text:
    CUMMIN v. BALDWIN.
    Guardian and Ward —Final Accounting — Appeal prom Probate Court — Issue.
    Where, upon a guardian’s appeal from an order of the probate court charging him in his final account with the value of the ward’s interest in property sold, the circuit judge found that no valid sale was effected, it was proper to allow the basis of the account to be changed to a charge for rent, since the appeal brought the whole matter before the court for final adjudication.
    Error to Shiawassee; Smith, J.
    Submitted January" 12, 1900.
    Decided February 20, 1900.
    Judicial accounting by Stephen Baldwin, as guardian of the estate of Alexander Cummin, a minor. From the judgment rendered at the circuit upon his appeal from probate court, the guardian brings error.
    Affirmed.

      Albert L. Chandler and T. E. Tarsney, for appellant.

      Kilpatrick & Pierpont, for appellee.
   Long, J.

It appears that defendant was appointed guardian of plaintiff and his brother and sister on November 1,1883. These children were possessed of certain real property in Corunna, Shiawassee county, which had descended to them from their mother. The property consisted of a house and certain lots and a store. They were equal owners t>f this property. In December, 1896, defendant filed his final account as guardian of the plaintiff in the probate, court of Shiawassee county. It there appeared, and was found by the probate court, that defendant was indebted to his ward in the sum of $543.04. Defendant took an appeal from the probate court, and on the hearing in the circuit court a jury found him indebted to his ward in the sum of $423.62; this verdict being made up of rent of store, rent of house not collected, and interest money. Defendant appeals.

On the hearing below it appeared that in April, 1887, defendant sold and conveyed the house and lots belonging to these three children for $600. No proceedings were taken in court to devest the interest of the plaintiff; the defendant claiming that he never knew that plaintiff had any interest in the property, but supposed that it belonged entirely to the other two children. It is conceded that his interest was never devested. The plaintiff contended on the hearing that the defendant should be charged with the rent of the premises. Proofs were allowed to show the rental value of these premises. The court charged the jury on that question as follows:

“It was claimed here in the case that there was no rent credited to the minor for the house property, for the reason that he understood that this ward had no interest in it. Now, the question for you to determine is whether a man, in the fair and diligent discharge of his duty, would not have looked up that title, to see what there was about it, so as to find out what his ward had there. A man might be just as negligent in not looking it up as in not getting the rent for it after he did take it. I have ruled out that question of the property he sold and gave a deed to Leonard, from the fact that he could not convey anything that belonged to this ward without having an order from the probate court, and the minor still owns an interest in the house and property.” '

At the close of the testimony, it appears, counsel for defendant made the following motion:

“I move to strike out the testimony produced relative to the rental of the house property. I base that motion upon this ground, which is a well-settled rule of*law: That, in appeals from probate court, we must try the same matter which was presented before the judge of probate, and that no amendments could be permitted interposing any new claim of a different character than that passed upon by the judge of probate. When this matter was pending before his honor Judge Bush, Mr. Baldwin presented his account as it is presented here; and due notice was given, under the law, for a hearing upon that account. A hearing was had upon the account, and the minor appeared by attorney in that court, as he appears here, and contested the amount (that is, he contested the items), and filed a claim in the nature of a counterclaim against that account, or, rather, supplemental to the account, and charged that Mr. Baldwin should be required to pay the value of one-third of the house property, — the home property, — which Mr. Baldwin sold Mr. Leonard. That claim was made specifically in writing, and stated to be $200, and the interest upon it; and that was the issue in that court below. Mr. Baldwin was not there to consider it, and that branch of the claim was allowed. From that, and in fact from the entire order, an appeal was taken to this court by Mr. Baldwin. Now, here we are presented with this proposition upon the .record. I understand the claim is now abandoned for compensation for one-third of the purchase or selling price of the party, but in lieu of that they seek to substitute a new claim, — the first time heard cf upon this record, — charging rent for the undivided one-third which they sought to recover for in the court below; that is, the value of it. Now, I concede that amendments are properly admitted in cases of appeal from probate court. In cases of appeal from justice’s court, they must be such amendments, however, as. pertain to matters that were considered in the court below; in- other words, no new substantive issue can be made.”

This was denied, and the charge as above was given. This constitutes the main question in the case. We think the court below was not in error in permitting the ward to go into the whole account of the guardian. The proceedings were upon the guardian’s final account. It is a very different case from that of Patrick v. Howard, 47 Mich. 40 (10 N. W. 71), relied upon by counsel for the guardian. It is true that, before the probate court, the ward claimed that the guardian should account for the value of one-third interest in the property which it was claimed the guardian had sold. The circuit court held that the deed made by the guardian did not convey that interest, and charged him with the rental value of that interest for the time. But the whole claim was brought into the circuit court by the appeal. Showers v. Morrill, 41 Mich. 700 (3 N. W. 193). It would not be just to depi’ive either party of the right to correct errors in the account, or to deprive the ward of the right to change the basis of the account in the circuit when equity required it. The matter before the probate court was the final adjustment and determination of the guardian’s account. That was the matter before the circuit court. The only change made in the issue was the basis of the accounting. This the circuit court had the power to do.

Some questions are raised as to the testimony admitted showing the rental value, but we are satisfied that no error prejudicial to defendant was committed in the introduction of testimony.

The judgment below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BISSELL v. HIVELY.
    Mortgages — Payment—Default of Agent — Rights of Assignee.
    Where one gave a mortgage to a loan agent upon the latter’s agreement to apply the proceeds in discharge of prior outstanding mortgages, and the agent, after selling the mortgage, which contained a covenant against incumbrances, to a client who purchased without notice, failed to pay off one of the prior mortgages, and the same was thereafter foreclosed, it was improper to provide in the decree that the later mortgage should be reduced by the amount of the mortgage in suit, since, as between the mortgagor and the assignee of the later mortgage, the results of the default of the loan agent should fall upon the mortgagor.
    Appeal from Montcalm; Davis, J.
    Submitted January 30, 1900.
    Decided February 20, 1900.
    Bill by Annie A.. Bissell against David J. Hively, Mary A. Hively, Mary B. Stanton, and others, to foreclose a mortgage. From a decree for complainant, but granting defendants Hively relief against defendant Stanton, a subsequent mortgagee, the latter appeals.
    Modified.
    Defendant David J. Hively is tbe owner of a farm of 120 acres, covered by the two mortgages involved in this suit. On January 20, 1885, he executed a mortgage for $500 on 40 acres of land to one Soverhill, of Geneva, N. Y. The mortgage and note were made payable at the office of Samuel S. Walker, St. Johns, Mich., who negotiated the loan for Hively. By assignments duly made and recorded, the mortgage and note became the property of the complainant, who filed the bill in this case to foreclose her mortgage. The mortgage and note were never in the custody of Samuel S. Walker, Walker & White, or the Michigan Mortgage Company, after the delivery to Soverhill. Defendant Hively and his wife had also executed two other mortgages upon his land, known as the “ Hunt” and “Langdon” mortgages; one for $800, the other for $1,000. These three mortgages were in existence in 1888. In July, 1888, defendant, desiring to procure a loan of $2,500 to take up these three mortgages, applied in writing to Walker & White for a loan of $2,500 for that purpose, upon 120 acres of land. Various letters passed between them, which finally resulted in the giving of a mortgage for that amount to Walker & White, who assigned it, before due, to Mrs. Stanton. Upon the execution and delivery of the same to Walker & White, they gave an agreement to Hively to apply the proceeds of the same in payment of these three mortgages. Mr. Hively at the same time executed to Walker & White a commission mortgage for $125. Mrs. Stanton resided in the State of New York. Her husband, who had an office in Detroit, attended to her business, and negotiated this loan. The mortgage contains the usual covenants of title and against incumbrances. Mrs. Stanton had purchased several mortgages previous to this time through Walker & White. One mortgage for $2,000 was then about due. Walker & White wrote her that, if she desired this mortgage, to send $500 more, which, with the amount of the other mortgage, when collected, would be sufficient. She did this, and in due time received the note and mortgage in question, which she has ever since held in her possession. Walker & White paid and procured the discharge of the Hunt and Langdon mortgages, but not until considerable correspondence between them and Mr. Hively, who, on January 26, 1889, wrote Walker & White that he wanted the matter closed up at once, as he was running a big risk in having two mortgages on record for one debt. The mortgage owned by complainant was never paid. She filed her bill to foreclose in April, 1896. In June following, defendant Hively answered, alleging payment of the Bissell mortgage. In April, 1897, he was permitted to file an amended answer, in which he set up that Walker & White were the agents of Mrs. Stanton; that she had full notice of Walker & White’s agreement with Hively; and alleging that either complainant’s mortgage is paid, or that defendant Stanton’s mortgage is reduced by the amount that Walker & White ought to have applied to pay complainant’s mortgage under their agreement with Hively. The case was heard upon pleadings and proofs taken in open court. Complainant’s mortgage was sustained, and decree entered in her behalf; but the court held that the defendant Stanton’s mortgage should be reduced by the amount of the mortgage held by complainant, thus reducing her mortgage to $1,564.53. From this decree she appeals.

      Cfeorge P. Stone, for complainant.

      Edwin H. Lyon, for defendants Hively.

      James H. Brewster, for defendant Stanton.
   Grant, J.

