; that defendant Salona Graham during all that time assisted in and about the household duties and the customary work which farmers’ wives perform. She did the marketing of butter and eggs and purchased groceries and meat for the use of the family. She also frequently took money, checks, and drafts for her mother-in-law, Mrs. Graham, at her request, and deposited them in the banks, and frequently drew out from the banks money in both large and small amounts for her.

The record shows without dispute that no books of account were kept by any of these parties and, with the exception of some memoranda made by defendant Albert Graham and the bank passbooks, there is no written evidence of the transactions between these parties. Defendants produce their individual passbooks at two banks and one joint passbook at a savings bank, also passbooks of two banks in the name of Adeline P. Graham. All these passbooks show deposits and withdrawals from time to time, sometimes in quite large amounts, and no question is raised but that the entries in these passbooks were made at the times they purport to be made, or as to the correctness of the amounts they represent. It is admitted in the record that, after the death of the mother, Albert Graham and his wife turned over to the complainant as administrator $5,000 at one time, represented by a certificate of deposit of $4,000 and a certificate or check for $1,000.

There are several difficult and interesting questions of law raised by each of the parties to this cause; but, as we view the case, we do not consider it important or necessary to discuss such propositions in order to decide the case.

The court finds itself in the same difficulty in regard to the evidence introduced on the part of the complainant as was met by the learned trial judge, expressed by him in his opinion, as follows, after speaking of some of the difficulties in the case:

“For reasons hereinafter indicated, this case has been one most difficult of determination; and I wish to make the record clear on this point, that I have decided the questions involved upon the theory that neither of the defendants could give competent testimony as to those matters concerning the accounting which were equally within the knowledge of Adeline Graham. With this rule of evidence in mind, I am of the opinion that the complainant has established his right to an accounting; but it is by no means easy, under the proof offered in this case, to make a determination as to what the measure or amount of the accounting should be.”

And again:

“And this difficulty has been still further increased by the lack of positive, definite testimony as to what the measure of recovery should be in case an accounting was decreed.”

The same difficulty was experienced by the solicitors for complainant, who in a supplemental brief say:

“The complainant had to rely solely upon strangers for his proof and was able to obtain data for but a portion of the period covered by defendants’ services. Just what the full amounts due Mrs. Graham would be upon a full and fair accounting can only be conjectured.”

This cause is founded upon the fraudulent appropriation of moneys by defendants which came into their hands while they were performing work for complainant’s decedent. Including the parties and their relatives, 87 witnesses were examined, some at great length. It will be of no benefit to the profession to present an abstract of the testimony in the case offered to show the fraudulent conduct of defendants in attempting to prove the amount of money belonging to this estate which has been wrongfully retained by them. From a critical examination of all of this testimony, we do not find a single item of positive, definite evidence as to any specific amount or amounts wrongfully retained by defendants from this estate at any time.

The theory of complainant is that, because of the length of time during which these parties continued their relations, much larger amounts must have come into the hands of these defendants than the record shows, yet, in no instance is the testimony stronger than estimates as to what the annual income from this farm ought to be or would naturally be under the circumstances. In no case is proof made of what such income in any instance amounted to, nor any testimony from which could be gathered an amount to charge against these defendants in any particular instance. We find nothing more than suggestions, and these not of strong character. All of this testimony was too speculative to form a basis of a finding of the actual income from this farm in any year, or to fix any specific amounts from other sources which had not been accounted for.

The rule that fraud cannot be'presumed but must be proved, that it is not inferable from slight circumstances, and must be clearly established ■ from satisfactory evidence, is too well settled in this State to require citation of authorities. There is another rule of law which applies to cases of this character, and that is that fraud must be proved by facts which are inconsistent with an honest purpose.

In the instant case all of the acts of these defendants which are admitted and proved are entirely consistent with an honest purpose and negative any theory of fraudulent conduct. The facts that certain deposits were made by defendant Salona Graham and like amounts withdrawn on the same date, and in some instances of the same amounts, as shown by the passbooks of herself and Mrs. Adeline Graham, do not raise any presumption of fraud, when one considers that the two trading points where she went with her butter and eggs were some distance from home and that she only went occasionally. It would be natural that, having money to deposit or withdraw for both parties, it would be done on the same trip. The amounts of these entries are not extraordinary, nor is it possible to draw an inference of dishonesty from the facts that these parties kept no books and cannot remember all of the items of cash received by them during 15 years.

Mrs. Adeline Graham during these years had large expenses outside of her farming interest. She made trips to Colorado. Letters are in evidence from her while there. She went to care for and bring back consumptive children who succumbed finally to the disease. During these years she made advancements to all her sons. It is admitted that she gave Edward Graham $3,500, that she gave Albert Graham, this defendant, $2,000, that she gave Frank A. Grahám $500, and complainant $400, in cash, the large portion of it, if not all of it, during the period while defendants lived with her. If that amount is taken from the receipts of this farm worked only to one-half its capacity, as is claimed, by her orders, a large surplus could not be expected.

Our conclusion is that the complainant has not established his case against these defendants, and that there is no evidence in the case which sustains his charge of fraudulent appropriation of the money or property of his decedent.

It follows that the decree of the circuit court is reversed and set aside, and the bill of complaint is dismissed, with costs of both courts in favor of defendants.

