text:
    Edward M. Hitchcock v. The Supreme Tent of the Knights of the Maccabees of the World.

      Damages — Loss of profits.

      1. Damages which are purely speculative in character, and dependent on so many contingencies that they cannot be traced with reasonable certainty to the breach of the contract, are not allowable.
    2. Where the contractee breaks a contract for the performance of work and labor after it has been partly performed by the contractor, and then performs the remainder of the work himself, and reaps the profits which the contractor might have made from a full performance, he cannot escape liability for damages if the contractor can show the profits which he made from the partial performance of the contract, and the benefits received by the contractee from its completion.*

      Error to Saginaw. (Edget, J.) Argued January 81, 1894. Decided April 10, 1894.

      Asstmpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Rowland Connor, for appellant.

      McDonell & Hall, for defendant.

      LOSS OF PROFITS.
      For cases involving the question of loss of profits as a measure of damages in actions ex contractu, see:

        General Rules Applicable to the Subject.

      1. Clark v. Moore, 3 Mich. 55, holding:
      a — That no damages are ever recoverable in actions ex contractu unless they are shown by the party claiming them to be the natural and proximate consequence of the breach complained of; that each of the circumstances which concurred with the breach in producing the damage, and without which it would not have happened, is a part of its cause, and if any of these concurring circumstances are so far out of the ordinary course of nature or of human affairs that they cannot fairly be presumed to have been contemplated by the parties at the time of making the contract, then the damage is not the natural result of the breach, and is therefore not recoverable.
      b — That the rule that, for the breach of a contract for the sale and delivery of goods for a particular purpose, the vendee is entitled to recover, not merely the difference between the contract price and the market value, but also the special damage resulting to his private affairs from his not having the goods to use for the particular purpose for which they were intended, though difficult of safe application, seems just and equitable, and has the sanction of the civil law, and, to some extent, is sustained by actual adjudications under our system of jurisprudence; but when such special damages are allowed it must be upon the principle that the vendor’s engagement is not merely to deliver the goods, but that the vendee may have the advantage of their use for the purpose specified
      c — That it can by no means be true that every contract which, on its face, indicates .the purpose to which the goods are to be applied is of this nature, or that a vendor will be liable for such special damages in every case where it appears, even by parol evidence, that the goods were, to ■ the knowledge of the vendor, purchased for a particular purpose; but to create such extraordinary liability there must in every case be something in the terms of the contract, read in the light of the surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, — a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.

        2. Allis v. McLean, 48 Mich. 428, holding that profits are the best possible measure of damages where their loss is indisputable, and the amount can be estimated with almost absolute certainty; as in the case of advances on the contract price of grain or other articles which have ready sale at a current market price, or where the breach of one contract results in the failure of another contract which would have produced fixed and definite profits.

        Illustrative Cases.

      1. Clark v. Moore, 3 Mich. 55, holding that where, on the trial of a suit for goods' sold and delivered in pursuance of the contract of the plaintiffs to furnish the defendant all the tarred and manilla cordage, spun yarn, and hamline necessary to rig a vessel he was then building, at an agreed price per pound, to be delivered on or before a given date, the plaintiffs proved the delivery of a certain amount of the materials contracted fox’, and the defendant px’oved that the amount delivex’ed was less than the quantity required to rig the vessel, and that the plaintiffs refused on demand to fux’nish the residue, evidence offered by the defendant that, at the time of such refusal, the required materials could not be procured in the home market, and that the completion of the vessel was delayed, and the defendant lost the use of her during the time necessarily occupied in sending elsewhere to procure such-materials, was properly rejected, as, admitting these facts, it is sufficiently obvious that the defendant’s damage resulted not solely from the failure of the plaintiffs to deliver the materials, but also from the peculiar state of the market, and, if their absence therefrom was an extraordinary and unusual event, it would be contrary to settled principles of law to hold the plaintiffs responsible for damage which was in part caused by it; and which was not the natural consequence of the breach, and could not be presumed to have been foreseen and contemplated by the parties at the time of making the contract; and if, on the other hand, such a state of the market in said city was usual and ordinary, and might have been reasonably anticipated at the time the contract was entered into, the defendant should have offered to make proof of such facts, as there was no ground for a presumption that that was the case.
      2. Burrell v. Salt Co., 14 Mich. 34, holding that, where a contractor is prevented from constructing salt vats and covers on the premises of a solar salt company by its failure to fux’nish the necessary materials as per agreement, he may recover the profits whiclx he would have made had he been suffered to complete the work, and witnesses, in making their estimates, may take into-account the peculiarly favorable season for the performance of the ■work.
      3. Loud v. Campbell, 26 Mich. 239, holding that where, by reason of the failure of the defendants to furnish a tug, as per agreement, to tow plaintiffs’ vessel into a certain port where she was to receive a cargo of lumber for transportation for defendants to a certain city at an agreed freight per thousand feet, the plaintiffs are prevented from receiving and carrying the lumber, and hindered from earning the clear freight agreed upon, they are entitled to recover, as a part of their damages, the net profits they might have made if the defendants had furnished the tug, it appearing without contradiction that the vessel could have taken a certain amount of lumber, and that her net earnings would have amounted to a given sum.
      4. McKinnon v. McEwan, 48 Mich. 106, holding that where, in a suit to recover the balance claimed to be due upon a contract for the manufacture and connection in the mill of the defendant of two boilers on or before a given date, said contract being silent as to the particular business which was to be carried on in the use of the boilers, the defendant, in his notice of recoupment, sets forth that the boilers were to be used in his steam-mill and salt block for the purpose of running and operating the same; that they were the only boilers he would have to furnish steam; that the capacity of his salt block was 200 barrels per day; that without the boilers he could not manufacture 'any salt; that all of said facts were known to the plaintiff; that the boilers were not made and connected until 43 days after the date agreed upon; and that in consequence of such breach the use and profits of the salt block were wholly lost, — and claims the right to recoup the profits he would have made during said 43 days, it is not error to refuse .to allow said claim.
      5. Allis v. McLean, 48 Mich. 428, holding that where the owner of a saw-mill contracted for a certain kind of feed woi’ks, to be shipped in season to enable him to place the same in his mill and commence the manufacture of lumber at the commencement of the sawing season, and the works were not shipped until about four months after the time agreed upon, though frequently prom-_ ised, but the contractor supplied the mill owner with other feed* works, which enabled him to start up and useo the mill until the works contracted for were received, except for 16J days, when the mill lay idle, loss of profits from the inability to manufacture lumber during said 16-J- days is too uncertain to provide a measure of damages for the breach of the contract.,
      6. Goodrich v. Hubbard, 51 Mich. 62, holding that the measure of damages for preventing the performance of a contract to haul and deliver certain saw-logs at an agreed price per thousand feet may include the loss of profits, if there is no uncertainty as to what they would have been; and if the plaintiff does not elect to consider the contract broken before the time for full performance has expired, and the cost of doing the work has meanwhile fallen, he is entitled to recover what difference there is to his advantage.
      7. Atkinson v. Morse, 63, Mich. 276, holding that a contractor, who is wrongfully prevented, by the. contrac tee from performing a contract to cut, haul, and deliver all the merchantable cedar on certain lands at a fixed price, can recover as damages the profits he would have made if he had been allowed to perform the contract, the measure of which is the difference between the cost of the work to be performed and the contract price.
      8. Petrie v. Lane, 67 Mich. 454, holding that where,, on the trial of a suit to recover damages for the failure of the defendant to deliver certain saw-logs, which the plaintiffs had agreed to saw into lumber and pile upon the plaintiffs’ dock at an agreed price per thousand feet, the plaintiffs do not offer to show that they have incurred any damage by reason of expenses necessarily incurred in preparing to perform the contract, or that their mill has been idle by reason of defendant’s failure to furnish said logs, and do not even claim nominal damages, but, as matter of law, claim to be entitled to the profits upon all of the logs mentioned in the contract, independent of any fact or thing showing actual damages, a verdict is properly directed in favor of the defendant.
      9. Leonard v. Beaudry, 68 Mich. 312, holding, in a suit by a mill-owner to recover damages for the non-delivery of logs under a contract for their manufa'cture into lumber at an agreed price per thousand feet, that the measure of damages is the difference between the cost of manufacture and the price agreed to be paid therefor.
      10. Rayburn v. Comstock, 80 Mich. 448, holding that where, after the partial performance of a contract to cut and deliver all of the timber suitable for saw-logs upon certain lands at a specified price per thousand feet, the contractors aré prevented by the contractees from completing the contract, and the remainder of the timber is cut and delivered by the contractees and by another contractor, the difference between the cost of completing the contract and the contract price is a proper measure of damages in a suit by the first contractors for breach of the contract.
      11. Davis v. Davis, 84 Mich. 324, holding that where, in a suit to recover for milk-cans sold to a creamery company, the defendants seek to recoup damages for loss of profits arising, as claimed, from a breach of the agreement of the vendors to protect the defendants in the exclusive use of that kind of can in specified territory, and the testimony fails to show that, if other creameries had not used the can in the territory, the residents therein would have furnished cream to the defendants in preference to the other creameries in other cans, but does show the refusal of a portion of such residents to supply defendants with cream in the kind of cans purchased, there is nothing tangible upon which the jury can base an estimate of defendants’ loss of profits on account of such competition.
      12. Mueller v. Mineral Spring Co., 88 Mich. 390, holding that the measure of damages for the breach of a contract by which the plaintiff was made sole agent in certain territory for the sale of mineral water of which the defendant was the sole proprietor, and which it agreed to furnish to the plaintiff at an agreed price, is the profits which the plaintiff might have realized on sales if the defendant had performed the contract.
      13. Hutchinson Manufacturing Co. v. Pinch, 91 Mich. 156, holding that the prospective profits, arising from the use of a custom and manufacturing flouring-mill, are too speculative to be shown as a measure of damages for the breach of a contract for furnishing machinery and repairing the mill within a specified time, and by reason of which breach the owner lost the use of the mill.
      14. Lee v. Briggs, 99 Mich. 487, holding, in a suit by a contractor for being prevented from performing a logging contract by the sale by the contractees of that portion of the land out of which alone a profit could have been made, that the difference between the cost of cutting and removing thé timber from the entire lands and the contract price is a proper measure of damages.