(after stating the facts). It is unnecessary to enter into a lengthy discussion of the case, or to make a detailed statement of the facts. Walker & White were the agents of Hively in negotiating this loan. Neither complainant ñor defendant Stanton had any notice or knowledge of the agreement between Hively and Walker & White. Neither was there anything in the transaction to put either upon inquiry. The agreement was a personal one between Hively and Walker & White. Hively knew, some time after the Stanton mortgage was given, that complainant’s mortgage was not discharged, yet he took no steps to notify complainant, or to secure the performance of his contract with Walker & White, except to write Walker & White, insisting upon its performance. After the other two mortgages were discharged, he made no effort to ascertain whether complainant’s mortgage had been paid. He knew that the business of Walker & White was negotiating loans, and that the mortgage and note given by him to them were liable To be assigned to bona fide purchasers. Hively had given •his covenants against incumbrances, thereby representing to the mortgagees and their assignees that the mortgage was a first lien upon the land. Upon these covenants Mrs. Stanton, in making her purchase, had the right to rely. Hively is bound by his covenants. That Mr. Hively fully understood the situation, and understood that Mrs. Stanton’s mortgage was valid for the entire amount, is evidenced by his correspondence with her and her husband after the failure of the Michigan Mortgage Company, in which correspondence he expressly recognizes its validity, pays interest on the full amount, and asks for an extension of time. Mr. Hively voluntarily executed a mortgage and note which were negotiable, and placed them in the hands of Walker & White, relying upon their agreement to apply the proceeds thereof in payment of his other three mortgages. The result of the failure of Walker & White to carry out that agreement cannot be visited upon prior mortgagees, or upon the innocent assignee of the mortgage given by him to Walker & White.

The decree is affirmed as to complainant, and reversed as to defendant Stanton, with costs against defendant Hively.

The other Justices concurred.


text:
    PEOPLE v. KALUNKI.
    1. Criminal Law — Assault with Intent to Murder — Appeal.
    It appearing on a criminal appeal that a verdict of guilty of assault with intent to do great bodily harm less than murder was supported by the evidence, and was rendered after full and fair instructions in regard to the various offenses embraced in the information, which was for assault with intent to murder, the conviction was affirmed.
    2. Same — Requests to Charge — Reeusal.
    Where, on a prosecution for assault with intent to murder, the court instructed the jury fully as to the various offenses embraced in the information, including the offense of which respondent was convicted, it was not error to refuse to give a. requested instruction that there is no offense known as ‘ ‘ assault with intent to commit manslaughter.”
    Error to Houghton; Haire, J., presiding.
    Submitted February 1, 1900.
    Decided February 20, 1900.
    Peter Kalunki was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for four years in the state prison at Marquette.
    Affirmed.
    Under an information charging assault with intent to commit murder, respondent was convicted of an assault with intent to do great bodily harm less than the crime of murder. He struck the complaining witness in the face with an ax, cutting off a piece of the cheek bone and breaking off the bone connecting the cheek bone with the side of the head. He claimed to have inflicted the blow in self-defense.

      W. J. Macdonald, for appellant.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). It is urged that the court should have directed a verdict of acquittal, for the reason that the respondent was in his own house, and that the complaining witness was an intruder between 8 and 9 o’clock at night, and that respondent used only such means as appeared necessary to him to eject the intruder. We think there was ample testimony to justify the jury in finding that the respondent entertained the intent of which he was convicted.. The parties were Finns, whose custom it is to enter the houses of each other without knocking. Respondent’s home was in the second story, approached by an outside stairway. He had had trouble with the parties living below, and the evidence is sufficient to justify the conclusion that he supposed that one of the parties below was ascending the stairway. The instructions given were very full, and were a correct statement of the law in regard to the various offenses included in the information and the defenses set up.

Complaint is made that the court did not, as requested, say to the jury, “There is no offense known as assault with intent to commit manslaughter.” It was entirely unnecessary or unimportant to so instruct the jury, so long as the court did instruct them as to the essential elements constituting the crime for which he was convicted.

We find no error, and the conviction is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    FIRST NATIONAL BANK OF IONIA v. GILLAM.
    Trusts and Trustees — Mortgages — Foreclosure — Applioa tion of Rents — Taxes.
    Defendant was made trustee for creditors under first and second- mortgages, and was invested by separate agreement with title to, and charged with the duty of collecting, the rents and income of the property for the term of five years; it being provided that his right to such rents and income should cease if the property should be sooner sold under either mortgage. Each mortgage contained a clause reserving to the mortgagor the right to sell any of the property, and apply the proceeds to the indebtedness secured. The second mortgage having been foreclosed for nonpayment of interest, and the property bid in by the trustee for complainants (the beneficiaries therein), the latter disputed the right of the trustee thereafter to pay, out of the rents and income, taxes upon the property, assessed, not to him as trustee, but to the mortgagor, and filed a bill to compel him to pay over to them all moneys received subsequent to the foreclosure sale. Held, that complainants ^were entitled to the moneys; that the trustee’s right to make payment of taxes under the special agreement was terminated by the sale.
    Appeal from Ingham; Person, J.
    Submitted February 2, 1900.
    Decided February 20, 1900.
    Bill by the First National Bank of Ionia and others against George F. Gillam to compel the payment of rents collected by him as trustee. From a decree for complainants, defendant appeals.
    Affirmed.

      V. H. & H. TI. Smith and A. F. & F. M. Freeman, for complainants.

      Thomas, Cummins & Nichols, for defendant.
   Moore, J.

On September 19/1893, Orlando M. Barnes and wife executed to the defendant in this case, as trustee for complainants, a certain mortgage covering lands therein described. This mortgage was made subject to another mortgage executed by the same parties to the defendant in the case as trustee for certain other creditors. This latter mortgage was given on the 23d day of August, 1893. On September 19, 1893, Mr. Barnes and Mr. Gillam also made an instrument containing the following provisions :

“Now, therefore, in order to better secure the payment of all said mortgages, and render the last-made mortgage a better security, this instrument witnesseth:
First. That the said Orlando M. Barnes has appointed the said George F. Gillam his agent to take the charge and care of the real estate embraced in said last-made mortgage, situate in the city of Lansing and in the township of Lansing, and has authorized, and does hereby authorize, him, the said Gillam, to ren-t the said property, so far as the same can be rented, upon such terms as he may deem just and fair. Such renting may be in the name of said Gillam as trustee, or in the name of Orlando M. Barnes, as may be deemed best.
Second. The said Orlando M. Barnes has transferred, and does hereby transfer, to said George F. Gillam, in trust, all the rents and income that may accrue on all said real estate for the period of five years from this date, or until the said mortgages are paid, if sooner paid. But if any of the said real estate is sold in the meantime under said mortgages, or any of them, or if any is sold by the parties hereto in order to make payments upon the mortgage debt, then the right to rents and income upon said property ceases. The said Gillam is authorized and empowered to collect all rents and income that may become due on said real estate, whether such real estate be now rented or be hereafter rented.”

Both the mortgage of August 23d and the mortgage of September 19th]contained this clause:

“ It is deemed expedient that any of the said lands embraced in this mortgage be sold whenever a fair and satisfactory price can be obtained therefor, before the end of the said time limited. It is therefore expressly agreed that, whenever the parties of the first part can effect a sale of any of the lands at a price and on terms satisfactory to both parties hereto, the said party of the second part shall release the lands so sold and contracted to be sold from this mortgage; the money arising from such sale, after paying the cost of making the same, and any liens that may be upon such lands prior to this mortgage, to be paid pro rata on the indebtedness hereby and herein secured. ”

It will be remembered that Mr. Gillam was acting as trustee for the beneficiaries under the mortgage of August 23d, among which beneficiaries was the Central Michigan Savings Bank, at whose request this appeal is taken. The complainants in this case are the creditors named in the second Gillam mortgage. In 1896 Mr. Gillam, as trustee for the complainants, filed a bill to foreclose their mortgage for nonpayment of interest; and on July 19, 1897, the premises were bid in by Mr. Gillam, as trustee for complainants, for the sum of $605. Mr. Gillam still continued in possession of the premises, and collected the rents and income, after the foreclosure sale, and applied them to the payment of taxes, as usual, until the following spring of 1898, when his right under the assignment to pay taxes on the premises was denied by complainants ; they claiming the right to the rents and income from the property from the date of their deed, to wit, July 19, 1897. This bill of complaint was filed to compel the defendant, as trustee for complainants, to pay to them money which he had collected as rents and income from said property from the said 19'th day of July, 1897. It was conceded upon the hearing that the amount in Mr. Gillam’s hands as rents and profits from said property, after deducting the credits to which said defendant was entitled, was the sum of $2,433.36, all of which had accrued since July 19, 1897. It was admitted that the amount of taxes assessed against the property on the July roll for 1898 was the sum of $1,264.49, and for the entire year of 1898 the sum of $2,597.17. At the time the July taxes referred to became due and payable, the defendant, Mr. Gillam, had in his hands sufficient funds with which to pay the same, and would have paid the same had it not been for the doubt in his mind as to whether he had a right to do so. From a decree requiring the trustee to pay over all the money in his hands to the complainants, an appeal is taken, nominally by the trustee, but really by the Central Michigan Savings Bank.