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


author: Per Curiam.

text:
    HEKKEMA v. KALAMAZOO CIRCUIT JUDGE.
    Divorce — Equity — Vacating Decree — Marriage — Defaults— Irregular Judgment — Leave to Open.
    Where the plaintiff in divorce proceedings entered a decree pro confesso, upon failure of the wife to file an answer to the bill within the required period, and the solicitor for complainant thereafter without notice to defendant or her solicitor entered a default, took proofs in the case and procured a decree of divorce on the ground of extreme cruelty, and where complainant within a year remarried after notifying his solicitor that he intended so to do, the court did not abuse its discretion in entering an order opening the default, permitting the defendant to file an answer, that set up a meritorious defense to the bill for divorce, and vacating the decree: a fair inference from the record being that defendant did not unreasonably delay after having information that the decree was entered against her in the suit, and that she had acted as soon thereafter as she was able to do so.

      Mandamus by Hiram H. Hekkema against Nathaniel H. Stewart, circuit judge for the county of Kalamazoo, to compel .respondent to vacate an order opening a default and setting aside a decree of divorce.
    Submitted November 20, 1914.
    (Calendar No. 26,076.)
    Writ denied March 18, 1915.

      D. 0. French, for relator.

      Jackson & Fitzgerald, for respondent.
   Per Curiam.

Application is made for a writ of mandamus to require respondent to set aside a certain order vacating and setting aside defendant’s default pro confesso, and a decree entered against defendant and giving leave to file an answer to the bill of complaint in a certain cause for divorce instituted in the circuit court for Kalamazoo county, in chancery, wherein Hiram H. Hekkema, the relator, was complainant, and Amanda M. Hekkema, his wife, defendant.

This record shows that these divorce proceedings were begun November 11, 1912, and service of subpoena was had and defendant’s appearance entered on November 14th following, and a copy of the bill duly served on defendant November 20th. On February 24, 1913, complainant, without notice to defendant, or her solicitor, entered her default, took proofs in the case, and on the same day was granted a decree of divorce against defendant for extreme cruelty, in which the sum of $2 was allowed in lieu of all alimony and rights against complainant. This is the decree which respondent vacated and set aside because of irregularities in taking the same.

The record shows that on December 23, 1913, the defendant, Amanda M. Hekkema, filed her sworn petition setting up the foregoing facts, asking to set aside her default so entered and the decree granted against her, because they were irregular, proffering at the same time a sworn answer to the bill of complaint in which she traversed and denied all the allegations contained therein. After a hearing the court granted the prayer of this petition, set aside said default, and vacated the decree, giving defendant leave to file her answer and proceed to a hearing. In the meantime relator, on November 27, 1913, entered into the marriage relation with another woman.

By these proceedings relator asks that by writ of mandamus respondent be compelled to set aside the order vacating the said order of default and the decree of divorce above mentioned. It is admitted on the part of relator that the order pro confesso and the decree were irregularly taken; that no notice thereof was given to defendant or her solicitors; and that they did not learn of. it until some time after the same were entered.

The ground upon which this relief is asked is that the defendant was guilty of gross laches, negligence, and unreasonable delay in moving to set aside these irregular proceedings, and that the second wife was not made a party thereto. The record shows that defendant was a working woman earning about $3 per week and board; that she was in poor health and financially unable to proceed earlier. Respondent in his return found these facts, and further that the solicitor for relator admitted upon the hearing that he was notified on the day before relator married again that he intended to do so. Respondent also charges relator with knowledge of the irregularity of his decree before he was again married.

In our opinion the record before the respondent warranted the action he took in setting aside the order pro confesso and the decree in the instant case. The rules and practice of the courts are well known to practitioners. They are established to promote the orderly conduct of judicial proceedings and protect parties litigant in their rights. This defendant never had her day in court to make her defense to the charge made against her by petitioner in his bill of complaint, which from her proffered answer appears that she could have made. It does not appear when she first learned a decree had been taken, but the fair inference from the record is that she acted as soon thereafter as she was able to do so.

The writ is denied, with costs against relator.


text:
    COWAN v. ANDERSON.
    1. Estates of Decedents — Fraudulent Conveyances — Quitclaim Deeds — Executors and Administrators — Setting Aside Deeds.
    In a suit by an administrator in bebalf of decedent’s creditors to set aside conveyances of real property made by decedent by a quitclaim deed to a third party who subsequently conveyed by like deed to decedent’s daughter, although it appeared that the conveyances were made, in the first instance, to avoid liability to one of the creditors of decedent, and where the holder of the title at the time of the commencement of suit obtained his interest through the daughter in good faith for a valuable consideration, and the original deed was made by decedent about seven years before his death, and where the conveyance was questioned by one of the creditors who levied execution upon the premises but later suffered his lien to be become barred by the statute of limitations, the trial court did not err upon the consideration of the evidence in determining that the holder of the title obtained his rights in good faith and for full value without notice of the claims of alleged creditors.

      2. Equity — Reopening Testimony — Decebe.
    It is within the discretion of the trial court to refuse to reopen a decree in a 'suit brought by an administrator of an estate to recover property conveyed away by decedent in defraud of his creditors upon motion and petition of the complainant supported by affidavit, the practice requiring that the application be meritorious and disclose reasonable diligence in attempting to discover the new evidence.
    Appeal from Muskegon; Sullivan, J.
    Submitted April 24, 1914.
    (Docket No. 126.)
    Decided March 18, 1915.
    Bill by Joseph A. Cowan, administrator of the estate of Frederick W. Miller, deceased, ■ against Frank A. Anderson and others to set aside certain conveyances on the ground that they were in defraud of decedent’s creditors; From a decree for the defendants, complainant appeals.
    Affirmed.

      Philip W. Kniskern (Stephen H. Clink, of counsel), for complainant.