   Grant, J.

The defendant is a corporation organized under the laws of this State, and authorized to issue endowment certificates, payable on the death of members to beneficiaries selected by them, and is operated under the lodge system, the lodges being known as tents.” It was incorporated in 1885 by five incorporators, who constituted the board of trustees. A Mr. Boynton was secretary and one of the trustees, and to him was committed the chief management of the association. The organization appears to have met with great favor, and before the close of the first year was in active operation in many states and in Canada. It had from 50 to 75 agents engaged in organizing tents. These agents were compensated by a part of a membership fee, a certificate fee, and a quarterly per capita tax. No tents could be instituted with less than 15 members in places of 5,000 population or under, or with less than 25 members in places of over 5,000 population. Plaintiff was a man of considerable experience in organizing associations of this character. Negotiations between him and Mr. Boynton resulted in the execution of a contract dated October 5, 1885, by which plaintiff was given the sole control of instituting and organizing new tents or subordinate bodies in the state of Indiana. The contract fixed the following compensation for his services:

“1. Sixty dollars of the charter fee for each tent he or his deputies may institute in said state of Indiana.
“2. All the membership fee on all over 15, and under 25, members put in new tents on organization.
3. One-half of the membership fee on all members put into new tents on organization, over 25 members.
4. All the per capita tax collected by him from the first 15 members in each new tent.
5. One-fourth of the annual per capita tax on the entire membership in the state of Indiana shown to be in good standing on the books of the supreme tent at the close of each quarterly term, the said money to be paid to the said Hitchcock within 30 days thereafter.
“•6. He shall also receive as compensation for -visiting organized tents within the state, with a view of building them up and increasing their membership, all the quarterly per capita tax paid in by new members secured in such work, and also such portion of the membership fee as may be agreed upon between him and the tents. The aforesaid proportion of charter fee, membership fee, per capita tax, etc., shall be full and complete compensation for such services.”

It provided, further, that plaintiff should give his full time and services to the work, and execute a.good and sufficient bond, in the sum of $500, for the faithful performance of his-duties, and the turning over of all moneys belonging to the supreme tent. It also contained the following provisions:

It is further agreed between the parties hereto that, ivhenever a great camp is organized in said state, then this agreement shall be null and void, and of no binding force. It is also agreed that, whenever either party to this agreement desires to cancel the same, at least 30 days’ notice must be given by tbe party so electing. This agreement cannot be canceled without the consent of all parties to the contract.”

No great camp could be organized in any state until there were at least 50 tents and 2,000 members.

Plaintiff furnished his bond, received his commission, and immediately entered upon the work. In 13 months he had organized 10 tents, with a total membership of 268. The defendant then broke the contract, early in 1887, and demanded a surrender of plaintiff's original commission, which he refused, and then left its employ. The defendant immediately placed other agents in the state, who established 40 more tents, and brought the membership up to a sufficient number to establish a great camp.

Upon the trial the learned circuit judge directed a verdict for the plaintiff, under clause 5, for one-fourth of the annual per capita tax paid in by the members of the 10 tents which he organized, and who continued as members, which, with interest, amounted to $454.25. As to the other damages claimed, the judge held that they were speculative, that there were no certain data from which they could be computed, that they were uncertain of ascertainment, and directed a verdict for the defendant.

All questions arising under this contract, except that of damages, have been determined in favor of plaintiff by the verdict and judgment. From this determination defendant has not appealed. The only question, therefore, before this Court, is the ruling of the court below as to the measure of the damages. Plaintiff insists that he introduced and offered evidence from which, the jury might, with reasonable certainty, determine the profits which he might have made, but which were lost to him by the violation of the contract. He gave evidence tending to show the profits made on the contract while he was engaged in the work. He offered to show that the first labor of starting the enterprise is more expensive than that which follows, and that after the work is fairly started it is easier to organize tents than at first. He also offered a statement taken from the books of the defendant, showing the organization of 40 tents after the breach of the contract; 125 members in new tents, over 15 and under 25; 66 members in new tents, over 25; and the total number of new members. From this statement he made up his total claim, as follows: Charter fees, 40 tents, $2,400; membership fees under clause 2 of the contract, $625; membership fees under clause 3, $165; per capita tax under clause 4, $300; per capita tax under clause 5, $2,056.83.

The rule governing these cases is established by an unbroken line of authorities, — that damages which are purely speculative in character, and dependent on so many contingencies that they cannot be traced with reasonable certainty to the breach of the contract, are not allowable. The difficulty lies in determining whether the facts of a particular case bring it within or without this rule. There is no sounder basis for damages for breach of contracts of this character than the profits, when they' can be determined with proximate and reasonable certainty. In fact, there is no other basis. Their loss is the natural and proximate result of a breach, which the law presumes that each party foresees.. The rule does not require that such data be furnished that they can be computed with mathematical exactness. When one breaks a contract which the other party has partly performed, and the violator then performs the work himself, from which he reaps the profits which the other party might have made, he cannot escape liability for damages, if such other party can show the profits made while he was executing it, and the benefits received from its subsequent completion. The contract in this case was specific and definite in all respects, fixing the amount of work and the price. It was contemplated that the plaintiff should make profits, and the defendant was to be benefited by his work. These results were being successfully accomplished when the contract was broken. In case of a breach by plaintiff, defendant could perform the work, and recover as damages the difference between the price agreed upon and the cost of completion. In case of a breach by defendant, the profits lost constitute the legitimate measure of damages. The law is not so blind to justice as not to require the defendant to respond in damages, if there is any reasonable basis for their ascertainment. There is no presumption, legal or otherwise, that the plaintiff could not have completed the work. The defendant was satisfied with the success of the plaintiff. It is a fair presumption that he would have succeeded. It is a fair' inference from the evidence that the defendant's officers broke the contract because of this success, and the belief that they could secure the accomplishment of the work cheaper, which they in fact did. The defendant took advantage of the work which the plaintiff had done, and completed it. The defendant may not now say, “It is true I completed the work, but there is no certainty you could."

This is not a case where one party agrees to sell goods-for another for a year, to receive as compensation his share of the profits made; but it is a case where one agrees to sell a certain amount of goods, with no limit as to time, at a given price, and for a given compensation, and also where the goods have been sold at the same price within the agreed territory, and within the time-contemplated. It has been demonstrated, not only that the work could be, but that it has been, done. It is a fair inference that it could have been done as well by the plaintiff as by the defendant. One element of damage is established by the contract, and the evidence from the defendant’s own books, viz., the amount agreed to be paid, and the benefits reaped by it. The only other element is tbe cost of doing the work, which, deducted from the amount to be paid, would establish the profits. The expense of what plaintiff did is some evidence upon which to base a judgment of the expense of doing the rest of the work. If that be the only evidence as to the cost, and plaintiff can establish by experience that it is more difficult and expensive to accomplish the first part of the work than the last part, defendant cannot complain if the jury take that as a basis to determine the cost. On the contrary, such basis would be favorable to the defendant; and, if this was the only basis, we think, under the circumstances of this case, it was sufficient to justify a submission of the case to the jury. He who breaks his contract may not deny to the injured party the fair inferences to be drawn from the part performed.