A question is raised here about the right of the Central Michigan Savings Bank to intervene, as it is not a party to the record. In our view of the case, it is not necessary to discuss that question. It is very evident this is a contest between the beneficiaries under the respective mortgages to see who shall be compelled to pay the taxes of 1898. The taxes were not assessed to the trustee, but were assessed to Orlando M. Barnes. The trustee was notified by the complainants not to pay them, and he has not done so. It is strongly urged here that whether Mr. Gillam received the rents and profits as trustee under the instrument of September 19, 1893, or whether he received them by reason of having bid the lands in for the complainants at the mortgage foreclosure sale, the rents and profits should be used to pay the taxes upon the land. The learned circuit judge filed a written opinion, in which he expressed himself as follows:

“The agreement by which Mr. Barnes turned over the rents to Mr. Gillam in trust for payment of taxes and other expenses expired under the sale of the last-given mortgage. Mr. Gillam’s right to possession under that trust then terminated, and his right to possession as purchaser in trust at the sale under the third mortgage began. He will be held to have been in possession under the sale as such purchaser, and in that capacity to have received the rents. The beneficiaries under the first Gillam mortgage [second mortgage] had no interest in these proceedings by virtue of the said agreement. If it is the duty of Mr. Gillam, as owner of the equity of redemption through his purchase, to pay the taxes, yet the only way for the beneficiaries under the first Gillam mortgage to enforce that duty is to themselves pay the taxes, and add the amount to their security. The beneficiaries under the first Gillam mortgage have, therefore, no legal interest in the proceedings. The State is not interested in these proceedings. The lands were not assessed to Mr. Gillam, and the taxes never became a personal charge against him. The lands have been returned, and the State has no claims upon the rents in Mr. Gillam’s hands. So far as Mr. Gillam did pay taxes, he paid them rightfully. It was his duty, in the interest of the beneficiaries under the third mortgage, to pay those taxes,— at least, until they had expressed their wishes against payment. But, as to the other taxes due and unpaid, Mr., Gillam is under no duty to make payment in the interest of the beneficiaries under the third mortgage. They have forbidden such payment. He is under no duty to make payment in the interest of the State, for the taxes were not assessed to him personally. He is under no duty as to the prior mortgagees, as we have before stated. Mr. Gillam therefore should account to the beneficiaries under the third mortgage for the rents he has received since the sale under that mortgage, and he should be credited with his proper expenses, including such taxes as he has paid, and a reasonable compensation.”

The language of the written instrument under which Mr. Gillam was authorized to collect the rents and profits is not ambiguous in its terms. When the complainants became the owners of the land by virtue of the foreclosure sale, they became entitled to the rents and profits. We are satisfied that the circuit judge made a right disposition of the case.

The decree is affirmed.

The other Justices concurred.


author: Long, J.

text:
    BROWN v. HOUGHTON MINERAL LAND & MINING CO.

    Taxation — Proceedings Against Delinquent Lands — Objections— Sessions oe Court.
    A taxpayer was sufficiently protected in the right, given him by section 66 of the tax law of 1893, to appear and ask leave to file objections to the tax at any time within five days after the day fixed for hearing the auditor general’s petition for the sale of the land, where the court was in session continuously from November 10th, the day set for the hearing, to and including the 14th, and then adjourned until Monday, the 16th, when the decree was made and entered. Gates v. Johnson, 121 Mich. 663, followed.
    Appeal from Alger; Steere, J.
    Submitted January 5, 1900.
    Decided February 20, 1900.
    Bill by Charles R. Brown against the Houghton Mineral Land & Mining Company to quiet title. From a decree for complainant, defendant appeals.
    Affirmed.

      C. JR. Brown & Son, for complainant.

      Cook & Pelham, for defendant.

       Rehearing denied June 5, 1900.

   Long, J.

The bill in this cause was filed to quiet complainant’s title to certain wild and unimproved lands. The complainant claims title under a tax deed made upon a sale of the lands for the delinquent taxes of 1894. The only question in the case is whether the sale was invalid because the court did not remain in session the number of days required by the statute in order to give the delinquent taxpayers opportunity to present objections to the auditor general’s petition.

Section 66 of the tax law of 1893 (Act No. 206, IJub. Acts 1893) provides:

“If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days.”

It appears that the time fixed for the hearing of the auditor general’s petition was Tuesday, November 10, 1896. The court convened on that day, and continued to hold regular, daily sessions thereafter until and including Saturday, November 14th, and on that day adjourned until Monday, November 16th, on which day it held its session, and entered the decree upon which the sale of the land was made, and adjourned sine die. The landowner neither made nor filed any application for further time in which to file his objections to the relief prayed for in the auditor general’s petition. The complainant purchased the lands at the regular annual tax sale thereafter. It is the contention of the defendant that it had five full secular days, of 24 hours each (in each of which a session of the court was had), after the day fixed for hearing the petition, in which to apply for further time to file objections, and that no decree could properly be made and entered until the sixth secular day after the hearing.

We think the case is controlled by Grates v. Johnson, 121 Mich. 663 (80 N. W. 709). There the time for hearing the petition was fixed for November 13th. The court was in session November 13th to November 17th inclusive, and adjourned until the next day, but did not appear on the next day (the 18th). The decree was made on the 23d following. This was held a sufficient length of time for the taxpayer to present his objections, under the statute. In the present case the court was in session continuously from November 10th to the 14th inclusive, and then adjourned until Monday, the 16th, when the decree was made and entered. This was a sufficient length of time fixed by the statute.

The decree below must be affirmed, with costs.

The other Justices concurred.


text:
    GILLAM v. BARNES.
    1. Mortgages — Trusts—Beneficiaries—Acceptance-^- Decree on Foreclosure.
    A trust mortgage given to secure the mortgagor’s release from liability as indorser upon his son’s notes, and the substitution of the notes of the son unihdorsed, may become operative at once as to an insolvent beneficiary ( a bank) in the hands of a receiver, where such is the clear intention of the parties, although the bank has negotiated the indorsed notes, and, because of its insolvency, is unable immediately to pay them in full and obtain their surrender by the holder; but the decree on foreclosure of the mortgage should provide for an appropriation of the moneys received thereunder to the payment of such notes, and for their subsequent surrender to the mortgagor.
    2. Same — Priorities.
    A trust mortgage, in terms subject to an earlier mortgage, will not be given priority merely because the beneficiaries in the earlier mortgage, to whom the mortgagor was actually indebted for a valid, subsisting debt as indorser on his son’s notes, delayed, until after the second mortgage was executed, to signify their acceptance of conditions requiring them to surrender the indorsed notes, and receive in lieu thereof the son’s notes unindorsed. Ladue v. Railroad Co., 13 Mich. 393, distinguished.
    3. Same — Evidence of Claim — Production in Supreme Court.
    An objection, raised on appeal from a decree of foreclosure of a trust mortgage, that one of the beneficiaries is not entitled to participate because of his failure to produce the notes on which his claim is based, is obviated by the production and. filing of the notes in the Supreme Court.
    4. Same —Assignable Interest — Form of Decree — Parties — Appeal.
    Where, in a suit to foreclose a trust mortgage, the mortgagor in his answer denies that any person is entitled to have a decree for a certain indebtedness described in the mortgage, and the creditor, who owned the indebtedness described, declined to accept the mortgage as security for his debt, the mortgagor cannot, on appeal, attack the decree for failure to provide that one to whom the original beneficiary had attempted to assign his interest under the mortgage at the request of the mortgagor was entitled to the benefits thereof; the contemplated assignee not being a party to the record, and no one by his pleading having asserted such claim.
    Appeal from Ingham; Person, J.
    Submitted February 8, 1900.
    Decided February 20, 1900.
    Bill by George F. Gillam, as trustee, against Orlando M. Barnes and others, to foreclose a mortgage. From a decree for complainant, certain of the defendants appeal.
    Modified.

      George F. Gillam (Cahill & Wood, of counsel), in pro. per.

      Russell O. Ostrander, for appellant Orlando M. Barnes.

      V. H. & H. H. Smith, for appellants First National Bank of Ionia et al.

      A. F. & F. M. Freeman, for appellants People’s Bank of Manchester et al.

      S. L. KiTbourne, for appellant Orlando M. Barnes, in interest of First National Bank of Ann Arbor et al.

      Thomas A. Wilson (Thomas, Cummins & Nichols, of counsel), for defendant receiver of Central Michigan Savings Bank.

      Charles F. Hammond, for defendant Thomas Marshall .

      Barnes & Race (on behalf of Jeptha H. Wade) and Jay P. Lee (on behalf of William H. and Beverly P. Davenport), amici cur ice.

   Moore, J.

On the 23d of August, 1893, Orlando M. Barnes and his wife made to the complainant a mortgage for the sum of upwards of $107,000 upon a large number of pieces of real estate. This mortgage was given subject to a mortgage dated June 13, 1893, given to Jeptha Wade. The mortgage contained this language:

“Whereas, Orlando F. Barnes is indebted to divers persons, banks, and firms in divers amounts, amounting in aggregate to the sum of one hundred and seven thousand three hundred and ten dollars and eight cents ($107,310.08), upon which'indebtedness Orlando M. Barnes is liable as indorser or .otherwise, which indebtedness is held' by and is due to .the following named persons and corporations in the amount set opposite their names, respectively, viz. :
The Central Michigan Savings Bank______________ $65,000
Thomas Marshall, Lansing, Mich___________________ 4,000
Arthur T. Davis, Lansing, Mich___________________ 2,500
Ingham County Savings Bank____________________ 30,810
Lansing State Savings Bank______________________ 5,000
$107,310
—And whereas, it has been deemed expedient to consolidate the said indebtedness, and the holders thereof have consented to do so, provided the payment of the same be secured by these presents: Now, therefore, these presents are upon this express condition that the said Orlando F. Barnes, or the said party of the first part herein, shall and do well and truly pay or cause to be paid, within five years from the date hereof, the sum of one hundred and seven thousand three hundred and ten and eight-hundredths dollars, with interest thereon at the rate of six per cent, per annum, payable semi-annually, according to a series of promissory notes, bearing even date herewith, executed by the said Orlando F. Barnes to George F. Gillam, trustee, or order, as collateral security; then these presents and the said obligation shall cease and be null and void.”

It then provided for the foreclosure of the mortgage in case of nonpayment of the debt: The mortgage also contained the following provision:

“It is deemed expedient that any of said lands embraced in this mortgage be sold whenever a fair and satisfactory price can be obtained therefor, before the end of said time limited. It is therefore expressly agreed that, whenever the parties of the first part can effect a sale of such lands at a price and on terms satisfactory to both parties hereto, the said party of the second part shall release the lands so sold or contracted to be sold from this mortgage; the money arising from snch sale, after paying the cost of making the same, and any liens that may be upon such lands prior to this mortgage, to be paid pro rata on the indebtedness hereby and herein secured.”