      Cross, Vanderwerp, Foote & Boss, for defendants.
   McAlvay, J.

Complainant, as administrator of the estate of Frederick W. Miller, deceased, filed his bill of complaint in this cause in the circuit court for the county of Muskegon, in chancery, against defendants, under the provisions of sections 9363 and 9364, 3 Comp. Laws, as amended by Act No. 326, Pub. Acts 1905 (4 How. Stat. [2d Ed.] §§ 11074, 11075), for the purpose of setting aside certain conveyances by complainant’s decedent and others claimed to have been made with intent to defraud decedent’s creditors. Defendants answered the bill of complaint, and an issue was joined upon the pleadings. Proofs were taken, and the cause was heard before the court, which resulted in a decree dismissing the bill of complaint. From this decree complainant has appealed to this court.

The opinion of the trial court, which is contained in the record, contains a complete abstract of the pleadings, a full statement of the facts, findings of the court thereon, and his conclusions, as follows:

“Finding of the Court.

“(1) The complainant alleges in his bill of complaint that he is administrator of the estate of Frederick W. Miller, deceased (who died intestate on the 10th day of February, 1911) ; that all 'the property standing in the name of the deceased at the time of his death had been disposed of by the order of the probate court; that claims had been allowed in the probate court against the estate of over $5,300; that the property sold brought an insufficient sum to pay the debts allowed; and that there will be a deficiency of more than $4,000.

“(2) It is further alleged that the deceased owned •in his own name and was actually in possession of real estate of greater value than $1,000 during his whole life; that he farmed the same, paid the taxes thereon, took the proceeds of the crops, made improvements with his own funds without help or assistance from any one.

“ (3) That, while he owned and possessed such real estate, he became indebted to one Horace Brown and other persons in large amounts, and while so indebted, for the purpose of defrauding his said creditors, he transferred the said property to the defendant Frank Anderson without consideration by a quitclaim deed dated April 7, 1900, which was recorded April 19, 1900, in the office of the register of deeds of Muskegon county; that the transfer was. made with the sole intent to put the property out of reach of levy and sale and execution; that on the 5th day of May, 1900, the bill alleges deceased, in order further to complicate the title to the property, had Mr. Anderson and his wife transfer it to his daughter, Clara Miller (now Strong), by quitclaim deed, which was not recorded until the 26th of April, 1904.

“(4) The fourth paragraph describes the property as two 40-acre lots, one in section 4 and the other in section 16 of town 10 north, range 17 west, in this county.

“(5) It is alleged in the bill that on the 18th day of July, 1912, Clara Miller (now Clara Strong), knowing the estate had not property sufficient to pay the debts, and with full knowledge of the facts stated above, and knowing she had no title against said creditors, executed a deed to the defendant Elbert George, who it is claimed knew the condition of the title; and it is alleged that he paid no consideration for the deed with the intent to hinder and delay the creditors of the estate. The prayer of the bill is that: (a) That all the conveyances described in the bill be declared void; (6) that said lands be sold under the order of the probate court to pay the debts allowed; and (c) that the complainant have such further and other relief as shall be agreeable to equity, etc.

“It is denied in the answer that Mr. Miller owned the land in his lifetime, and that he took the proceeds of it, and also denied that he paid the taxes out of his own funds.

“It is denied by Mr. Anderson and Clara Strong of their own knowledge, and by Mr. George on belief, that the conveyance from Miller to Anderson and from Anderson to Clara Strong was made for the purpose of defrauding creditors, and both Anderson and Mrs. Strong say a fair consideration was paid for the land.

“Both defendants Strong and George claim that George paid $725 in money for the land and assumed a mortgage thereon for $125, and that the consideration was adequate, and the transfer was made in the utmost good faith, and not to hinder and_ delay creditors. Proof was taken at great length in the case, the material parts of which will be noticed in passing:

“The administrator brings this action under the provisions of Act No. 326, Pub. Acts 1905, amending 3 Comp. Laws, §§ 9363 and 9364, not on his inception, but on the application of a creditor of the estate, one Otto Meeske, who, it was stated in argument, had given security as required by that act for the prosecution of the case.

“The title to the property was first in Mrs. Miller, the wife of Frederick W. Miller, who, while on her deathbed, conveyed it by warranty deed to her husband. This deed, which is not attacked in any way, both parties claim, and to which I agree, vested the title to the property in Frederick W. Miller. It is claimed on the part of complainant that all the subsequent deeds, being quitclaim deeds, were absolutely void as to the creditors of the estate of Frederick W. Miller, under authority of certain cases cited in argument, to wit, Peters v. Cartier, 80 Mich. 124 [45 N. W. 73, 20 Am. St. Rep. 508]; Messenger v. Peter, 129 Mich. 93 [88 N. W. 209], and cases, cited on page 99 of that case; Pellow v. Iron Co., 164 Mich. 87, see page 99 [128 N. W. 918, 47 L. R. A. (N. S.) 573, Am. & Eng. Ann. Cas. 1912B, 827].

“All these decisions are with reference' to the recording laws of the State, and hold that, if a grantor has actually parted with his title through a quitclaim deed by a prior unrecorded deed, the grantee takes, no title as against the prior unrecorded deed, whether he had notice of the prior deed or not. While the language is. different, according to the exigency of the cases decided, the cases substantially hold that the grantee in a quitclaim deed takes whatever interest his grantor had to convey, or the proposition may be enunciated as follows: He who accepts a quitclaim deed cannot, within the meaning of the registry acts, be a bona fide purchaser and as such entitled to protection against prior conveyances or incumbrances made by his grantor or equities existing against him.