In Bagley v. Smith, 10 N. Y. 489, one partner sued another for breach of the partnership articles, and recovered profits lost by the unauthorized dissolution. The court say:

The loss of profits is one of the common grounds, and the amount of profits lost one of the common measures, of the damages to be given upon a breach of contract.' * * * It is very true that there is great difficulty in making an accurate estimate of future profits, even with the aid of knowing the amount of the past profits. This difficulty is inherent in the nature of the inquiry. We shall not lessen it by shutting our eyes to the light which the previous transactions of the partnership throw upon it. Nor are we the more inclined to refuse to make the inquiry by reason of its difficulty, when we remember that it is the misconduct of the defendant which has rendered it necessary.’’

A review of the vast number of authorities upon this subject would involve a critical statement of the facts of each case, and the writing of an opinion of unnecessary length. It is sufficient to say that we think this case comes within, and is ruled by, the following authorities: Wakeman v. Manufacturing Co., 101 N. Y. 205; Treat v. Hiles, 81 Wis. 280; Mueller v. Mineral Spring Co., 88 Mich. 390; Oliver v. Perkins, 92 Id. 304. The case of Wakeman v. Manufacturing Co. is similar in its facts to the present case, and many of the authorities are there collated and discussed.

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J. Montgomery, J.

license: Public Domain

text:
    Emma Grunert, Executrix, etc., v. Henry Becker, Ferdinand Meier, and Auguste Meier.

      Mortgage — Priority—Foreclosure—Apportionment of proceeds.

    The purchaser of a farm paid $1,100 of the purchase price iu cash, and secured the remaining $1,900 by a mortgage on the land. The $1,100 was a portion of a loan of $1,500 which he secured by a mortgage on the same land, both mortgages being of even date, but, by an agreement with the grantor, the $1,500 mortgage was to have priority over his mortgage. The grantor recorded his mortgage first. Both were five-year mortgages. The first mortgagee, on default in payment of the first year’s interest on his mortgage, commenced to foreclose it. The second mortgagee' defended on the ground of an alleged agreement by the first mortgagee, in consideration of the priority of his mortgage, not to foreclose it until the end ■of the five years, and in the mean time, in case of the failure of the common mortgagor to pay the interest and principal of the second mortgage as it fell due, to make such payment. The latter, but not the former, agreement was established on the hearing, and, at the time of the decision of the appeal from the decree rendered on said hearing, nearly four and one-half of the five years had elapsed, during which time the second mortgagee had practically defended the mortgagor’s possession, and the interest on his mortgage had accumulated so that the principal and interest and costs of foreclosure approached the original consideration for the farm, and it was doubtful whether it would sell for that amount and the costs of sale. And it is held that the only consideration for the agreement of suretyship was the priority of the first mortgage; that the only advantage of such priority was the right to out off the mortgagor’s rights in the land upon his default; that it would be, grossly inequitable, in view of the fact that, by the conduct of the second mortgagee, the first mortgagee has been deprived of all benefit of the priority of his mortgage, to compel him, not only to lose his own claim, but to pay that of the second mortgagee; and it is therefore decreed"that the proceeds of the sale of the mortgaged premises, after deducting the costs of the court below and of sale, shall be divided on the basis of 15-34 to the first mortgagee and 19-34 to the second mortgagee, and that the first mortgagee shall be released from all obligation upon his agreement of suretyship, and the land discharged from both mortgages. ,
    Appeal from Berrien. (O’Hara, J.) Argued February 13, 1894. Decided April 10, 1894.
    Bill to declare a mortgage to be a prior lien to an earlier recorded mortgage, executed on the same day, and to foreclose the same. Complainant and defendant Becker appeal.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Edward. Bacon, for complainant.

      George W. Bridgman, for defendant Becker.
   McGrath, C. J.

On the 16th day of October, 1889, defendant Becker sold and conveyed to defendant Meier 160 acres of land for the sum of $3,000. Meier had no means, and Julius Grunert was to advance to. Meier certain moneys. Becker, Grunert, and Meier had an interview. Grunert agreed to advance the sum of $1,500, but insisted upon a first mortgage for the money so advanced, and Becker insisted upon a first mortgage for the balance of the purchase money. It was finally agreed that Grunert should have the first mortgage, but the parties disagree as to the conditions upon which the Grunert mortgage was to have priority. The parties repaired to the office of a justice of the peace, where the deed and mortgages were prepared and executed. The justice spoke English only. Grunert spoke and understood English, but imperfectly. Becker, although a German, spoke English fluently, and gave the instructions to the justice. The deed and both mortgages were executed in blank, and were filled out by the justice after the parties hád separated. Neither mortgage contained any reference to the question of priority. What arrangements were made with reference to recording the papers does not clearly appear; but Becker secured the record" of his mortgage first, and Grunert received his mortgage after its record, which was the first time he had seen it. Meier was already indebted to Grunert, and received but $1,400 upon the mortgage, and of this sum he paid Becker $1,100 upon the real estate, and $300 for personal property which was upon the farm. Grunert’s mortgage was for $1,500, and Becker’s for $1,900; and both were for five years, with interest at 6£ per cent., payable annually.

Meier defaulted upon the first year’s interest, and Grunert (since deceased) filed this bill to have his mortgage declared the first, and to foreclose the same. A decree pro confesso was taken against Meier. Becker answered, admitting that Grunert’s mortgage was to be first, but, although both mortgages are silent upon the subject, set up that the agreement was that Grunert should not foreclose his mortgage until the end of the five years, and that in the mean time, in case Meier should fail to pay the interest and principal of the Becker mortgage as it became due, Grunert was to pay tbe’ same, and that, at the time of the execution of the mortgages, Grunert signed the following paper:

This agreement, made between Henry Becker and Julius Grunert on the 16th day of October, 1889, witness■eth said Julius Grunert agrees to pay to Henry Becker if the said Meier, who gave a mortgage, fails to pay Henry Becker, the said Julius Grunert agrees to pay the said Henry Becker the balance what he owes on said farm described in mortgage.'”

Grunert insisted upon the hearing that this paper was not understood by him, and that he was. imposed upon; but we think the fact of execution, with knowledge of its contents, was fully proven, whether he understood the legal effect of the writing or not. The record utterly fails, however, to- establish the other agreement set up by Becker. Hnder this supplemental agreement, Grunert ■occupied the situation of a surety, simply. The only consideration for this agreement was the priority of his mortgage. The only advantage that such priority gave him was the right to cut off Meier upon his default. Nearly four and one-half years of the' five have now elapsed, and ■during all that time Becker has practically defended Meier’s possession. In the mean time the interest on Becker’s mortgage has accumulated so that the principal, the interest, and the costs of foreclosure approach the original consideration for the farm; and, from the testimony in this record, it is doubtful whether the farm will sell for sufficient to satisfy that claim, with the costs of sale. It would be grossly inequitable, in view of the fact that, by Becker’s conduct, complainant has been deprived of all benefit and advantage of the priority of his mortgage, to compel him now, not only to lose his own claim, but to pay Becker’s.

The proceeds of the sale of the premises, after deducting the costs of the court below and the further costs of sale, should be divided, 15-34 to complainant, and 19-34 to defendant Becker. Complainant should be released from all obligations upon the said personal agreement, and the land be thereupon discharged from both liens.

The decree will bp modified accordingly, and complainant will be entitled to the costs of this Court against defendant Becker, and the record remanded.

Long, -Grant, and Hooker, JJ., concurred with Mc-Grath, C. J.

Montgomery, J.

(dissenting). I cannot concur in the conclusion reached by the Chief Justice. I think the record sustains the conclusion which is reached in the majority opinion, — that the attempt on the part of the defendant Becker to assert the claim that the complainant is not entitled to foreclose his mortgage until the end of five years is unconscionable. Yet I do not think it is competent for the Court to impose on the defendant, as a penalty for setting up this unconscionable defense, the terms of the decree provided in the opinion. I am unable to find in the record a basis for any precise determination as to the amount of complainant’s damage by such defense, if it were permissible to punish the defendant for interposing the defense at all, except in the way of awarding costs for vexatious appeal.


author: McGrath, C. J.

text:
    Addie L. Tobey v. Archer R. Tobey and Samuel H. Tobey.