On the 19th day of September, 1893, Mr. Barnes and his wife gave to the complainant, as trustee, a mortgage in the sum of $140,000, to secure a long list of other creditors than those named in the earlier mortgage. The mortgage contained the following language :

“Subject, however, to certain mortgages heretofore executed by said parties of the first part, as follows: (1) A mortgage to Jeptha IT. Wade upon certain of the lands, herein described, to secure the payment of one hundred thousand dollars, and bearing date the 13th day of June, A. D. 1893. (2) A mortgage given to GeorgeF. Gillam, trustee, upon the same lands as those described in the last-named mortgage, and others, to secure the payment of one hundred and seven thousand three hundred and ten dollars and eight cents ($107,310.08), bearing date the 23d day of August, A. D. 1893. (3) A mortgage to the People’s Savings Bank of Lansing, Michigan, upon certain other of the lands herein described, and not covered by either of the above-described mortgages, situate at Mason, Ingham county, and on section nineteen (19), township thirty-nine (39) north, of range three (3 ) west, Michigan, to secure the payment of five thousand dollars ($5,000), bearing date September the 8th, 1893, — all of which mortgages am recorded in the register’s office of Ingham county, and to which mortgages, or the record thereof, reference is herein made. And it is expressly understood and agreed that this indenture is subject to said several mortgages, to the extent that they cover the lands herein described, respectively.”

In February, 1896, a foreclosure bill was filed for the purpose of foreclosing the mortgage given in September, 1893.. In the bill of foreclosure it was stated that the mortgage sought to be foreclosed was subject, among others, to the mortgage of August 23, 1893. On the 26th of April, 1897, a decree was rendered in this cause directing a sale of the property as prayed in the complainant’s bill of complaint. In the decree was the following statement :

“It appearing to the court that the mortgage herein referred to is a third mortgage upon certain of the property therein described, and a second mortgage as to certain other of said property, and it appearing to the court that, by reason of such prior incumbrances, it will not be practicable to sell the said property in parcels, it is therefore ordered and decreed that the said lands be sold entire as one parcel, subject to the said several mortgages as they may appear.”

On the 19th of July, 1897, the property was sold under this decree by the circuit court commissioner to George F. Gillam, trustee for the beneficiaries named in the decree. All of the lands were sold as one parcel, for the sum of $605.

In June, 1896, this proceeding was commenced for the purpose of foreclosing the mortgage given on the 23d of August, 1893. In December, 1898, a decree was rendered in favor of the complainant. Among other provisions, the decree is as follows:

“ It is further found and determined: That the following persons, firms, and corporations, who were holders of the notes and other obligations of Orlando F. Barnes so indorsed or otherwise guaranteed by Orlando M. Barnes, have accepted the obligations of Orlando F. Barnes and the security of said mortgage, viz.: The Ingham County Savings Bank for the sum of $30,810.08; Thomas Marshall, for the sum of $4,000. That the indebtedness, as a whole, due' to the Central Michigan Savings Bank, and intended in part to be secured by said mortgage, consisted in part of six certain promissory notes, for $5,000 each, made by Orlando F. Barnes and indorsed by Orlando M. Barnes, dated and payable as follows: A note dated March 31, 1893, payable four months after date; a note dated January 26, 1893, payable three months after date; a note dated March 31, 1893, payable four months after date; a note dated January 26,1893, payable three months afterdate; a note dated January 26, 1893, payable three months after date; a note dated March 31, 1893, payable four months after date, — which said several notes, when made, were delivered to and became the property of the Central Michigan Savings Bank, and formed a part of the entire indebtedness intended to be secured in part to this bank by said mortgage. That, after the making and delivery of said notes to the Central Michigan Savings Bank, the said Central Michigan Savings Bank guaranteed the payment thereof, and discounted or transferred the same, and, at the time of the execution and delivery of the mortgage to complainant, said notes were held by the following persons, firms, and corporations, viz.: The one first above mentioned was then held by John N. Berry, of Grand Ledge, Michigan; the second and sixth above mentioned, by the Citizens’ Bank of Saline, Michigan; the third, by one Reuben Kempf; the fourth and fifth, by the Mechanics’ Bank of Detroit, Michigan. That, at the time of the execution of said mortgage, the receiver of the .Central Michigan Savings Bank, by leave of the court, accepted the security of said mortgage, and surrendered to said Orlando M. Barnes so much and such parts of the entire indebtedness due to said Central Michigan Savings Bank as was evidenced by paper then in his hands or under his control. That said receiver has, since the execution of said mortgage, paid upon the notes not surrendered dividends amounting to fifty-five per cent., and the estate in his hands is liable for the balance pro rata with other creditors of said bank.
“And it is further found and determined that the following persons and corporations refused to accept the notes of Orlando F. Barnes and the security of said mortgage, viz.: Arthur T. Davis, in the sum of $2,500; the Lansing State Savings Bank, in the sum of $5,000, — and that neither Arthur T. Davis nor the Lansing State Savings Bank is entitled to participate in the security so offered. It is further adjudged and determined that neither the People’s Savings Bank of Lansing nor the First National Bank of Ann Arbor acquired any right to participate in such security by reason of any transfer, legal or equitable, of the .five thousand dollars interest in said mortgage originally intended for the benefit of the Lansing State Savings Bank.
“It is further found and determined that, since the execution of said mortgage, the Ingham County Savings Bank has assigned to Jeptha H. "Wade, of Cleveland, Ohio, an interest in its security under said mortgage equal to the sum of $18,400, and that the said Jeptha H. Wade is lawfully entitled to participate in said securitj to the extent of said interest so assigned to him, viz., to the extent of $18,400, together with interest thereon as hereinafter shown.
“ It is further found and determined that the said Ingham County Savings Bank, on, to wit, the 7th day of August, 1897, became the purchaser from Orlando M. Barnes and wife of lands situate in the city of Lansing, county of Ingham, State of Michigan, which were covered by and included in said mortgage; * * * that said purchase of said lands was made upon the agreement that the amount of said purchase price should be received and credited by the said Ingham County Savings Bank at the sum of $12,650, that being the balance claimed to be due to the said Ingham County Savings Bank on account of ‘such securities after the assignment of its interest to Jeptha H. Wade, as hereinbefore stated, — the said lands to be released from said mortgage given by the said Orlando M. Barnes to complainant as set forth in said bill, and also to be released from a certain other mortgage executed by Orlando M. Barnes and wife to George F. Gillam, trustee for certain other creditors of Orlando F. Barnes, which said mortgage bore date the 19th day of September, 1893, and was recorded in the office of the register of deeds of Ingham county, Michigan, on the 21st day of September, 1893, in Liber 87 of Mortgages, on pages 109 to 115, both inclusive. And it is further found and determined that the said purchase of said land by the said Ingham County Savings Bank was agreed to and approved by George F. Gillam, trustee named in both mortgages, and a release of said lots from said mortgages executed by the said George F. Gillam to the said Ingham County Savings Bank in accordance with such agreement. It is further found and determined by the court that the Sale of said lands to the said Ingham County Savings Bank for the said sum of $12,650 was made in good faith for a reasonable sum, that the same was for the advantage of all persons interested in said mortgage, and that the said sale stand confirmed as of the date at which the same was made, and upon the terms hereinbefore stated; and that the said Ingham County Savings Bank have and hold said lands freed of said mortgages, in full payment and discharge of all claims under said mortgage, and that its title thereto be, and the same is hereby, quieted and confirmed. * * *
“It is further ordered, adjudged, and decreed that the full amount of said mortgage, 'both principal and interest unpaid, is now due; that there is now due to the said Central Michigan Savings Bank for principal and interest computed to the 29th day of August,. 1898, the full sum of $59,854.15; that there is due to Jeptha H. Wade the sum of $21,823.64; that there is now due to Thomas Marshall the sum of $4,820.83, — together with the interest to be computed thereon since the 29th day of August, 1898, at six per cent, per annum.”

From this decree the beneficiaries under the mortgage of September, 1893, have appealed. They claim that the Central Michigan Savings Bank is entitled to a decree of less than $2,000. They urge that no decree should have been rendered in favor of Jeptha Wade, and insist that Mr. Marshall was not entitled to a decree. The court had the benefit of able oral arguments, lasting something more than a day, and has very voluminous briefs furnished by counsel. It does not deem it necessary to enter into an extended discussion of the various interesting questions raised by counsel, but will content itself with a simple statement of the conclusions reached by it.

A careful perusal of the record dispels many of the seeming difficulties suggested by the briefs and oral arguments of counsel. It discloses that prior to June, 1893, Orlando M. Barnes had no personal creditors. His son Orlando F. Barnes was engaged in very large business enterprises. His debts and the debts of the Lansing Lumber Company and the Lansing Iron & Engine Works, in which he was the principal stockholder, to the Central Michigan Savings Bank alone, amounted to about $240,-000. Mr. Orlando M. Barnes had placed with the bank collateral securities for some of this amount, and was liable as indorser for a large amount. He desired to aid his son, and to secure his release from personal liability. To accomplish this purpose he made the two mortgages already mentioned herein; having in June prior thereto made a mortgage to Jeptha Wade, of Cleveland, Ohio, to which the later mortgages were subject. The Central Michigan Savings Bank was itself in trouble, and was in the hands of a receiver: Mr. Barnes turned out to the receiver certain bonds, and an interest in a mortgage, in extinguishment of the debts due from the Lansing Lumber Company and the Lansing Iron & Engine Works. After this was done, Mr. Orlando P. Barnes still owed the bank upwards of $130,000. According to the testimony of the receiver, the name of Mr. Barnes was on about $80,000 of this indebtedness, and a further amount was in the possession of the bank, secured by collaterals, which were surrendered when the mortgage was given. At the time the mortgage was given, other securities were turned over to the receiver, so as to reduce the amount of the indebtedness, for which Mr. Orlando M. Barnes was willing to give mortgage security, to $65,000. Other collaterals were in the possession of the bank, which were afterwards realized upon, which ultimately reduced the amount to $45,500. It is for this last-named amount, with interest, that the decree is given.