“The only deed made by Frederick W. Miller was the one made to the defendant Frank Anderson in April, 1900, and recorded the same month. Mr. Anderson, who was a witness, claimed that at the time he purchased the land, and that at the time that he conveyed it to Clara Miller for the very price that he paid or agreed to pay Mr. Miller for it, he had no intention to hinder or delay the creditors of Mr. Miller, and knew of no such intention on Mr. Miller’s part.

“I have no reason to doubt Mr. Anderson’s word as to that transaction, but the fact that Mr. Miller made both deals, the first one in which he conveyed the land to Anderson and the second one in which he had Anderson convey the land to his daughter, taken with the testimony of the witness Pobst, leads me to the conclusion that his daughter did not pay any part of the consideration to her father for Anderson, or to Anderson himself for the deed, and I am convinced that at that time he owed one Horace Brown, and that he was seeking to prevent him to collect his debt against him.

“The deed to Clara Miller was recorded on the 26th day of April, 1905. This was notice to the world that she claimed the land. After that, any one whom Miller owed had an opportunity to attack the deed, if he so desired. Miller is dead. What now appears to his discredit might be cleared up were he living to testify. For over six years and nine months, while Miller lived after the deed was recorded, Horace Brown did not attack this conveyance. Neither does his assignee now. Otto Meeske, who is the moving cause of this suit for a debt due him from Miller, did levy an execution on one parcel of the land involved here, but took no further action therein. Five years expired after the levy, and so it became ineffective by lapse of time and operation of law.

“It is true that some conveyances are void as to subsequent creditors of the grantor when credit is given him upon his representations that he is the owner of the land conveyed, or that he is entirely solvent, when in fact he is insolvent. I don’t consider this such a case.

“A reference to the probate files shows the claim of Horace Brown was assigned to Isaac R. Hinds on a transcript of justice judgment filed June 13, 1904, for a judgment of $104.44 damages and $4.05 costs of suit, which judgment was rendered on a prior judgment in the circuit court of this county in a suit between Horace Brown and Frederick W. Miller on June 6, 1894, for^ $7.75 damages and costs of $68.48. The suit in justice court was commenced just before the expiration of ten years after the judgment in the circuit court.

“The transcript of judgment was filed the same year the deed to Clara Miller was recorded, about two months and a half thereafter, but no levy was made to enforce the judgment on the transcript. The only other debt allowed in probate court previous to recording the deed to Clara Miller was that of Otto G. Meeske, _ based on a deficiency in a mortgage foreclosure in 1902, and for the amount of this deficiency an execution was levied on one of the parcels of land involved in this suit, but, as has already been said, five years was allowed to elapse thereafter without anything having been done to settle Meeske’s right in the land as a creditor of Miller, and so whatever lien Meeske hand on the land was lost.

“Some 18 or 20 claims for debts were filed and allowed against the estate, all but the above made subsequent to the record of the deed to Clara Miller, none of which can be said to have been made on the credit of Miller owning the property here in controversy. As this bill must be taken to be for the benefit of all the creditors of the estate, and as a greater part of them cannot say that credit was given the deceased because of his ownership of this property, it seems impossible to maintain this bill. Hedstrom v. Kingsbury, 40 Mich. 636; Smith v. Tolman, 166 Mich. 651 [132 N. W. 471]; Page v. Kendrick, 10 Mich. 300; Gale v. Gould, 40 Mich. 515.

“The proof shows conclusively that the defendant Elbert George paid $725 in money and assumed^ a mortgage on the property of $125 for his quitclaim deed in the utmost good faith, relying upon the statement of Mr. Kniskern, an attorney of this court and representing the estate, that Mrs. Strong (née Clara Miller) had a good title to convey. His equity seems superior to me than that of any of the parties to this suit or of any of the creditors of Mr. Miller.

“A decree dismissing the bill should be made, with costs in favor of defendant George, against Otto G. Meeske, at whose behest the administrator instituted this suit.”

All of the testimony in this record, which is not voluminous, has been carefully read and considered, from which we are satisfied that the learned trial judge arrived at a correct disposition of the case. There is no doubt that the defendant George was a bona fide purchaser of this property in good faith and for a valuable consideration, relying at the time upon the statements of defendant Strong and her solicitor. From an examination which we have made of the opinion and original files and records in the case of Ripley v. Miller (now defendant Strong), 165 Mich. 47 (130 N. W. 345, Am. & Eng. Ann. Cas. 1912C, 952), we are satisfied that the solicitor, as far as the facts contained in that record were concerned and the disposition which was made of the case in this court, might have been justified in making the statement that defendant Strong held the title to the premises. That fact, however, adds to the weight of the evidence in the case of the good faith of defendant George.

The record shows that on April 21, 1913, about 60 days after the case was heard, at the time of the settlement of the decree, solicitor for complainant presented a petition, supported by an affidavit, to open the case for the purpose of taking further testimony on his part. This petition was denied, and the decree of the court was settled and signed. The only mention made of this matter in the briefs of either counsel in the case is a sentence at the end of the statement of facts in the brief of complainant and appellant, as follows:

“The complainant also complains of the refusal of the court to grant his petition for an order opening up the case for further proofs.”

The reason for the court denying the’petition does not appear in the record.

These are matters within the discretion of the court. The practice requires that such applications must be meritorious and show reasonable diligence in obtaining the claimed newly discovered evidence. From an examination of the petition and affidavit, we are not prepared to say that the action of the court was an abuse of discretion.