      Husband and wife — Separate maintenance — IAen on lands,

    1. Section 2 of Act No. 243, Laws of 1889, entitled “An act to provide wives with property and maintenance from their husbands’ estates when neglected or deserted by them,” etc., empowers the. court to grant an injunction restraining the sale of the husband’s property, and provides that notice of such injunction filed with the register of deeds shall operate as an attachment of the property, and that, to enforce its decree, an execution may issue, and be levied upon such real estate; but How. Stat. § 6293, which provides that the payment of the sum fixed by the court for the support of a wife and minor children when deserted by the husband and father may be secured upon real estate, is not expressly repealed by said Act No. 243, and the exercise of the authority thereby conferred is not inconsistent with that conferred by the 1889 act.
    2. A son induced his wife to join with him in the conveyance to his father, without consideration, of 80 acres of land, after which 40 acres of other land, valued at $2,000, was purchased, subject to a $600 mortgage, and the deed taken in the son’s name. The son and his wife occupied this 40 acres as a homestead up to the time of their separation, after which event the father, who had agreed to pay the $600 mortgage, secured a mortgage for $1,000 from his son on the 40 acres. He then sold the 80 acres, and, having secured an assignment of the $600 mortgage, commenced to foreclose both mortgages. The wife filed a bill under the statute to secure a separate maintenance, and on the hearing it appeared that the 80 acres was conveyed without consideration; that it was not intended as a gift to the father; and that, when the 40 acres was purchased, it was the understanding that it was to be paid for by the father, in consideration in part for the conveyance to him of the 80 acres. And a decree making the sum awarded for the wife’s support a lien upon the 40 acres, with priority over both of the mortgages held by the father, is affirmed.
    Appeal from Montcalm. (Smith, J.) Argued February-15, 1894. Decided April 10, 1894.
    Bill to compel defendant Archer B. Tobey to make a. suitable provision for the separate maintenance of complainant. Complainant and defendant Samuel H. Tobey appeal.
    Decree set aside, record remanded, and complainant permitted to amend her bill and re-enter the decree-
    The facts are stated in the opinion.

      Mlsworth & Barden, for complainant.

      FitzGerald & Barry, for appellant Samuel H. Tobey-

      JV. O. Griswold, for defendant Archer R. Tobey.
   McGrath, C. J.

Complainant is the wife of Archer R. Tobey, and defendant Samuel H.' is father of Archer R. This bill is filed to compel the husband to make proper and suitable provisions for the support of the wife and her infant child, and joins Samuel H., alleging that certain fraudulent conveyances have been made by the husband to his father in fraud of1 complainant’s rights. The court below gave a decree for complainant, from which Samuel H. and complainant appeal.

Upon a careful examination of the record, we are entirely satisfied that the evidence justified the conclusions arrived at by the court below upon the merits.

The parties were married May 21, 1890; and on May 24, 1890, Samuel H. conveyed to Archer R. 80 acres of land,' valued at $4,000. On October 29, 1890, complainant was induced to join with her husband in a deed bf this land back to Samuel Ii. No consideration passed from father to son for this conveyance, but complainant alleges that ■-she was induced to join in the conveyance by representations made that the purpose was to purchase other land, •or use the avails in mercantile business. Afterwards, on ■October 31, 1891, 40 acres of land, of the value of about '$2,000, was purchased in the husband’s name; and complainant and 'her husband went into possession of the land -so purchased, and occupied it as a homestead until the •time of the final separation, January 27, 1892. Samuel ,H. furnished the major portion of the money with which this purchase was made, except that the land was bought subject to a mortgage of $600. The evidence tends to show that Samuel H. was to take up this mortgage. After the separation of the parties, and on February 3, the husband gave a mortgage upon this 40 acres to his lather, for $1,000, and it is 'alleged that this mortgage was given to secure the moneys advanced by Samuel H. with which to make the purchase. Samuel H. afterwards sold the 80 acres of land first referred to, and procured the assignment to himself of the mortgage of $600, and commenced proceedings to foreclose both mortgages. The decree directed the husband to pay to complainant a specific sum each year, in half-yearly installments, and makes the decree a lien upon the 40 acres of land, giving it priority over the mortgages held by Samuel H.

It is insisted that Act No. 243, Laws of 1889, does not authorize the creation of the lien. But the second section of the act empowers the court to grant an injunction restraining the sale of the property, and provides that notice of such injunction filed with the register of deeds shall operate as an attachment of the property, and that, to enforce its decree, execution may issue, and be levied upon such real estate. How. Stat. § 6293, expressly provides that the payment of the sum fixed by the court may be secured upon real estate. Act No. 149, Laws of 1885, and Act No. 90, Laws of 1887, amended How. Stat. § 6291. Act No. 243, Laws of 1889, repeals Acts No. 90 and 149 aforesaid, and “all acts and parts of acts inconsistent herewith.” Section 6293 is not expressly, repealed, and the exercise of the authority thereby conferred is not inconsistent with the exercise of the power conferred by Act No. 243, Laws of 1889.

It is next urged that the decree is not supported by the allegations in the bill. The bill alleges that the conveyance of the 80 acres was made to defraud complainant, but alleges simply the ownership of the 40 acres, and its occupation as a homestead, and does not contain any allegation as to the circumstances connected with its purchase, or refer to the existence of the mortgages in question. The bill is therefore defective. But it may be amended. It is evident from this record that the 80 acres of land was conveyed to Samuel H. without consideration; that it was not intended as a gift from son to father; and that, when the 40 was purchased, it was the understanding that it was to be paid for by the father, in consideration in part of the conveyance to him of the 80 acres.

The decree will be set aside, the record remanded, the complainant be permitted to amend, and the decree re-entered.

Eespecting the amount decreed to complainant, the testimony bearing upon that subject is meager, and the court below was in a much -better position to determine that question than we are. No costs will be allowed to either party.

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


author: Long, J.

text:
    John A. Webber v. Robert Ramsey.

      Mortgage — Sale of timber — Notice—Impairing security — Action by mortgagee — Inability of purchaser.

    1. The record of a mortgage is constructive notice of the lien to a purchaser of timber standing on the mortgaged premises.
    2. A mortgagee has the right to the whole security to meet the amount of his mortgage incumbrance, and cannot be compelled to take a part.
    8. A mortgagor, after the mortgage was recorded, sold a portion of the timber standing on the land, and which constituted.a valuable portion of the mortgage security, to a party who had no actual notice of the mortgage. The purchaser, before commencing to cut the timber, received notice of the mortgage from the assignee to whom the mortgagor had assigned his property for the benefit of his creditors after the sale of the timber, and who further advised the purchaser that the cutting of the timber would injure the mortgagee; but, notwithstanding, such notice and advice, the purchaser entered upon the land on Sunday, with a force of men, and commenced to cut the timber. While proceeding with the work, the mortgagee declared the entire mortgage debt to be due under the interest clause in the mortgage, filed a bill of foreclosure, and secured an injunction restraining the cutting or removing of the timber, but which injunction was afterwards modified so as to permit the purchaser to remove the timber already cut, and after which, by stipulation, the bill was dismissed, without prejudice as to the purchaser, and a decree taken against the remaining defendants for the amount of the mortgage. A sale of the mortgaged premises failed to satisfy the amount due, and, without taking out an execution for the deficiency, — the estate of the mortgagor having paid less than two percent, of his unsecured debts, — the mortgagee sued the purchaser to recover the value of the timber taken from the land. And it is held that the plaintiff is entitled to recover.
    Error to Ionia. (Smith, J.) Submitted on briefs February 16, 1894. Decided April 10, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      George E. Nichols and F. B. M. Davis, for appellant,
    contended:
    1. To enable the plaintiff to recover, it must appear that the purchasing and cutting of the timber was done by the defendant, knowing that the mortgagor was insolvent, that the rights of the mortgagee would be impaired and his security diminished, and that he would be defrauded thereby; citing Van Pelt v. MeGraw, 4 N. Y. 110; Wilson v. Maltby, 59 Id. 126; Vates v. Joyce, 11 Johns. 186; Gardner v. Ueartt, 8 Denio, 282; Jones v. Oostigan, 12 Wis. 677; Buckout v. Swift, 27 Cal. 486.
    2. In view of the fact that the findings of fact fail to show that the mortgagor was insolvent when the suit was commenced, or that the defendant had any knowledge of the plaintiff’s rights as mortgagee, or knew that, by removing the timber, he was impairing the mortgage security, or that he acted in bad faith, but, on the contrary, it affirmatively appearing that, at the time the defendant purchased the timber, he had no actual knowledge of the mortgage lien, or of the insolvency or financial condition of the mortgagor; that he took a bill of sale of the timber, for which he paid $225; that, after such purchase and payment, he heard that the mortgagor had made an assignment, and inquired of the assignee whether there would be any objection to his cutting the timber, and was then, for the first time, informed of the existence of the mortgage, but that no one would be injured by such cutting, unlets it was the plaintiff, so far as the assignee knew; that the premises were worth $8,000, and the mortgage debt, including interest, was $8,163; and .that the defendant has acted in good faith in the whole matter, and without any intent to defraud, — the following cases show that the defendant is not liable in this action: Wilson v. Maltby, 59 N. Y. 126; Oooper v. Davis, 15 Conn. 556; Vanderslice v. Knapp, 20 Kan. 647; Tomlinson v. Thompson, 27 Id. 70; Shephard v. IAttle, 14 Johns. 2lt); and see Cooley, Torts, 335, 336.
    3. There are other reasons which estop the plaintiff from any right of recovery in this case, namely, that the timber was cut before the plaintiff exercised his option and declared the mortgage debt due, and commenced suit by foreclosure; that in such suit the defendant here was made a defendant, and enjoined from cutting or removing the timber-, which injunction was subsequently modified so as to permit the removal of the timber which had been cut; that the complainant after-wards amended his bill, and asked for an accounting against the defendant for this timber, and then, by stipulation, dismissed his bill as against the defendant, and proceeded to a sale of the mortgaged premises without further notice to him, and without the taxed bill of costs being sworn to; citing Stout v. Keyes, 2 Doug. 184; Cooley, Torts, 336, and cases cited.
    4. In this connection, attention is called to the fact that no execution for the deficiency was taken out, and that it does not appear that the per cent, paid by the assignee was ever credited upon this indebtedness; citing Shields v. Riopelle, 63 Mich. 458; nor does it appear that plaintiff obtained leave to bring this action; citing How. Stat. § 6703; Joslin v. Millspaugh, 27 Mich. 517; Goodrich v. White, 39 Id. 489; Vaughan v. Blade, 63 Id. 215.