The beneficiaries under the September mortgage say that the mortgage was to become operative only upon the condition that the indebtedness for which Orlando M. Barnes was liable was to be extinguished, and the paper having his indorsement returned to him; that the consideration named in the mortgage included six notes, of $5,000 each, which the bank at that time had discounted, which have never been canceled and returned to Mr. Barnes; and that the decree ought not to include the amount of these notes. It is also claimed that a like condition exists as to a $5,000 note known as the “Iron & Engine Works Note.” As to the last-named note the testimony is conflicting, but we think it was not included in the debt secured by the mortgage. Objection is made to other items embraced in the decree, but we do not deem the objections of sufficient importance to refer to them any further. The record discloses that Mr. Barnes and the receiver of the bank, Mr. Stone, both knew at the time the mortgage was made that these notes could not then be surrendered to Mr. Barnes, and it was not expected by either of them that they would be'surrendered before the mortgage should become operative. The receiver has three of the notes in court now, and is ready to surrender them to the estate of Mr. Barnes. It was known to both Mr. Barnes and the receiver that it would be necessary to convert the assets of the bank before its debts could be paid. They both anticipated that the proceeds of the debt secured by the mortgage might be required to enable Mr. Stone to retire these notes. The mortgage itself provides for a sale of the property at private sale, the proceeds to be used to pay the debts secured by the mortgage pro rata. The bank could not procure these notes without having the funds to do so. The giving of the mortgage was expected to result ultimately in its having funds. Mr. Barnes and the receiver both expected the bank would be able to pay 100 cents on the dollar. The receiver delivered to Mr. Barnes all of the notes then in his hands upon which Mr. Barnes was liable, and agreed with him that he would surrender the others when he could get them. This was entirely satisfactory to Mr. Barnes. The note of Mr. Orlando F. Barnes for $65,000 was delivered to and accepted by the bank. The mortgage was delivered to the trustee and put upon record. The receiver has already paid 55 cents on the dollar of these notes. The mortgage itself does not require a surrender of the notes upon which Orlando M. Barnes was liable before it should become operative.

It is also urged (and the same argument is used in relation to the claims of Mr. Marshall and of the Ingham County Savings Bank) that:

“This mortgage was given to secure the notes of Orlando F. Barnes, and until those notes were accepted, so that they constituted a binding contract between Orlando F. Barnes and the beneficiaries under the mortgage, neither the land nor the parties nor third persons were bound by this mortgage. Until such time it was but an arrangement contemplated, but not perfected, and could only be made effectual by the future act of the beneficiary, — not binding, nor intended to bind, until the beneficiary had acted. Such is the language of the bill of complaint, in substance, and such is the evidence, which has already been referred to. It would seem that it must follow that when the beneficiaries under the mortgage-being foreclosed did accept, when any one of them had- given up the old notes with O. M. Barnes’ name thereon, and accepted the notes of Orlando F. Barnes and the mortgage security, their lien upon the land dated from that time, and they took their security as they found it, subject to the rights that may have intervened between the making of the mortgage that is now being foreclosed and their acceptance of same. In other words, they stand just the same as though the mortgage had been made and delivered to them on the day they accepted. It being optional with the beneficiaries whether they would accept or not, if other .rights or other liens intervened before their acceptance and after the making of the mortgage, the mortgage is, as to such beneficiaries, in legal effect, subsequent to liens acquired or rights which have sprung up after the making of the mortgage and before the acceptance thereof by the beneficiaries. See Ladue v. Railroad Co., 13 Mich. 393, 394 (87 Am. Dec. 759).”

If the conclusion reached by the counsel is the correct one, if the last mortgage was made but a day later than the prior one, and if the beneficiaries therein named had given notice of their acceptance of its terms the same day it was made, their claims would have priority over the claims of the beneficiaries named in the prior mortgage, even though they accepted its terms, if their acceptance was made later than the acceptance of the beneficiaries in the later mortgage; and this, too, when the later mortgage was by its terms made subject to the conditions of the prior mortgage. It does not occur to us that this would be equitable, and it would certainly defeat the intention of Mr. Barnes in making-the mortgages. We do not think the case of Ladue v. Railroad Co., supra, sustains this contention. The mortgage in that case was made to secure Ladue and Eldred, and to indemnify them, for any indorsements they might make for the mortgagor, and for any advances they might make him. Ladue and Eldred were not bound to make any advances or indorsements or to incur any liability for Ladue, nor was the latter bound to accept any accommodation. The deed was not made subject to this mortgage. The liability for which the mortgage was sought to be foreclosed was incurred after Mr. Howard obtained his deed and put it upon record. It appears in the opinion of Justice ChrisTIANCY:

“It does not satisfactorily appear by the evidence that .any of these indorsements, made since the recording of Howard’s deed, were made in renewal of paper indorsed by them previous to that time. * * * It does not appear that at the time of the sale to Howard, or the recording of his deed, there was any existing, unsatisfied indorsement, or any subsisting liability, inchoate or- otherwise, incurred by the mortgagees for the mortgagor. * * $ >!

In speaking of the claim of the defendants, this language is used in the opinion:

“Nor is it denied that if the mortgagees, by the contracts or arrangements between them and the mortgagor (to secure which, on the part of the latter, was the object of the mortgage), had been bound to make advances or to indorse for the mortgagor, the record of the mortgage would have been full notice to Howard, and the mortgage would have been good against him, though the advances were not in fact made or the paper indorsed until after the deed to him, and actual notice of that deed to the mortgagees. The defendants also admit that the result would be the same, under this mortgage, as to any advances made or paper indorsed by the mortgagees for the mortgagor before they had actual or constructive notice of the sale and.deed to Howard. But they insist that as there was not, at the time of Howard’s purchase or the recording of his deed, any debt of the mortgagor, or any liability incurred for him by the mortgagees, absolute or inchoate, nor any obligation on their part to incur such liability, the mortgage was not then an incumbrance in fact or in legal effect; that it could only become such from the time when the advances or indorsements were actually made; and it being optional with the mortgagees whether they would make any such advances or indorsements, and the indorsements being made subsequent to the recording of Howard’s deed, the mortgage is, in legal effect, subsequent to the deed, and the record of the deed was notice to the mortgagees of Howard’s rights.”

The learned justice discusses in detail the functions of a mortgage, and, among other things, says:

“A mortgage, then, being a mere security for the debt or liability secured by it, it necessarily results that the debt or liability secured is the principal, and the mortgage but an incident or accessory. * * ■ * These propositions being established, the necessary result is that the mortgage instrument, without any debt, liability, or obligation secured by it, can have no present legal effect as a mortgage or an incumbrance upon the land. It is but a shadow without a substance, an incident without a principal ; and it can make no difference in the result whether there has once been a debt or liability which has been satisfied, or whether the debt or liability to be secured has not yet been created, and it requires, as in this case, some future agreement of the parties to give it existence. At most, the difference is only between the nonentity which follows annihilation and that which precedes existence.”

What is the situation*in the case at bar? When this mortgage was given, Orlando F. Barnes owed the Central Michigan Savings Bank, Mr. Marshall, and the Ingham County Savings Bank certain sums of money, which were then due. Upon these debts Orlando M. Barnes ■ was liable as indorser or otherwise. To secure the payment of them within five years from date of the mortgage, this mortgage was given. It described the debts and the amount thereof. It was given to secure the payment of valid, subsisting debts. The amount named in the mortgage was a definite amount, payable at a definite time; so the subsequent mortgagees were advised fully of the conditions. It is true, the old notes were to be surrendered, and the notes of Orlando F. Barnes to be substituted therefor ; but the fact remains that the mortgage was given to secure the ultimate extinction of the prior debts, for which both Orlando F. Barnes and Orlando M. Barnes were liable. Judging from what we have quoted from the opinion of Justice Christiancy, can there be any doubt about what he would hold in such a case as this ? The later mortgage was given subject to the conditions of this mortgage. When the later mortgage was foreclosed, the bill of foreclosure recited that it was given subject to the conditions of the prior mortgages. The decree of foreclosure recited the same thing, in substance, and for that reason authorized the sale of a great many descriptions of land as one parcel. The sale was made, and the land was bid in for the beneficiaries named in the later mortgage for a merely nominal sum. Under such circumstances, we do not think a case can be found which holds that the beneficiaries under the prior mortgage, who accepted its terms at any time when they had a right to do so, must be held to be subsequent mortgagees to the beneficiaries named in the later mortgage. See Cow v. Lumber Co., 109 Mich. 45 (66 N. W. 676), and the many cases there cited.

It is urged the decree, as to Mr. Wade, is wrong for the ■ following reasons:

“1. That the Ingham County Bank had no valid lien under the first Gillam mortgage until after the First National Bank of Ionia had accepted under the second Gil-lam mortgage, and hence that the Ionia bank’s lien must be superior to the lien acquired by the Ingham County Bank.
“2. That the transaction by which the mortgage was assigned to Mr. Wade amounted to a payment by Mr. O. M. Barnes, and Mr. Wade has no interest.
“3. That there is an error of at least $3,000, anyway, in the decree in his favor.
“4. That the notes are not produced or accounted for, so there can be no decree for Mr. Wade.”

Taking the testimony as an entirety, we think none of these reasons can be sustained. It is true that the Ingham County Savings Bank did not receive the new notes and surrender the old ones until the latter part of September, but it is equally clear that the arrangement that it should do so was made at the time the mortgage was made. Nor do we doubt, from the testimony, that the beneficiaries named in the September mortgage knew when they accepted its terms that the Ingham County Savings Bank intended to avail itself of the conditions of the August mortgage.