The decree of the circuit court is affirmed, with costs of both courts in favor of defendant George and against Otto G. Meeske, upon whose application the administrator instituted this suit.

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


text:
    HELIKER v. HELIKER.
    1. Waste — Equity — Action at Law — Adequate Remedy — • Statutes — Injunction.
    The objection that the complainant, in an action to restrain waste, should be relegated to his action at law, under 3 Comp. Laws, § 11116 et seq. (5 How. Stat. [2d Ed.] § 13300 et seq.) is not sustainable since the act does not deprive a court of chancery of its jurisdiction to enjoin such injury to demised premises.
    2. Same — Tenant fob Life — Logs and Logging — Right to Cut Timber — Wills.
    Under a demise by testatrix of real property “to have and to hold, and use and control, as he thinks proper, for his benefit during his natural life,” the life tenant was not entitled to sell or remove timber from the property and was subject to be restrained at the instance of the remainderman, where the evidence established that the timber was not to be used for improvement and betterment of the property which defendant occupied.

    3. Same — Impeachment of Waste.
    Such devise was not without impeachment of waste, and conveyed merely the entire use, income and profit of the lands during the lifetime of the defendant in the usual and ordinary manner in which such premises are used and occupied.

    4. Amendment — Equity—Practice.
    An amendment of'an injunction bill to meet testimony introduced at the hearing showing that waste had already been committed, and praying for an accounting, rests within the discretion of the trial court.
    Appeal from Oakland; Smith, J.
    Submitted October 13, 1914.
    (Docket No. 81.)
    Decided March 18, 1915.

      Bill by Carl B. Heliker against Merlin B. Heliker to enjoin waste. From a .decree for complainant, defendant appeals.
    Affirmed.

      Andrew L. Moore, for complainant.

      William C. Gottman, for defendant.

      Upon the question as to whether the cutting of timber is waste which may be enjoined, see note in 43 L. R. A. (N. S.) 262.

       As to the impeachment of a life tenant for waste in cutting timber, see note in 37 L. R. A. (N. S.) 772.

   McAlvay, J.

The parties to this suit are the sons of Rosamond E. Heliker, deceased, late of the township of Farmington, Oakland county, Mich., who, during her lifetime, held the title in fee to the following described land situated in said township and county, to wit, 42 acres of land off the east side of the west one-half of the northeast quarter of section No. 15. By her last will and testament she made the following disposition of this property (omitting the formal parts):

“(1) I give, devise and bequeath to my beloved son, Merlin Heliker, for and during the term of his natural life, the entire use, income and profit of the following described real estate: (Giving the above description.)

“(2) On the death of the said Merlin Heliker I give, devise and bequeath the last above described property to my beloved son, Charles Heliker.”

The foregoing was the only property disposed of by the will of the deceased mother. The record shows it was admitted upon the hearing that the testatrix died, that her will was duly admitted to probate, that the estate was probated, and this real estate was assigned according to the terms of the will.

The complainant, Charles E. Heliker, is the remainderman mentioned in said will who files the bill of complaint in this cause against defendant, his brother, ,in possession of the property described as the life tenant, who had sold the timber standing and being upon said premises to Bert Simpson, a lumberman who owned a sawmill in that vicinity, with permission to enter upon the premises, cut and remove said timber, and who in accordance with such agreement had entered upon the premises and cut into saw-logs and already removed certain of the best trees standing thereon, and was proceeding to cut more. The bill alleges these facts, and charges that the cutting and removing of said timber constitutes a waste and a loss and irreparable injury to the inheritance and great damage to complainant, and prays for an injunction to prevent the same. A preliminary injunction issued upon filing the bill of complaint. Defendant answered, denying the commission of waste and that complainant is entitled to any relief. Issue was joined upon these pleadings, and the case was heard upon proofs taken in open court. During the hearing it appeared that some of the sawlogs had already been removed by Mr. Simpson and manufactured into lumber. Complainant then asked for leave to amend his bill of complaint and asked for an accounting of waste already committed, which was granted. After the hearing, the court granted the complainant a decree according to the prayer of the bill and permanently enjoined defendant from committing further waste upon said premises, and also for the recovery of $36.84, the undisputed amount of the waste already committed.

The record in the case'is a short one, and the facts are not disputed. The defendant by his counsel upon the hearing stated that he did not desire to introduce any proofs and that the question involved in the case was one of law. He said:

“We claim under the terms of the will that the words in the will, ‘for and during the term of his natural life the entire use, income and profit of the following described real estate (describing it),’ means without impeachment for waste.

“The Court: It is a legal proposition based upon the language of the will.

“Mr. Gottman (counsel for defendant) : Yes, and we propose to stand or fall upon the proposition, and that is the only question we shall raise.”

Thirty acres of the premises in question was cleared farming land. The remainder of about 12 acres was covered with second-growth timber, through which was scattered considerable merchantable saw timber, which was being taken off by Mr. Simpson. No portion of this 12 acres had ever been cultivated. There were no buildings upon the land, and the timber was not cut and removed for the purpose of maintaining fences. Mr. Simpson bought it standing, at so much per thousand, agreeing to pay for it according to the scale. The four trees which he had already cut and removed were of considerable size, measuring at the butts from 28 inches to '33 inches, respectively, and averaged 18 inches at the top. The three oak trees were cut into eight logs which scaled 1,679 feet, an average of over 200 feet to the log. The elm tree was cut into three logs, scaling 650 feet, amounting altogether, at the price agreed upon, to $36.34. The intention on the part of the purchaser was to cut and remove all of the merchantable timber.