      William O. Webster, for plaintiff.
   Long, J.

September 16, 1885, Levi Shotwell and wife executed a mortgage to the plaintiff for $7,000, with interest at 7 per cent., payable annually. The mortgage covered 254 acres of land, and was recorded in the office of the register of deeds on the day of its execution. The mortgage contained an interest clause providing that, should any default be made in the payment of the interest, or any part thereof, on any day when payable, and the same should remain unpaid for 20 days, the principal, with all arrearages of interest thereon, should, at the option of the holder of said mortgage, become due and payable. September 16, 1889, Shotwell made default in the payment of the annual installment of interest. October 21, 1889, defendant in this suit purchased from Shotwell the timber on“ 12 acres of the mortgaged land, paying $225 therefor, and taking a bill of sale of said timber from Shotwell. At the time of this purchase the defendant had no actual knowledge of the plaintiff’s mortgage, though it was of record, but he was informed of it before he entered upon the land and cut and removed the timber. October 24 of that year, Shotwell made a common-law assignment of all his property to Laban A. Smith, and on the final settlement of that estate it paid only one cent and 48-100 on a dollar of his unsecured indebtedness. October 26 defendant saw Shotwell, and ascertained that he had made such an assignment. He then called upon the assignee to get his permission to cut the timber,. and was advised by him that the plaintiff would be injured by the cutting of the timber. On Sunday, October 27, defendant entered upon this 12 acres with a force of men, and commenced to cut the timber. While proceeding with this work, and on November 1, the plaintiff exercised his option under the interest clause in his mortgage, and commenced a suit in the circuit court for the county of Ionia, in chancery, to foreclose the mortgage, and made Shotwell and his wife, the assignee, and the defendant herein defendants in that suit. An injunction was allowed by the court, restraining the defendant ¿rom cutting or removing the timber in question, but it was afterwards modified, and the defendant allowed to remove the timber already cut, but restraining him from any further cutting. Subsequently, the complainant in the foreclosure suit, by a stipulation between the solicitors, and the order of the court thereon, dismissed his bill of complaint as to defendant Eamsey without prejudice, and thereupon the suit proceeded • to a decree against the other defendants. The decree of foreclosure was for $8,163, and was dated December 22, 1890. On February 21 following, the premises were sold under, said decree, and .struck off to the plaintiff here for $6,¿300, he being the highest bidder, and that being the highest sum offered for them. The circuit court commissioner who made the sale reported a deficiency of $1,837.84; and the sale was duly confirmed. No execution was ever issued for the collection of this deficiency.

This action was brought by the plaintiff to recover from defendant, Eamsey, the value of the timber taken from the land. The cause was heard before the court without a jury, and the court made findings of fact and law, and entered judgment for plaintiff for $300, finding that sum to be the value of the timber taken. The court found as a fact that the trees and timber standing and growing upon the mortgaged premises constituted a valuable part of the security for said mortgage indebtedness, and that the cutting of the same injured and deprived the plaintiff of his said security to the extent of the value of said trees and timber cut down and removed. Exceptions were taken to the conclusions of law, and the points raised for consideration here, as claimed by defendant’s counsel, are—

1. That, as matter of law, the defendant is entitled to the judgment. k
2. That, by reason of there never having been issued any execution for the deficiency on the sale on said foreclosure, the plaintiff is not entitled to recover. *
3. That, defendant having purchased the timber of Shot-well in good faith, and paid for the same before notice of the mortgage, he was entitled to remove such timber from the land.
4. That plaintiff had no interest in the land that would enable him to recover from the defendant for the alleged trespass by way of taking the timber that defendant had purchased, and that the plaintiff had no possessory rights before foreclosure.

The main contention upon the part of defendant is that the facts found by the court below do not warrant a recovery; that, in order to enable the plaintiff to recover, it must appear that the defendant, at the time of his purchase of the timber, knew that the mortgagor was insolvent, and that the taking of the timber would impair' the plaintiff's security; and that, inasmuch as the court found the mortgaged premises to be worth about $8,000 at the time the timber was cut, and there was no finding that defendant knew of Shotwell's insolvency, judgment should have been given for defendant. It is conceded that circumstances may exist under which a mortgagee might recover for the removal of timber or other things from mortgaged premises by another, but it is claimed that such facts are not shown here; that, in order to recover, it must be shown that the purchasing and cutting of the timber was done by the defendant, knowing that the mortgagor was insolvent, and that the mortgagee's security would be impaired.

The findings of fact made by the court amply support the judgment. The mortgage was duly recorded before the sale of the timber was made to the defendant. He had constructive notice of the mortgage, therefore, before the purchase was made by him. Before any timber was cut, he had actual notice of the mortgage and of the insolvency of the mortgagor. .Notwithstanding such notice, he went upon the premises on Sunday, with a force of men, and did the cutting. He knew at this time that the removal of the timber would impair the security of the mortgagee. The mortgage was a valid incumbrance upon the land, and the mortgagee had the right to the whole security to meet the amount of his mortgage incumbrance, and could not be compelled to take a part. The facts found by the court below show conclusively that the defendant was not acting in good faith in cutting the timber and in attempting to remove it. Upon the sale of the premises it was demonstrated that the mortgage security was lessened by the act of the defendant. It is not like some of the cases cited by defendant’s counsel, where the property removed had gone into the hands of an innocent purchaser after its 'removal, and the action was commenced to recover against such third party. Here the party committing the act by which the mortgage security was lessened in value is made the party defendant, and the action is to recover from him the value of what he has taken away. The case falls within the principles laid down in Van Pelt v. McGraw, 4 N. Y. 110, in which the action was permitted to be maintained. Any other rule than this would permit the lands to be stripped of valuable timber, and even of the buildings, to the damage of the mortgagee. The buildings or timber frequently are the main part of the mortgage security; and, if 12 acres of timber could be cut and removed under the circumstances here stated, then the whole might be removed, or all the buildings removed, and the mortgagee would be without remedy. The bill upon which the injunction was allowed was dismissed as to defendant here without prejudice, and the defendant thereupon removed the timber cut. He must answer for its value.

Judgment affirmed.

The other Justices concurred.


author: McGrath, O. J.

text:
    Isaac M. Turner, Assignee of the Owashtanong Boat Club of Grand Rapids, v. Ira C. Hatch et al.

      Attachment — Dissolution—Equity jurisdiction.

    1. The remedy of an assignee of an insolvent debtor for the dissolution 'of an attachment upon the assigned property is in chancery.

    2. The court out of which a writ of attachment issues does not, in the first instance, determine that good cause exists for the issuance of the writ, nor does it direct the seizure of specific property, nor is it vested with (original) jurisdiction of any controversy that may thereafter arise as to the existence of cause for the attachment.
    S. The circuit court of Kent county, in chancery, has jurisdiction of a bill by an assignee of an insolvent debtor to dissolve an attachment on the assigned property issued from the superior court of Grand Rapids.
    Appeal from Kent. (Adsit, J.) Argued February 14, 1894. Decided April 10, 1894.
    Bill to dissolve writs of attachment. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      T.„ F. Carroll and L. F. ■Knappen, for complainant.

      Thomas F. McQarry and William F. Mg Knight, for defendants.

       See Bank v. Barnes, 100 Mich. 1, subd. 2 of note, as to who may apply for the dissolution of an attachment.

   McGrath, O. J.

Defendants attached the real and personal property of the Owashtanong Boat Club on Jan-, uary 26 and 27, 1892. The boat club made an assignment, under the statute, to complainant, January 27, 1892, and the assignee found the sheriff in possession under said writs of attachment. The writs were issued out of the •superior court of Grand Rapids. The assignee files this bill in the circuit court for the county of Kent, in chancery, to dissolve the writs.