As to the claim that Mr. Wade had no interest in the mortgage as the result of the assignment made by the bank to him: While there was some confusion in the testimony of Mr. May when he was first upon the stand, before he had consulted his books and the correspondence, the testimony shows beyond any reasonable question that the money was furnished by Mr. Wade, and that it was so furnished in exchange for the interest in the mortgage which was assigned to him.

As to the claim that there was an error of at least $3,000 in the amount decreed to Mr. Wade: This claim is based upon the testimony of Mr. May, counsel insisting that his testimony shows that, when the land was turned out to the bank at the agreed price of $12,650, it left but $15,634. Counsel seem to have overlooked.the statement of Mr. May that this was exclusive of interest. If the interest is accurately computed, it will be shown that, instead of the amount of the decree being too large, it is not quite as large as the amount actually due.

As to the claim that the notes were not produced or accounted for in the court below, and therefore must be deemed to have been paid: We do not think that it can be said they were not accounted for, or that the presumption of payment was not overcome, though they were not produced. This may have grown out of the fact that the record, does not indicate very clearly that any serious contest was made as to this claim in the court below. Indeed, the trustee (who stands neutral), when he filed his brief in this court, did not suppose that any contest would be made over this claim. The solicitors for Mr. Wade, to avoid any controversy, have brought the notes into court, and left them with the clerk to be filed. Having done this, we think every reasonable objection to the decree in favor of Mr. Wade disappears. Young v. McKee, 13 Mich. 552.

From the finding of the decree that the Lansing State Savings Bank refused to accept the security of the mortgage, and therefore should not share in the proceeds thereof, Mr. Barnes, for himself and the First National Bank of Ann Arbor, seeks to appeal. After the mortgage of August 23, 1893, was made, the Lansing State Savings Bank declined to accept it as security and surrender the debt which it had. Mr. Barnes arranged to pay the debt in another way, and did so. Subsequently, at the request of Mr. Barnes, the Lansing State Savings Bank made a formal assignment of its interest in the mortgage, which the cashier says “was simply a transfer to other parties of the interest our bank held in the mortgage, whom he [Mr. Orlando M. Barnes] desired to pay.” The assignment was made to Mr. Prudden, and it was expected that he would turn over the mortgáge interest to the Ann Arbor Bank. He did not do so, but used it in another way, not material to state here. Mr. Barnes claims that the interest so assigned should inure to the benefit of the Ann Arbor Bank. His counsel claims that, when Mr. Barnes paid the debt of the Lansing State Savings Bank, he became subrogated to its rights in the mortgage, and that when that bank, at his request, transferred its interest in the mortgage to Mr. Prudden to enable him to transfer it- to the Ann Arbor Bank, Mr. Barnes and the bank were entitled to have the interest secured to the Lansing State Savings Bank applied to the benefit of the Ann Arbor Bank. Speaking for myself, I think it very clear that the Lansing State Savings Bank never obtained any interest in the mortgage of August 23d to transfer. The simple making of the mortgage did not give the creditor named therein any interest in the mortgage. It was not until the creditor indicated a willingness to accept the provisions of the mortgage that he acquired any interest therein. The Lansing State Savings Bank declined to surrender the debt it held when the mortgage was made, and refused to accept the provisions made for it in the mortgage. Having, then, no interest in the mortgage, because it did not accept its terms, it is clear that it could convey no interest to others. There are other difficulties in the way of enforcing the claim of Mr. Barnes. The First National Bank of Ann Arbor is not a party to the record. The bill of complaint refers to the debt of the Lansing State Savings Bank, and to its assignment to Mr. Prudden and its subsequent assignment by him. In his answer Mr. Barnes gives in detail his understanding of the status of the-claim, and says:

“This defendant therefore denies the right of the complainant to include in his claim in this suit the five-thousand-dollar note, and denies the right of any one to have judgment or decree for the same. ”

No different claim has been made in the pleadings by Mr. Barnes, or by any one else acting for him or for the Ann Arbor Bank. While all the justices may not agree for the same reason upon the conclusion we have reached, we are all agreed that in relation to this claim the decree must be affirmed.

It is insisted that a decree ought not to have been made in favor of Mr. Marshall, or, at least, if made in his favor, that his claim should be subsequent to the claim of the beneficiaries named in the last mortgage. Counsel, in their brief, say:

“We are inclined to concede that, were there no intervening equities, acceptance might take place at any time during foreclosure, upon hearing, and down to the time of decree.”

Mr. Marshall and his counsel seem to have labored under the impression that, because of the language used in the mortgage, it was not necessary for him to indicate his acceptance of its provisions. However, on the hearing, and before the decree, he brought the notes indorsed by Orlando M. Barnes into court, and surrendered them, and asked to be allowed to be one of the beneficiaries of the mortgage. The discussion of one of the objections made to the decree in favor of the Central Michigan Savings Bank makes it unnecessary to discuss this phase of the case further. No injustice is done the beneficiaries of the later mortgage in allowing Mr. Marshall the amount due him.

Orlando M. Barnes has appealed from the decree. He does not object to the amount of the decree, but he says it was the agreement, when the mortgage was made, not only that the receiver should deliver to him all the notes then in his hands upon which Mr. Barnes is liable, but that the six notes of $5,000 each should be delivered to him. His claim, stated in the language of his counsel, is:

“It was the duty of Mr. Stone to take up these notes and deliver them to Mr. Barnes. He does not, however, insist that such taking up and delivery should precede the foreclosure of the mortgage, that being left to the discretion of the receiver; but he does strenuously insist that, before the money realized from the foreclosure is distributed in dividends to the depositors of the bank, so much of that fund as is necessary should be appropriated by the receiver to the payment or procuring of the six notes, and their delivery to Mr. Barnes.”

The record discloses, beyond any reasonable question, that one of the leading reasons which influenced Mr. Barnes to make this mortgage was his desire to be relieved of personal liability, and to have the notes upon which he was liable delivered to him, and that it was agreed that this should be done when the mortgage was made. As we have already shown, the return of the notes to him was not made a condition precedent to the mortgage taking effect, but it was part of the agreement that they should be taken care of by the receiver and returned to Mr. Barnes. As already stated, the receiver delivered to him all the notes he then held in his possession. In addition to delivering to Mr. Barnes the notes in pursuance of the agreement made in August, he gave to him the following memorandum: ”

“Lansing, Mich., Sept. 21st, 1893.
“I have this day delivered a part of the notes of O. M. Barnes, as per agreement, in settlement, and will deliver the balance as soon as I can get them into my possession.
“George W. Stone, Receiver.”

The testimony discloses that this memorandum refers to the six notes in question. It is urged by the counsel for the Central Michigan Savings Bank that the real consideration was not the delivery of the notes, but the agreement of Mr. Stone to release Mr. Barnes from his personal liability, and that, as no personal decree is taken against him, he cannot complain. It is true that no personal decree is taken against Mr. Barnes, but if the receiver fails to pay these notes in full, and the holders- of them may present a claim against Mr. Barnes for any'deficiency, it is evident that Mr. Barnes has not been relieved of his personal liability. The receiver seeks to have the benefit-of his contract with Mr. Barnes. To entitle him to this, he should carry out his part of the agreement. Galloway v. Holmes, 1 Doug. (Mich.) 330; Jewett v. Petit, 4 Mich. 508 ; Sloan v. Holcomb, 29 Mich. 161; Thompson v. Hotvard, 31 Mich. 309; Dunks v. Fuller, 32 Mich. 242; Walsh v. Sisson, 49 Mich. 423 (13 N. W. 802); Rowley v. Towsley, 53 Mich. 329 (19 N. W. 20); Button v. Trader, 75 Mich. 295 (42 N. W. 834); Gow v. Lumber Co., 109 Mich. 45 (66 N. W. 676). The decree should make some provision for the surrender and return of these notes to Mr. Barnes.

This disposes of all the questions we deem it necessary to discuss. Except as herein modified, the decree is affirmed.

The other Justices concurred.


text:
    WESTON LUMBER CO. v. TOWNSHIP OF MUNISING. CHICAGO LUMBERING CO. v. SAME.

    1. Appeal — Findings op Court — Exceptions.
    Where the record on. appeal shows that merely a general exception was taken to the court’s findings of fact and law, and appellant’s brief states that it is based upon the findings of law, it will be assumed that the only question raised is whether the findings of fact support the conclusions of law.
    2. Taxation — Authority op Township Board and Board of Education.
    The neglect or refusal of the electors of a township to vote the amounts necessary to be raised for township and school purposes is sufficiently shown, within the statutes authorizing the township board and the board of education, respectively, to vote the same in such case, by a recital in the resolutions of the several boards voting such taxes, that the attention of the electors present at the annual meeting was called to the matter of voting'upon such questions, and that they failed, neglected, and refused to vote such sums as were necessary.
    3. Same — Support op Poor.
    The support of the poor is an “ordinary expense” of a township, within 1 Comp. Laws 1897, § 2349, authorizing the township board to vote a tax to defray the ordinary expenses of the township, in case of the neglect or refusal of the electors to vote the same.
    4. Same — Boards op Supervisors — County Taxes. The fact that the board of supervisors voted county taxes in a gross sum, instead of setting forth the .items, will not • invalidate the leyy, where the limitations prescribed by law are not shown to have been exceeded.
    Error to Alger; Steere, J.
    Submitted January 10, 1900.
    Decided February 20, 1900.

      Assumpsit to recover taxes paid under protest. From judgments for plaintiffs for less than the amounts claimed, they bring error.
    Affirmed.

      C. W. Dunton (E. C. Chapin, of counsel), for appellants.

      H. B. Freeman, for appellee.

       Rehearing denied April 3, 1900.

   Long, J.