The case, upon the admission of defendant, presents but one question, and that is the construction of the following language of the will which created the life estate:

“I give, devise and bequeath to my beloved son, Merlin Heliker, for and during the term of his natural life, the entire use, income and profit of the following described real estate.”

Counsel for appellant, although not demurring to the bill, but answering and joining issue, urges that complainant has a complete and adequate remedy at law. This contention is probably based upon the fact that an action to recover for waste may be maintained under our statute. Of this statute this court upon the question has held:

“This statute giving a right of action in courts of law for waste does not, however, deprive the court of chancery of jurisdiction in proceedings to restrain * * * waste.” Duncombe v. Felt, 81 Mich. 332, 338 (45 N. W. 1004, 1006).

Counsel relies upon two Michigan cases to support his main contention that the life estate created in appellant by the will was “without impeachment for waste.” Stevens v. Rose, 69 Mich. 259 (37 N. W. 205), and Duncombe v. Felt, 81 Mich. 332 (45 N. W. 1004). The first was an action for waste brought under the statute against a tenant under a life lease which was created by the following words:

“To have and to hold, to use and control, as he thinks proper, for his benefit during his natural life.”

The second was a case in chancery where the bill was filed to restrain the cutting and removal of timber and the commission of waste under a life lease, where the lessees, husband and wife, had deeded the land to their son, who gave them the lease, which in terms states:

“This lease being given in consideration of the second parties, having conveyed the premises herein described to the first party. * * * And it is expressly understood that the second parties are to have as full and complete control of said premises, while they or either of them shall live, as though such conveyance had not been made.”

In Stevens v. Rose, supra, the language construed as a leasing “without impeachment for waste,” “to have and to hold, to use and control as he thinks proper for his benefit during his natural life,” is more far-reaching and inclusive than “during the term of his natural life, the entire use, income and profit of the following described real estate,” which appear in Mrs. Heliker’s will. ' The terms of the lease in Duncombe v. Felt, supra, gave to the life tenants as “full and complete control of said premises as though such conveyance had not been made.” Notwithstanding the liberal language creating this life lease, this court, recognizing that it did not include the fee, distinctly held that the life tenant has no right to destroy the inheritance, saying:

“He cannot pull down the buildings or destroy them, or cut and destroy fruit trees, or those planted for ornament and shelter; neither can he be permitted to entirely strip the land of all timber, and convert it into lumber, and sell it away from the inheritance. It is not claimed that the timber is being used for betterments on the premises, but it is admitted that the life tenant is selling it for his own gain and profit.”

In the instant case the trial court found:

“The cutting of the timber was clearly only for profit with the claim of right to cut all of it fit for sawing for the same purpose.”

Our construction of the language in the instant case is that the words “the entire use, income and profit” gave only the entire use, income, and profit of the premises during the lifetime of defendant ordinarily arising from the ordinary and usual manner in which such premises are used and occupied, and it cannot be construed as “without impeachment of waste.”

The bill of complaint set forth a cause of action clearly within the jurisdiction of a court in equity, and complainant has proved a case of active and positive destruction of the inheritance. As to the objection to the amendment to the bill allowed by the court, it is admitted by the appellant that, under the weight of authority, the matter is discretionary with the court.

The decree of the circuit court is affirmed, with costs in favor of complainant.

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


text:
    LAYER v. LAYER.
    1. Compromise and Settlement — Fraud—Wills—Agreement Not to Contest.
    Upon a bill to restrain the heirs of a decedent from prosecuting an action at law against complainants upon a compromise agreement and for an accounting, where the complainants alleged that the agreements upon which the action at la-jv was instituted were procured hy fraud of the defendants, the agreements providing for a settlement of all claims by the several heirs and distributees of' the estate of decedent, and that each of the parties should be entitled to amounts stated therein, the complainants were not entitled to have the compromise set aside on the ground of fraud because it appeared that decedent had receipts of the defendants in his possession at the time of his death in full payment of all claims against his estate and which were in the possession of the executors of the estate.
    2. Same — Duress—Threat to Contest Will.
    An alleged threat made hy certain heirs of decedent to contest his will, whereby they were given a nominal amount, made in good faith with the purpose of-carrying out the alleged intention, was not such duress or fraudulent action upon their part as would require the court to set aside a compromise agreement made with other persons in interest adjusting the claims of all of the legatees.
    S. Same.
    Courts as a rule favor the settlement of disputed matters, especially between parties interested in the estates of deceased persons: the promise to forbear contesting a will is sufficient consideration to support a contract for the adjustment of the respective claims and rights of the persons in interest.
    4. Same — Uncertainty—Written Contracts.
    A contract in writing made by the legatees of decedent’s estate, setting up the fact that decedent by his last will made provision for the heirs named in the agreement, and that he gave nominal amounts to two of them, and that they threatened to contest his will, that the parties were desirous of settling the estate in an amicable manner, and that in consideration of the payment to each of said legatees of one-eighth of the estate after deducting the necessary expenses of administration and indebtedness of the decedent, who on their part agreed not to file objections, contest the will, or file any claim against the estate, was not void for uncertainty and ambiguity.
    Appeal from Kent; Perkins, J.
    Submitted April 27, 1914.
    (Docket No. 141.)
    Decided March 18, 1915.
    Bill by John Layer,. David Layer, and Christian Layer against Jacob Layer and others for the cancellation of a certain contract and for .other relief. From a decree for defendants, complainants appeal.
    Affirmed.

      Swarthout & Master, for complainants.