It is conceded that the remedy of the assignee is in chancery, but it is insisted that the superior court acquired jurisdiction by the attachment proceedings, and that the jurisdiction thus acquired is exclusive. The question here, however, relates to the validity of the lien, and does not "touch the issue in the superior court. The proceedings to .secure the statutory advantage is special. The court out of which the writ issues does not, in the first instance, determine that good cause exists, nor does it direct the seizure of specific property; and that court is not vested with jurisdiction of any controversy that may thereafter arise as to the existence of the cause. Complainant’s assignor could only apply for the dissolution of the attachment to a circuit court commissioner, to the judge of the superior court, or to the circuit judge. This proceeding does not divest the superior court of jurisdiction- of any matter directly involved in the suit before it. All the questions triable by that court remain for adjudication by it. It will not be insisted that, if property seized in attachment is claimed by a third party, such third party cannot bring replevin, and, as between these courts, choose either, and in the forum so chosen have the question of the title to the property determined. Both of these courts are creatures of the same fundamental law, are subject to the same rules, and the determination of the question arising in either is subject to review by the same tribunal. The rule that prevails as to questions arising between state .and federal courts has no application.

The decree of the court below is therefore affirmed, with costs to complainant.

The other Justices concurred.


author: Hooker, J.

text:
    The Fifth National Bank of Grand Rapids v. Sherman B. Daboll, Circuit Judge of Clinton County.
    [See 89 Mich. 15; 97 Id. 502.]

      Equity practice — Consent order — Mortgage—Distribution of trust fund.

    1. Where the circuit court in.- chancery, to which a case brought to determine the amount upon which a dividend should be paid to the several creditors secured by a trust mortgage is remanded by the Supreme Court, to make the distribution of the trust fund in accordance with the decree of that Court, is convinced that its order of distribution is incorrect as measured by said decree, it has the power to vacate the order, to the end that the direction of the appellate court may.be carried out.
    2. A chancery order which does not purport upon its face to have been made by consent, and which was not considered by the circuit judge as having been so made on the hearing of a motion to vacate it, will not be treated as such on an application for a mandamus to compel him to vacate' an order ' granting said motion. .
    8. In order to correct a misapprehension as to the effect of the decree in High v. Fifth Rational Bank, 97 Mich. 502, in which a bill was filed by a trustee to determine the amount' upon which a dividend should be paid to the several creditors secured by a trust mortgage, it is held that that decree determined:
    a — That the direct claim of each creditor, as stated in the mortgage, was separate and distinct from his contingent claim; that it was as though separate mortgages, coincident in point of time, had been given for said claims, each of which was entitled to its proportionate percentage of the fund, which percentage would not be affected by a part payment of any fund, unless it should be found to amount to a sum exceeding the balance unpaid of such fund, in which case such excess would be subject to application upon part-paid claims.
    b — That the decree, by affirming in the main that of the circuit court, settled the aggregate amount of the two classes of claims of each of the litigants, but did not determine the amount of each claim making such aggregate. ■
    o — That the decree directed a distribution, in conformity to these principles, among all of the creditors, and, as this Court could not determine whether the contingent claim of the relator, owing to large payments theretofore made upon it, would or would not be more than equaled by the sum apportioned upon such claim, no attempt was made to distribute 'the fund, but the case was remanded to the 'circuit court, to make, the distribution in accordance with the decree.
    4. And it is further held:
    a — That the amounts found due to the respective creditors upon their demands cannot be changed, nor can the case be reopened for a rehearing, by the circuit court, this Court alone, if any, having the power to grant such relief; but as said decree contemplates a distribution which involves the ascertainment of, the constituent elements of the respective sums due, which have not yet been determined, the circuit court may take steps for such determination, if any be necessary.
    b — That much of the difficulty has arisen from basing the apportionment upon the amounts found due to the several creditors, whereas it should have been based upon the faces of their respective claims as stated in the mortgage; and if such apportionment resulted in extinguishing any claim or claims, the aggregate of such excesses would form a new fund, to be apportioned among the claims remaining unpaid, which latter apportionment also should be based upon the faces of the claims, and not on amounts remaining unpaid.

      Mandamus. Argued March 6, 1894. Denied April 10, 1894.
    Relator applied for mandamus to compel respondent to vacate an order setting aside an order of distribution of á trust fund. The facts are stated in the opinion, and in 89 Mich. 15, and 97 Id. 502.

      Earle & Hyde, for relator.

      H. E. Walbridge, for respondent.
   Hooker, J.

, The Scofield Buggy Company, being in failing circumstances, gave a mortgage to a trustee to secure certain creditors. Subsequently it made an assignment for the benefit of creditors, and one Pearl was appointed receiver. Upon application of High, the trustee under the mortgage, the court ordered Pearl, the receiver, to pay over to the trustee the proceeds of the mortgaged property to the full amount of the secured claims. This order was made February 4, 1891. On May 18, 1891, Pearl filed a petition, alleging that a portion of the secured claims of the Fifth National Bank of Grand Bapids and other creditors arose upon indorsements by the Scofield Buggy Company of its customers5 paper, and that considerable of this paper had been paid after the execution of the mortgage, and that some had been paid after proof of claims had been filed. The object of this petition was to reduce proportionately the amount to be paid to the trustee, it being apparent that the property mortgaged would not produce the amounts of the debts mentioned in the mortgage. Answer was filed by the Fifth National Bank, and proofs were taken, and on May 29, 1891, “on final hearing,55 an order was made by the circuit court, fixing the amounts upon which the claimants should have dividends as follows: American Wheel Company, .$5,355.03; Julius F. Pratt, as assignee of the Home Savings Bank, $22,294.78; Julius F. Pratt, as assignee .of the Preston National Bank, $5,066.05; the Fifth National Bank of Grand Bapids, $9,592.06. An appeal was taken to this Court by the Fifth National Bank, which resulted in a reversal and vacation of the order as to the Fifth National Bank, as appears from the journal of this Court. Thereafter (and perhaps before) the Fifth National Bank claimed a dividend upon the amount of its claim as stated in the mortgage, which it would seem that other creditors had not done. Whether the reason of this was that it was not to their advantage to do so we need not inquire. At all events, we find some of them contesting this claim of the bank, and High, the trustee, on February 29, 1892, filed' a bill, by reason of such contest, to settle this question. All parties to this controversy were made , defendants, and the bill set forth.at length the respective claims of Pratt and the American Wheel Company, as filed, • for the amounts fixed by the order of the circuit court, hereinbefore referred to. The Fifth National Bank filed a separate answer. Pratt and the wheel company joined, admitting the averments in relation to their own claims. They neither admitted nor denied that they instigated the filing of this bill, but by their answer contested the claim of the Fifth National Bank. The case went to hearing upon stipulated facts, and among them the amounts of the respective claims of Pratt and the wheel company. A decree was made, fixing the amounts upon which the several claimants interested in the trust fund were entitled to payment, and the percentages of the fund to which they were respectively entitled, as follows:

American Wheel Company____$ 5,296 78 .0734 per cent.
Julius P. Pratt, Home Savings Bank claim____________ 22,014 50 .3095 per cent.
Julius F. Pratt, Preston National Bank claim........5,002 80 .0693 per cent. .
Fifth National Bank__________ 22,558 19 .3129 per cent.

The decree ordered distribution in accordance with these figures.

-From this decree Pratt and the wheel company appealed, and the only question presented and passed upon by this Court was the claim of the Fifth National Bank, which was modified, and the case remanded for a distribution in accordance with the determination of this Court. The decree was in all other respects affirmed.

On December 2, 1893, an order of distribution was made upon the application of the Fifth National Bank, in which the percentages were the same as those in the'decree appealed from. Soon afterwards a petition was filed by the American Wheel Company and Pratt, alleging that of the claims included in said mortgage they had made proof of only so much as remained unpaid, and that under the decree of the Supreme Court they were entitled to a dividend upon the full amount of these claims as they existed on the 19th day of September, 1890, i. e., the day of the execution of the mortgage. It alleged further that by the terms of the order of December 2 the Fifth-National Bank would receive a dividend upon $905 which was not secured by said mortgage, which fact did not-come to the knowledge of counsel until after December 2, 1893, and that the fund to be divided amounts to about. $33,000, and the claims secured to $72,000, in round numbers, and that by that order the Fifth National Bank will receive at least $1,300 more than it is entitled to, according to the decision of the Supreme Court. The petition* concluded with a prayer for an order vacating the order of December 2, and a distribution in accordance with the-decision of the Supreme Court, and that the contingent, claims of the Fifth National Bank, Julius F. Pratt, and the American Wheel Company be paid in full, and the-remainder of the fund distributed among the secured creditors named in the mortgage on the direct liability prorata, and that said Pratt and the American Wheel Company be permitted to make further proof as to the amount, of their contingent claims on the 19th day of September, 1890, as secured by said mortgage, and that a rehearing; might be had upon the matters involved in the petition. An affidavit was filed in opposition to this application, from which it is argued that the order of December 2, 1893, was a consent order. After a hearing, the court made an order reciting that it appeared that the order of December 2 was erroneous, and in violation of the order of the Supreme Court, and gave the Fifth National Bank an undue advantage over all of the other defendants in the case, and ordering that it be set aside, and held for naught. It further provided that Pratt and the American Wheel Company might be permitted to take further proofs upon their contingent claims, and that the cause might in due time be noticed for rehearing for an order of distribution. It does not authorize proof as to the amount due the Fifth National Bank, or in any way attempt to reopen the question of what sum is its due upon its claim. A motion to vacate this order having been denied, the Fifth National Bank applies for a mandamus to compel it.