These two cases are heard as one case. The actions were brought by plaintiffs to recover certain taxes paid by them under protest to the township treasurer of Munising. The taxes sought to be recovered are township poor tax, township highway tax, township contingent tax, township bond tax, school tax, and county tax, all assessed for the year 1898. The payment of these taxes was made to the township treasurer on February 13, 1899, and the suits were brought within 30 days thereafter. The court below held the township bond tax, and one item of the school tax, amounting to $575, for fuel, void, and rendered judgments for plaintiffs accordingly. Plaintiffs bring error. The case was heard before the court without a jury, and findings of fact and law made.

It is claimed by counsel for plaintiffs that exceptions were taken to the findings of fact and law. These exceptions appear, in the original record filed with the clerk of this court, as follows:

“In this cause written findings of fact and law having been filed by the court in vacation, and judgment entered in accordance with such findings, now comes the plaintiff, by C. W. Dunton, its attorney, and excepts to the said conclusions of law holding said county, school, contingent, highway, and poor taxes, and each of them, to be valid, and to the rendition of judgment in accordance with such conclusions.
“Dated June 12, 1899.”

The findings were filed June 5, 1899.

The following statement also appears at the close of the bill of exceptions, which was settled and signed on September 5, 1899:

“Afterwards, and during the vacation, the court filed a written finding of fact and law, and held the amount of the highway bond tax, and the item of the school tax of $575 for fuel, to be illegal and void, and rendered judgment in favor of each of the plaintiffs for its proportion of said illegal taxes so paid, which said judgment was after-wards entered by the clerk in accordance with said finding; to which said finding of fact and law and entry of judgment the plaintiff in each case duly excepted. ”

It is stated in plaintiffs’ brief now filed here that “the brief of appellants was based on the findings of law made by the circuit judge.” We therefore conclude that no question is raised but that of whether the findings of fact support the conclusions of law. If this were not conceded, counsel should have taken more specific exceptions to the findings of fact.

The court found as follows:

“Payment of the taxes in this case was involuntary, under protest, and under legal duress.
“ It is urged that the township contingent, school, and highway taxes are illegal, for the reason that they were voted by the township board and board of education, respectively, and not by the electors at the annual township meeting; that the records of the annual township meeting fail to disclose that those questions were submitted to the electors at such meeting, and they neglected or refused to vote upon the same. We find that the resolutions of the respective boards voting these taxes recite that the attention of the electors present at the annual meeting was called to the matter of voting upon those questions, and that they failed, neglected, and refused to vote such sums as were necessary. The memoranda on the poll-books in evidence, as also the oral testimony given, tend, so far as they go, to confirm the truth of the recital in those resolutions. We have before us an unimpeached official record of those facts. While it has been held that it cannot be presumed such action was taken when the records of the township meeting failed to show it, it has never been held that the failure of such record to show it was fatal to the tax in a case where there was an unimpeached township record to substantiate the action of the respective boards in voting such taxes. In Newaygo County Manfg. Co. v. Echtinaw, 81 Mich. 420 (45 N. W. 1010), the resolution of the township board, reciting that the annual township meeting failed to vote or act upon the matter of providing for contingent expenses for the year, was held to affirmatively show that fact, and to warrant the township board in acting. By the same rule of evidence, it appears affirmatively in the case at bar that the matter of voting upon the various taxes in question was called to the attention of the electors present at the annual meeting. The matter does not rest in parol, and the record of those facts is one which has been recognized by our courts as affirmative evidence of what occurred at the annual meeting. The township board had authority to vote the township contingent and highway tax, and the board of education had authority to vote the school tax, except the amount of $575, included for fuel in the certificate of the township clerk, but apparently not authorized by the resolution of the said board of education.
“The tax of $1,700, voted by the township board to pay bonded indebtedness and interest thereon, cannot be sustained. The testimony, as disclosed by the records, shows a township bonded indebtedness of $2,000, and no more, — $1,000 due in five years, authorized lay the board of supervisors in 1887, and $1,000 due in five years, authorized by the board of supervisors in 1890. The total of these bonds and interest, if paid when due, would be $2,800. There has been raised by taxation the sum of $5,394 to pay these bonds. Even a large delinquent list can be allowed without deficiency. We are not to presume that the money raised to pay these bonds had been embezzled or misappropriated. In the absence of proof to the contrary, we must assume that that money has been appropriated for the uses for which it was raised, and that the bonds are paid, or that it is now on hand.
“ It is contended that there is no authority in the township board to vote a tax for the support of the poor, even though the electors had failed to make provision for the same at the annual meeting. Support of the poor by townships prevails in Alger county, and is an annual, necessary, and ordinary expense in every one of its townships. ' It is an expense incurred under the law in administering the government of the townships, — an expense tending to best promote the peace, health, and happiness of the. people residing therein. We believe it is an ordinary expense, under the ruling found in Mills v. Township of Richland, 72 Mich. 107 (40 N. W. 183). The poor tax is sustained. [ See, also, 1 Comp. Laws 1897, § 2349, and note.]
“The record of the board of supervisors shows that, at their annual meeting for the year 1898, the county taxes were voted in a gross sum. While it might be more satisfactory were the items of their estimate set forth in the resolution, and a budget made up, we know of no law requiring a record of the same. The board have authority, under 1 How. Stat. § 483, to direct and provide for the raising of any money which may be necessary to defray the current expenses and charges of their county, subject to the limitations prescribed in the act. They have, according to the record, ascertained and provided for such sum as they deemed necessary, and it is not shown to be unreasonable or in violation of the limitations prescribed by the act. Their determination is made a matter of record, and does not rest in parol. The county tax is sustained.
“Let a judgment be entered in favor of the plaintiff for its proportion of the bonded indebtedness tax of $1,700, and its proportion of the $575 school tax held to have been levied in excess of any provision made by the board of education.”

The facts found support these conclusions, and the judgments below must be affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    PEARL v. LOCKWOOD.
    Wills — Forfeiture of Legacy — Evidence.
    Testator devised his property to his wife for life, and provided for a legacy of $700 to his nephew, who was living with him, “ if the said [nephew] shall continue to live with my family, and on my estate, until he shall arrive at the age of 21 years, and labor as faithfully as he has labored for me.” Before coming of age, the nephew left the family of his aunt, and went to work on a farm for wages. At the time he left, he was warned that by so doing he would forfeit his legacy. He testified that Iris aunt urged him not to leave at that time, but that, when he insisted, she made no objection. He did not file a petition for the allowance of the legacy until 25 years after he became of age. Held, that a finding that he had forfeited the legacy was warranted.

      Error to Calhoun; Smith, J.
    Submitted January 3, 1900.
    Decided March 6, 1900.
    Petition by Manford Pearl to the probate court for an order directing Augustus Lockwood, as executor of the last will and testament of John Pearl, deceased, to pay to petitioner a certain legacy. The petition was granted, and defendant appealed to the circuit court. From a judgment for defendant, petitioner brings error.
    Affirmed.

      Herbert E. Winsor, for appellant.

      William H. Porter and Hulbert & Mechem, for appellee.
   Montgomery, C. J.

In 1858 Manford Pearl, then a small boy of about 8 years of age, went to live with his uncle, John Pearl, who was a farmer near Marshall, in Calhoun county, Mich. Manford’s father had died previous to that time, and his mother remarried and moved away, leaving Manford with his uncle, John Pearl. From that' time Manford was brought up by his uncle on the farm, and was regarded as one of the members of the family. Manford became his uncle’s assistant, remaining there until John Pearl died, the 1st day of March, 1868. Manford Pearl was 18 years of age on the 14th day of April, 1868. On the 14th day of December, 1867, John Pearl made and executed his will, wherein he devised and bequeathed to his wife, Theodosia Pearl, the use of his • farm on which he lived, and also all of his household furniture, stock, farming tools, and utensils, and all crops upon the farm belonging to him at the time of his decease, and then directed that his executors maintain and educate the youngest daughter, Ella, until she should arrive at the age of 18, and then pay her the sum of $700; stating that he had before given his daughters Eliza Adams, Julia Lockwood, and Martha Hulett the sum of $700 .each. He then states:

“My nephew, Manford Pearl, is now living with me, and has lived with me since he was a child. Now, therefore, I hereby request and direct my executors, if the said Manford shall continue to live with my family, and on my estate, until he shall arrive at the age of twenty-one years,- and labor as faithfully as he has labored for me, to clothe him decently and properly, and send him to school in the winter seasons, until he is twenty-one years of age, and then pay him the sum of seven hundred dollars out of my estate. And I hereby charge my estate with the support, maintenance, and education of my said daughter Ella and my said nephew, Manford, as aforesaid, and also said legacies of seven hundred dollars to each of them.”

Then, after making some other bequests to other children, he authorized and empowered his executors, upon the request of his wife, Theodosia, to sell and convey his farm for the greatest sum of money they could obtain for the same, but provided that his wife in that event should have the use of the moneys obtained from the farm for and during her natural life, and the proceeds to be divided equally among his four daughters, and then adds:

“And it is further my will and desire that the payment of the legacy of seven hundred dollars hereinbefore bequeathed to my nephew, Manford Pearl, is to he left entirely at the discretion of my executors, whether he is entitled to the same according to the conditions annexed to said legacy; and they may pay him a part in cash, and a part in property at its fair value, if they may so elect.”

He nominated his wife, Theodosia Pearl, and his son-in-law Augustus Lockwood, jointly and severally, to be executrix and executor of the will. On February 17, 1868, he made a codicil to the will, referring to the will, and then stated:

“Having since that date [December 14, 1867] — that is, today — sold my farm in Emmet, of two hundred acres of land, for' the sum of twenty thousand dollars, to George H. Barber, and taken in part payment therefor a house and lot of seven acres of land in the city of Marshall, at the sum of seven thousand five hundred dollars, and the balance in other securities: Now, I therefore make this codicil or explanation to my said will and testament: It is my will and desire, and I hereby order and direct, that my said last will and testament, dated the 14th day of December, 1867, be carried into effect, as near as may be, notwithstanding the sale of my said farm, and that my wife, Theodosia Pearl, shall have, as near as may be, the same amount of property, and in the same way, as is provided for her in my said last will and testament in case of the sale of my said farm by my executors.”