      Linsey & Shiv el, for defendants.
   McAlvay, J.

Complainants in this cause filed their bill of complaint in the Kent circuit court, in chancery, setting up fraudulent conduct on the part of defendants, and praying that defendants be enjoined from prosecuting certain lawsuits against them, and also to restrain them from parting with a certain contract set forth in the bill of complaint, or attempting to collect anything under said • contract from the complainants, and that said contract be declared null and void, the same to be delivered up to be canceled, also for an accounting between defendants and complainants and the estate of John Layer, deceased, who was the father of the parties to this suit, also praying that certain destroyed contracts mentioned in the bill of complaint be re-established, and an adjustment of the respective rights and interests of the parties to this suit be decreed to avoid a multiplicity of suits, and for general relief.

Defendants answered in the nature of a cross-bill, denying all fraudulent conduct on their part and asking that the court hold the contract referred to made between these parties valid and in full force, and to grant them affirmative relief under it; and decrees for money judgments against complainants for the several amounts named in such contract according to its terms. Issue was joined upon these pleadings, and the cause was heard before the court. A decree was granted by the court against the complainants and in favor of defendants, dismissing the bill of complaint and holding the agreement in controversy binding and in full force, and decreeing the complainants severally to be indebted to defendants in the several amounts as stipulated in said contract, and further decreeing that complainants pay the same, together with taxable costs attendant upon six suits which were enjoined at the time this suit was instituted, and also granting a decree against the sureties upon the bond filed in said cause as provided by law, according to the terms of said bond; and for all costs.

The dispute in this case is one between the members of the same family, the heirs of one John Layer, Sr., who died testate in August, 1910, aged 86 years, having made a will on May 3, 1906. His estate was. duly probated, leaving the sum of over $36,000. to be distributed after paying expenses of administration. By the provisions of the will defendants were given the nominal sum of $10 each in addition to certain advancements made to them, and the balance of the estate, including advancements, to be divided equally among the remaining children. Three of the heirs of John Layer are not parties to this suit, namely, Daniel Layer, Catherine Loree and Lydia Simpson. It will not be necessary to set forth a copy of the will in this opinion for the reason that there is no controversy upon the will. By reason of the practical- disinheritance of defendants by the terms of the will, they retained counsel to contest its validity. Prior to September 27, 1910, the date set for the probate of the will, for the purpose of settling their difficulties, an agreement was prepared by defendants’ counsel to be entered into by all the heirs, to equalize the disposition made by the will, which was practically an equal division of the estate, and by its terms defendants, if it was agreed upon, bound themselves not to contest the will or present any claims against the estate for care of said deceased, or other claims. This was then signed by both defendants and Catherine Loree and Daniel W. Layer, on September 22, 1910. None of the others signed this agreement.

The following undisputed facts would better be stated in this connection: About eight years before his death John Layer, Sr.j and his wife, the mother of these children, went to make their home with the defendant Emma Klipfer and her husband, where they lived 14 months, when the mother died. A few months after the mother’s death the father had a disagreement with Emma and her husband and then went to live with the defendant Jacob Layer, where he remained about one year, when they disagreed and the father left. He then went to live with his son John Layer, where he remained until his death. Before deceased, John Layer, Sr., left the home of Emma Klipfer two settlement agreements were entered into and signed by them, dated July 6, 1904. These are of the same import and do not require to be stated at length. They purported to be a mutual settlement of all matters between them, including the purchase and sale of a farm and a receipt for full payment of the farm and release from all liability to support him and for care and support of himself and deceased wife. These writings made no reference to the estate of John Layer, Sr. When deceased left Jacob’s home there is proof tending to show that he took from Jacob a receipt for board, which the son snatched from his father and burned.

The grounds upon which defendants proposed to contest the will were mental incompetency, undue influence, and insane delusions. The negotiations between the parties were not completed on September 22, 1910, but were renewed on the date fixed for the probate of the will and. resulted,' on that date, September, 27, 1910, in an agreement of settlement, in which all joined. This new agreement was reduced to writing and was signed by all of the heirs of said deceased. It reads as follows:

“This memorandum of agreement made and entered into by and between Jacob Layer and Emma Klipfer, known as parties of the first part, and David F. Layer, Catherine L. Loree, Lydia Simpson, Daniel W. Layer, John H. Layer, and Christian Layer, hereby known as the parties of the second part, each for himself, separately and individually, on this 27th day of September, A. D. 1910, witnesseth: Whereas, _ the said above-mentioned parties are each and all direct heirs of one John Layer, now 'deceased; and whereas, the said John Layer, deceased, did on the 3d day of May, 1906, execute and make a certain instrument, purporting to be his last will and testament, which said will is now offered for probate in the probate court, in the county of Kent and State of Michigan; and whereas, the said John Layer, deceased, did in his said will make certain provisions for the said above described heirs, in and to the property which he would die seised; that in said will he provided that the said first parties, Jacob Layer and Emma Klipfer should have of his said estate, the sum of $10 each; and whereas, the said first parties were about to contest said will in said court, and about to file objections to the probate of said will:

“Now, therefore, each and all of the said parties being desirous of settling said estate in an amicable manner, and without any lawsuit or contest in court, said first parties hereby agree not to contest said wifi in any court and allow the same to be properly probated without contest on their part for and in consideration of the promises hereinafter made by and on the part of each of said second parties each individually and for himself. Said first parties hereby agree not to present any claims against said estate for the care of said deceased, or other claims whatsoever.