It is contended upon behalf of relator that the order of .December 2 was a consent order, and that it could not lawfully be vacated. The order does not, upon its face, purport to be' such, and apparently the circuit judge did ■.not so consider it. Again, it is contended by the counsel for relator that the credits of Pratt and the American Wheel Company are unalterably fixed by their admissions, ■and the decree of the circuit court, which it is claimed was .affirmed as to them.

Counsel for both parties seem to have misapprehended the effect of the decree of this Court, as appears from the fact that the aggregate of direct and contingent claims ■unpaid of each creditor is used as a basis for the computation of the percentage of the fund which such creditor should receive. That decree determined:

First. That the direct claim of the creditor, as stated ¿n the mortgage, was separate and distinct from the contingent liability; that it was as though separate mortgages, coincident in time, were given for them, each of which was entitled to its proportionate percentage of the fund.

Second. That such percentage was not affected by a part payment of any fund, unless it should be found to amount to a sum exceeding the balance unpaid of such fund, in which case such excess would be subject to application upon claims not paid in full.

Third. The decree, by affirming that of the circuit court, settled the • aggregate amount of the two classes of claims of each of these litigants. It did not determine the amount of each claim making such aggregate.

Fourth. It directed a distribution, in conformity to these principles, among all of the creditors, and, as stated in the opinion, as this Court could not determine whether the contingent claim of the Fifth National Bank, owing to large payments theretofore made upon it, wquld or would not be more than equaled by the sum apportioned upon such claim, no attempt was made by this Court to distribute the fund, but the case was remanded to the circuit court, to make the distribution in accordance with the decree. This that court attempted, but, becoming convinced that its order was incorrect, vacated it, which it had the power to do, to the end that the direction of this Court should be carried out.

From the order vacated we find that, instead of apportioning a sum upon the direct claim of a creditor, and another sum upon the contingent, thus keeping the amounts applicable to each separate, a percentage of the fund, based upon the aggregate of the two claims, was ordered. This may or may not have, been a harmless departure from the course directed. It would depend on the amounts remaining due upon each. If greater than the .amount properly applicable, it would result in no injury to any one; if less, there would be a balance, which should be subject to division among the unpaid claims, and this is claimed to be so in the case of the Fifth National Bank. It was therefore proper that the order should be .vacated, if the judge was convinced of this fact.

But the order vacating the order of distribution went further, and provided that Pratt and the American Wheel Company might take further proofs upon the subject of their contingent claims. So far as the aggregate amount due each upon both classes of claims is concerned, that has been fixed by the decree. The amount of each claim of the 19th of September is fixed by the mortgage, rendering it unnecessary to take proofs to ascertain that. There is nothing to indicate that any one will be injured by the apportionment of a single percentage to Pratt or the American Wheel Company, based upon the bunching of the two claims; and, if there were such injury, from the nature of things, Pratt and the American Wheel Company would not be the sufferers, but would be benefited. So there was no occasion to take proofs for that purpose. It was important as to the claim of the bank if the facts did not appear in the record.

It goes without saying that the amounts found due to the respective creditors upon their demands by the decree of this Court could not be changed, nor can the case be reopened for a rehearing, by the circuit court, and the order did not authorize any such course. This Court alone, if any, has the power to grant such relief. But the decree of this Court contemplates a distribution which involves the ascertaining of the constituent elements of the respective sums due, which have not yet been determined, and we think the circuit court may take 'steps for such determination, if any be necessary. It seems to us that much of the difficulty has arisen from an apportionment being based upon the amounts found due to the several creditors, whereas it should have been upon the faces of the respective claims as stated in the mortgage. If such apportionment resulted in extinguishing any claim or claifns, the aggregate of such excesses would form a new fund, to be apportioned among the claims remaining unpaid, and this apportionment also should be based on the faces of the claims, and not on amounts remaining unpaid. We have been specific in these directions, to correct what appears to have been a misapprehension of the decree heretofore entered in this Court.

In view of the foregoing, we must deny the writ, with costs.

The other Justices concurred.

       See American Wheel Co. v. Scofield Buggy Co., 89 Mich. 15.

      See High v. Fifth National Bank, 97 Mich. 502.


author: Grant, J.

text:
    William Dunham, Trustee, etc., v. The W. Steele Packing & Provision Company, Grand Rapids Savings Bank, National City Bank of Grand Rapids, T. Stewart White, Fifth National Bank of Grand Rapids, City National Bank of Lansing, and First National Bank of Traverse City.
    Mortgage— Trust — Preferences—Parol evidence — Set-off—Reformation — Bona fide holder — Expense of protecting property — Lien.
    1. In the absence of any ambiguity in a written instrument, it musí be interpreted according to its plain terms, no fraud or mistake being claimed.
    2. Where a trust mortgage is conditioned for the payment to the mortgagee, first, of three notes indorsed by the mortgagee and specifically described, and of any renewals or extensions of said notes, and of any other notes upon which the mortgagee is indorser, and, second, of three notes, amounting to a stated sum, held hy a specified bank, and of a fourth note held by another bank, and of any other liabilities of the mortgagor to the mortgagee, then or thereafter incurred, for the indorsement or otherwise of said mortgagee, the intention to create two classes of creditors, and to prefer those mentioned in the first class, is entirely clear upon the face of the mortgage, and the meaning of the language used cannot be changed by parol evidence.
    8. Where the language used in an instrument is of doubtful meaning, evidence of the surrounding circumstances, and of what was said by the parties interested, is competent to determine its real meaning, but the secret intention of either party cairn not be shown.
    4. The purchaser of a promissory note before due, in good faith, for a full consideration, and in reliance upon the validity of a trust mortgage as it then read, given to secure the payment of said note and of other indebtedness of the mortgagor, with' a preference in favor of said note, cannot be deprived of such priority by the reformation of the mortgage so as to eliminate all preferences therefrom.
    5. Where the mortgagee in a trust mortgage fails to employ and pay a watchman to care for the trust property, which action is necessary -to its protection, and one of the cestuis que trustent performs said duty, it is equitable that he should be repaid the sums so expended, and that he should have a prior lien on the trust property therefor.
    Appeal from Kent. (Adpit, J.) Argued March 7, 1894. Decided April 10, 1894.
    Bill to foreclose a mortgage. Defendants W. Steele Packing & Provision Company and Grand Eapids Savings Bank appeal.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      J. Edward Earle, for complainant.

      George E. Nichols, for defendant W. Steele Packing & Provision Company.

      Taggart, Wolcott é Ganson, for defendant Grand Eapids Savings Bank.

      J. W. Ghamplin, for defendant- City National Bank of Lansing.

      FitzGerald & Barry (Francis A. Stace, of counsel), for defendant White.

      M. H. Walker, for defendant Fifth National Bank of Grand Rapids.

      G. A. Wolf, for defendant First National Bank of Traverse City.
   Grant, J.

The defendant the W. Steele Packing & Provision Company, being indebted in large amounts, and in fact insolvent, on August 28, 1889, executed to the complainant, as trustee, a mortgage upon certain real estate, and this bill is filed to foreclose said mortgage.

The clause of the mortgage over which the principal contention arises is as follows:

Provided always, and these presents are upon this express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part:
“First, Notes of said first party, indorsed by said William Dunham, as follows: Note for $5,000, due August 30, 1889, held by the Fourth National' Bank of Grand Rapids, Mich.; note for $5,000, due September 23, 1889, held by the Northern National Bank of Big Ra.pids, Mich.; note for $3,000, due November 12, 1889, and held by First National Bank of Grand Traverse, Mich., — -and any renewals or extensions of said notes, and any other notes upon which said Wm. Dunham is indorser.
“ Secondly. Three notes of said first party, amounting in all to the sum of $16,000, and held by the, Grand Rapids Savings Bank of Grand Rapids, Mich.; note due October 25, 1889, for $5,000, held by the National City Bank of Grand Rapids, Mich.; and any other liabilities of said first party to said second party, now or hereafter incurred, for the indorsement or otherwise of said second party.”

The note for $5,000 held by the Fourth National Bank of Grand Rapids, and mentioned in the first clause above' quoted, was renewed from time to time, and finally passed into the hands of the defendant the City National Bank of Lansing, which is a Iona fide holder, for a valuable consideration. The other note for $5,000, held by the Northern National Bank of Big Rapids, in like manner passed to the defendant T. Stewart White. The defendant the First National Bank of Traverse City continued to hold and own the $3,000 note.