This will was admitted to probate on the 7th day of April, 1868; and Theodosia Pearl, his wife, and Augustus Lockwood, his son-in-law, were appointed executors of the will by the probate court of Calhoun county on the said 7th day of April, 1868, and they jointly entered upon the execution of their trust as executors. They have not been discharged as executors, nor the estate closed. Theodosia Pearl, one of the executors of the will, died on the 20th day of January, 1896. On the 2d of May, 1896, Manford Pearl filed his petition in the probate court for the county of Calhoun, in the estate of John Pearl, deceased, asking the probate court to direct the surviving executor to pay the legacy of $700 as provided in the will of John Pearl. The petition was heard in the probate court on the 27th day of July, 1896; and, after hearing the evidence in the case, the probate court ordered the executor of the estate of John Pearl, deceased, to pay to the petitioner, out of said estate, the sum of $700 (that being the amount of the legacy provided for him in the will of said deceased), from which order the surviving executor appealed. On the trial of the appeal the circuit judge made a finding of fact and law reversing the finding of the probate court, and entering a judgment against the petitioner. Petitioner brings error.

Among the findings of the circuit judge were the following :

“After the death of John Pearl, and in April, 1868, the family moved from the farm to the land (consisting of seven acres) in the city of Marshall, where the widow remained for several years; Manford Pearl going with the family. The family of the deceased consisted at this time of the widow and daughter Ella. A horse and a cow were kept on the premises, and there was some work, in the way of caring for them, and the cultivation of the garden, and the general care of the home. Manford Pearl left the family in May, 1868, and went to work for the executor, Augustus Lockwood, by the month, on his farm, and continued to live with him from that time until August, 1870. He worked seven or eight months of each year after that time for $20 per month. The balance of the time he went to school, and did chores for his board. In August, 1870, he went to Kansas. Mr. Lockwood was a farmer, and lived and worked on his farm, which was about three miles from the city of Marshall. He did not go to Lockwood’s with the consent of Mrs. Pearl, the widow. She desired him to remain with her and go to school in Marshall, and suggested that during the summer vacation he might go into the country and work. He went away, however, in May, 1868, and never returned to the Marshall home to live. The relations between the widow and claimant continued friendly, and he visited her frequently while he lived at Lockwood’s. During this time the widow employed Lockwood to do work about the Marshall home, and some of his work was done by the claimant, or with his assistance, as an employe of Lockwood. The executor, Lockwood, testified on the trial that he told Pearl when he came to work for him that, if he did that, he would forfeit his legacy; and he also testified that he and Mrs. Pearl, acting for the estate, had a conversation after Pearl became of age, and decided that he had forfeited his legacy, and that the widow should so inform him. Claimant was then in Kansas. Claimant admits that his aunt, Mrs. Pearl, wrote him in 1874 that he had not complied so as to entitle him to his legacy, and says that at one time preceding that, and after he went West, she sent him $100.”

The entire testimony is returned, and petitioner has excepted to certain of the findings of fact, as well as to the conclusions of law. It is contended that the evidence did not warrant the finding that Theodosia Pearl did not desire the petitioner to go to Lockwood’s to work, or the finding that the two executors determined that petitioner should not have the legacy, and that notice of this decision was given to petitioner. It is a question of some importance whether petitioner left Mrs. Pearl’s house with her consent or approval. The only witness to the conversation, other than the parties, is petitioner, Mrs. Pearl being dead. He testified:

“My aunt did not raise any objections to my going to Lockwood’s. She suggested that I could go to work in harvest and get some clothes; wages was good. I didn’t wait till harvest. I insisted she let me go now, and she didn’t object. She said, if I would wait till harvest, why then I could go; but I prevailed on her to consent, and she didn’t make any objection if I was determined to go. I told her I didn’t like to live in town. She made no objection.”

And on cross-examination:

“At the time I went in the country to work, Mrs. Pearl thought it would be better for me to go to school. She did not object to my going. I did not go in opposition to her wishes.”

Mr. Lockwood testified that before he employed the petitioner he told him that he would forfeit his legacy if he left home, and that petitioner replied, in substance, that he could not help that; he was going to get out of town.

It is apparent from the petitioner’s own testimony that it was not Mrs. Pearl’s desire that he leave home. True, she did not restrain him; but it is apparent from his own testimony that it was her wish that he should remain with her and attend school. Certainly, if the testimony of Lockwood is to be credited, petitioner was not misled into the course he took in failing to comply with the conditions imposed by the will. It appears that, instead of complying with the terms of the will, petitioner was in fact earning wages, working for Lockwood, and that Mrs. Pearl had another person employed to do chores. We have no doubt that the requirement that petitioner should continue to live with the family until 21 years of age, and labor as faithfully as he had for the testator, was a condition precedent. It is unnecessary to decide whether performance would have been excused if petitioner had been misled as to the requirements of the will. The circuit judge evidently found that he was not misled, but had affirmative notice that he would forfeit his rights by leaving the home of Mrs. Pearl. In view of the long delay in asserting the claim, we do not think the conclusion of the circuit judge was unwarranted. He saw the witnesses, and noted their appearance on the stand, and was better able to judge of their credibility than we are. The case is ruled by Johnson v. Warren, 74 Mich. 491 (42 N. W. 74).

Judgment affirmed.

The other Justices concurred.


text:
    MALICKI v. CHICAGO GUARANTY FUND LIFE SOCIETY.

    1. Life Insurance — Warranties —Use op Liquors — Evidence —Question por Jury.
    Where a life-insurance company, in an action on a policy, defended'on the ground that deceased, who had represented in the application for insurance that he drank no intoxicating liquors except beer, was, prior to and at the time of the application, in the habit of using spirituous liquors to excess, and produced witnesses who testified to that effect, and plaintiff, in rebuttal, called several witnesses who testified that they had never noticed the alleged habit, although they had had every opportunity to do so had it existed, it was proper to submit the defense, as a disputed question of fact, to the jury.
    2. Same — Instructions.
    In an action on a life-insurance policy, where the case was a close one upon the facts, error in instructing the jury that the policy, which was issued on an application stating that the applicant drank no intoxicating liquors except beer, would be void if the insured at the time indulged in spirituous liquors “ to excess,” was not cured by the court’s giving a request, preferred by defendant, to the effect that plaintiff could not recover if the insured drank whisky as well as beer.

      Error to Wayne; Lillibridge, J.
    Submitted January 4, 1900.
    Decided March 6, 1900.

      Assumpsit by Teófila Malicki against the Chicago Guaranty Fund Life Society on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      E. G. Bolton and Moore & Moore, for appellant.

      George B. Greening and T. E. Tarsney, for appellee.

       Rehearing (defendant’s application) denied May 18,1900.

   Montgomery, C. J.

This case has been once considered by this court, and is found reported in 119 Mich. 151 (77 N. W. 690). The plaintiff recovered a verdict on the second trial, and defendant again brings error. But two assignments of error need be considered. The first is that the court erred in refusing to direct a verdict for defendant. Tbe defendant, on the second trial, as on the first, introduced the testimony of several witnesses which tended to show that the deceased, at about the time the application for insurance was made, drank not only beer, but spirituous liquors, and that prior to the date of the application he had drank such liquors to excess. In rebuttal the plaintiff called a number of witnesses, who were frequently in the place of business of deceased. One of the neighbors testified that he was in the grocery nearly every day, once or twice a day, and that he never saw him drink whisky, but saw him take a small glass of beer. The plaintiff, who assisted in tending bar on occasions, testified that she never saw him drink whisky. It is claimed that this is negative testimony, and does not meet the testimony of those who testified that they did see deceased drink. We think, however, on full consideration, that this testimony raised a question for the jury. It was more or less persuasive, depending upon how fully it covered the period in question. It is the only character of testimony possible when the habits of a deceased person are in controversy. If it is not possible to meet the testimony of witnesses for defendant by that of persons who had every opportunity to note an alleged habit, and who testify that they never observed it, the plaintiff may be at the mercy of witnesses whose recollection of facts may be at fault, or who have been mistaken in their observation.

The only other question relates to the instructions to the jury. The court charged the jury in part as follows:

“The testimony has been introduced on one side or the* other, and we have taken up considerable time in the introduction of this testimony, the object of it being to enable you to decide this question whether, upon the date mentioned John Malicki made this application for insurance, he did drink more than two or three glasses of beer, and whether he habitually drank liquors at that time. I charge you, gentlemen of the jury, that if you believe that he drank more than two glasses — two or three glasses — -of beer at that time, or that he indulged in ale, wine, beer, or intoxicating liquors to excess, then the policy was obtained under false representations, and it is void, and it will be your duty to find for the defendant, — no cause of action. If, on the other hand, you believe from the testimony in this case that the representations were true, and that he did not drink more than two or three glasses of beer daily, that he did not indulge in spirituous liquors to excess, then, so far as that point is concerned, the defense is not sustained.”

This instruction did not correctly state the law as laid down in our former opinion. As the learned circuit judge later gave defendant’s request in the words, “If the insured, at the time the application was made, was in the habit of drinking whisky as well as beer, the plaintiff cannot recover,” it is evident that he had the correct rule in mind, and it is probable that the instruction quoted from the charge given on his own motion introduced the element of excessive use through an inadvertence. But we are, nevertheless, not able to say that the error was harmless. The jury may have been misled, and, as the case is a close one on its facts, we feel constrained to reverse the judgment, and order a new trial.

The other Justices concurred.