“Each of said second parties hereby agree for and in consideration of the above undertakings and promises of said first parties to pay to each of said first parties a sum of money equal to one-eighth of said estate after the debts and expenses of administration are fully paid minus $1,000.00, after the advancements heretofore made to Jacob Layer of one thousand dollars, and the advancements of thirteen hundred dollars made to Emma Klipfer have been properly credited to said estate in like manner as the various advancements made to each of the parties of the second part has been credited to said estate. The meaning of this agreement in this particular is that each of said second parties shall pay to each of said first parties their equitable portion of said sum of money to be paid to said first parties as aforesaid, after said second parties receive their share of said estate under said will.

“In witness whereof we each for ourselves have hereunto set our hand and seal on the day and year first above written.

“Jacob Layer.

“Emma Klipfer.

“Catherine L. Loree.

“Lydia Simpson.

“Daniel W. Layer.

“David Layer.

“John H. Layer.

“Christian Layer.”

After the foregoing settlement was made and agreed upon, counsel for defendants consented to the admission of the will to probate, and defendants did not contest the will or present any claims against the estate of John Layer, deceased. The record shows that the probate files in the matter of the estate of John Layer were offered and received in evidence, but with the exception of the will nohe of such probate proceedings are printed in the record. However, it is not disputed that the estate of John Layer, Sr., was duly probated, distributed according to the terms of the will, and closed. Three of the heirs, according to the terms of the settlement agreement, after receiving their shares of this estate, paid their respective portions to each of the defendants. The three complainants, who are the other heirs, although requested to perform on their part, refused to pay anything to the defendants or either of them. These defendants, on September 22, 1911, almost one year after this settlement was made, severally brought suits against each of the complainants in assumpsit upon this contract for the amount each had agreed to pay. In these cases each defendant pleaded to the declaration filed therein and, after the cases were noticed and placed on the calendar for trial, filed their bill of complaint in the instant case November 28, 1911, wherein defendants were restrained from further prosecuting such cases on the law side of the court.

The principal question in the case relates to the validity of the contract in question entered into between the defendants and all the other heirs of John Layer, Sr., deceased. Complainants attack its validity upon three grounds: First, that there was no consideration; second, that the contract was fraudulently procured by the defendants; third, that it is void for uncertainty; that it is contradictory and indefinite.

We may consider the first and second grounds together. It would seem that the principal ground of fraud is based upon the claim that complainants were not aware at the time they entered into this agreement, that deceased had certain settlement receipts from defendants which were given by them at the time he left their home. These receipts, taken in connection with some of the uncontradicted testimony in the case, could have no bearing upon the matter of the settlement contract except, perhaps, as to the following clause:

“Said first parties [the defendants] hereby agree not to present any claims against said estate for the care of said deceased, or other claims whatsoever.”

The complainants claim that they had no knowledge of the existence of these receipts until after the settlement was made, and would not have entered into the contract had they known of them. Either one or both of the receipts were found in the safe of the deceased and were, after his death, in the possession and control of two of the complainants, who were named executors in the will. The clause above quoted, contained in the agreement as finally executed, was not part of the agreement first offered as a settlement by these defendants which the complainants refused to execute. It is contained in the final agreement, which the undisputed record shows was submitted to complainants’ solicitors and signed in their office in the presence of one of them by the complainants, after having advised with him upon the matter, and there is no proof in the record that defendants had ever received anything from the deceased father which should be charged against them in the distribution of the estate except the advancements which were known to complainants. As to the receipt given by the father to his son Jacob, there is no evidence in the case which indicates that it was anything more than a receipt for 'board. Had these writings, including the one given to Jacob, been all of the said character, neither one of them would furnish any legal ground upon which complainants would have a right to repudiate their contract.

Complainants in their brief claim that the contract as executed is not the contract which they intended to execute. In addition to what has been said as to when, where, and under what circumstances this contract was executed, we do not 'find in the record that any fraud was practiced upon the complainants or the other heirs by defendants in the procurement of this contract. At the time it was entered into all of the parties knew of its contents and the record shows that they signed voluntarily, with full knowledge of all the facts and circumstances that had preceded its execution, and after consultation with their solicitors who were aware of its contents.

It appears from the record that the defendants had intended to contest the probate of the will and had so stated, and undoubtedly had also stated they would do so if the matter could not be adjusted amicably. In taking this position they were strictly within their legal rights and such statements do not amount to duress or even threats if made in good faith.

There is nothing in the record to show that the position of defendants in this matter was not founded upon an honest belief that they had a right to contest the probate of this will. On the contrary, the evidence in the case indicates that the condition of the father mentally was of such a nature that there was talk in the family of having a guardian appointed; that at times he indicated mental unbalance; and also evidence indicating great influence had over him by the wife of complainant John Layer.

The courts, as a general rule, favor the settlement of disputed matters and controversies, and more particularly are. the settlements of disputes among those interested in the estates of deceased persons favored. It is a well-settled rule of law in this State and many other States that a promise to forbear the contest of a will, when made in good faith, is a sufficient consideration to support a contract. Conklin v. Conklin, 165 Mich. 571-580 (131 N. W. 154).

There is no evidence in this case to show that defendants were not in good faith in the matter of contesting the will of John Layer, Sr., deceased. On the contrary, their good faith is supported by the great weight of the evidence.

This agreement was not void for want of consideration, nor was it void for ambiguity and uncertainty. We agree with the learned circuit judge that it should be enforced.

The decree of the circuit court is, in all respects, affirmed, and a decree will be entered in this court of like terms and effect, with costs of both courts in favor of defendants and against complainants to be taxed.

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