The principal question is whether the mortgage created two classes of creditors, the first of which was preferred. It is insisted on the part of defendants the W. Steele Packing & Provision Company and the Grand Rapids Savings Bank that it did not, and that all the creditors secured by the mortgage should share equally in the distribution of the amount realized upon the foreclosure sale, the property being insufficient to pay all the debts. The court below held i?that the creditors mentioned in the first class were preferred, and decreed that they be paid first out of the amount realized, and the balance, if any, be distributed among those of the second class. From this decree the packing company &nd the savings bank alone appeal.

The decree is unquestionably correct. The language itself excludes any other conclusion. The intention to prefer is entirely clear upon the face of the instrument. No fraud or mistake is set up or claimed. Therefore, in the absence of any ambiguity, the instrument must be interpreted according to its plain terms.

But, if we look to surrounding circumstances, we find evidence to corroborate this construction. At the same time of the execution of this mortgage, the packing company executed a chattel mortgage to secure the debt of the Fifth National Bank of Grand Rapids, amounting to about $10,000, and also certain other indebtedness. Dun-ham, who was then responsible, had indorsed to large amounts for both Mr. Steele and the packing company, and without any consideration. It was natural that he should desire to first secure Mr. Dunham, and his intention to do so is manifest from the record.

The further claim on the part of the packing company and the savings bank is that the property covered by the chattel mortgage was sufficient security for the debts secured thereby, but that Mr. Dunham, who was also the trustee named in it, has lost, by bad management, a large part thereof, and misappropriated a portion of the funds received from the sale. When this suit was commenced, it was the understanding of all the parties concerned that these creditors were preferred. The answer filed by the savings bank admitted it, and it was not till considerable testimony had been taken that the savings bank filed a petition, and obtained leave to amend its answer, alleging that they were not preferred, and praying that, if the mortgage be held to give such preference, it be reformed so as to give no preference. The defendants appellant introduced evidence which they claim shows that there was no intention on the part of the packing company to prefer any of its creditors in the execution of this mortgage. This testimony comes entirely from the officers of the company and their attorney who drew the mortgages. The attorney drew them in accordance with the instructions received from Mr. Steele, the president of the company, and without any interference or instruction from Mr. Dunham. The testimony of some of these witnesses that they did not intend to make any preferment is incompetent. If the language were of doubtful meaning, evidence of the surrounding circumstances, and what was said by the parties interested, would be competent' to determine its real meaning. But even in that case the secret intention of either party would not be admissible. It is unnecessary, however, for the reason above given, to comment upon this testimony. The language is unmistakable, and 'its meaning cannot be changed by parol evidence. Even if a case were made for reformation of the mortgage, this could not be done against the interest of the City National Bank of Lansing, because it purchased the note before due, in good faith, for a full consideration, and in reliance upon the validity of the mortgage as it read. By no principle of equity, therefore, can its priority be taken away.

Complainant, Dunham, as - indorser, paid the note now held by defendant White after it became due, and subsequently transferred it to White in part payment of an indebtedness due from him to White. It is claimed that Dun-ham mismanaged the trust confided to him under the chattel mortgage, by which the savings bank and the packing company suffered loss, and that White therefore took this mortgage subject to all the equities existing between Dunham and the parties interested in the chattel mortgage; that Dunham should be compelled to an accounting under that trust, and if he mismanaged the affairs of the packing company under that mortgage, by which loss resulted, such loss should be set off against the claim of White. We think it very doubtful if the testimony makes out a case of. mismanagement^ but this we need not determine. The offset claimed did not grow out of any relation between Dunham and White, or between White and the defendants appellant. This note was not secured by the chattel mortgage. Dunham’s right to transfer it is undoubted, and its transfer carried with _ it to the transferee the security of the real-estate mortgage. A set-off growing out of a tort, on another transaction between Dun-ham and his cesluis que trustent under the chattel mortgage, cannot be enforced against White’s claim and lien under the real-estate mortgage.

It appears that $1,207.31 had been paid upon the note held by the First National Bank of Traverse City. This amount was paid by complainant out of the proceeds of the personal property conveyed by the .chattel mortgage. The Fifth National Bank claimed that the Traverse City Bank had no right to retain this money. The court therefore decreed that, out of the proceeds of the sale under the real-estate mortgage, complainant pay into the registry of the court this amount, with interest from the dates when the payments were made; and that said Fifth National Bank, within 30 days, institute proceedings for an accounting with the parties interested in relation to such payments; and that, if such proceedings be not begun within that time, said money be paid to the preferred creditors as their several interests should appear. Such proceedings were instituted within the prescribed time, and are now pending. We are unable to see how the rights of the savings bank are prejudiced by this portion of the decree. The court, under such an accounting, will determine who is entitled to the fund, and decree its payment accordingly. This -action of the court will secure the disposition of that money in accordance -with the terms of the chattel mortgage.

The defendant savings bank paid out certain sums for a watchman to take care of the property after it ceased to do business. It was essential that this should be done, and, if the trustee failed to do it, it was certainly proper for one of the •cestuis que trustent to do it to protect the property, not only for its own interests, but for the interest of all. It is certainly equitable that these sums should be repaid, and that the savings bank should have a prior lien therefor. It will be decreed accordingly.

Except as above modified, the decree will be affirmed, with the costs of this Court. The costs in the court below will be paid out of the fund.

The other Justices concurred.


author: Grant, J. Long, J.

text:
    Anna Bonfoey v. Frank R. Bonfoey and James Bayne.

      Mortgage — Dower.
    1. The inchoate right of dower is a contingent estate, which vests on the death of the husband, and it is entitled to protection as well before as after his death, and no act of the husband alone can prejudice it.
    2. Where a husband, after purchasing land subject to a mortgage, executes a purchase-money mortgage thereon, in which his wife does not join, and then conveys the land by his sole deed subject to both mortgages, the wife will be entitled to dower in the equity of redemption only.

      3. In estimating a widow’s right of dower in land conveyed by her husband alone, subject to a purchase-money mortgage, only so much of the mortgage debt will be taken into account as remained unpaid at the time of such conveyance; citing Newton v. Sly, 15 Mich. 391.
    4. A husband purchased several city lots subject to a mortgage, and secured the unpaid portion of the purchase money by a mortgage on the lots, in which his wife did not join. He then conveyed the lots by his sole deed, subject to both mortgages. The mortgages were foreclosed, and, on the refusal of the complainant to accept from the wife a tender of the amount due on the decree, she filed a petition in the suit to compel the complainant, on such payment being made, to assign to her the decree, and, upon the granting of her petition, she further petitioned the court to amend the decree so as to provide for the sale of the lots subject to her right of dower, which amendment was made, and the owner of the equity of redemption appealed. And it is held that the wife was entitled to dower in the equity of redemption only at the time of the conveyance of the land by her husband; and that, as her right can be protected by a sale of the mortgaged premises in parcels, the decree will be modified so as to provide for the sale of enough of the lots to satisfy the decree, after which the wife will be entitled to dower in the remainder of the lots.
    Appeal from Kent. (Adsit, J.) Submitted on briefs March 9, 1894. Decided April 10, 1894.
    Petition for the amendment of a decree on foreclosure. Defendant Bayne appeals.
    Decree modified and record remanded.
    The facts are stated in the opinion.

      O. O. Smedley (Benn M. Corwin, of counsel), for petitioner.

      Wolcott & Ward, for appellant. •

       For cases bearing upon the question of the right of dower in mortgaged lands, and its admeasurement, see:
      1. Snyder v. Snyder, 6 Mich. 470, holding that where, after the execution of a mortgage by husband and wife upon his land, the land is sold on an execution against the husband, and after the execution title has become absolute it is purchased by the holder of the mortgage, and he conveys the land as an entirety by warranty deed, it is fair to presume that he intended to regard the mortgage as extinguished as an independent security, but which extinguishment being made by himself, and he being, in virtue of his execution title, an assignee of the husband, the dower rights of the wife in the land are not enlarged, and will be admeasured by ascertaining the whole value of the land, and deducting therefrom the amount of the mortgage, and setting off such a portion of the land to the widow’s use as the commissioners consider to be worth one-third of the residue.
      2. Young v. McKee, 13 Mich. 552, 556, holding that the right of dower in land conveyed to a husband, and mortgaged back for purchase money, only attaches to the equity of redemption.
      3. Newton v. Sly, 15 Mich. 391, holding that where a husband conveys land by his sole deed, subject to a partly paid iiurchasemoney mortgage, and his grantees, after paying the remainder of the mortgage debt, convey the land by warranty deed, after which their grantee takes an assignment of the mortgage, the widow’s right of dower in the land is taken subject only to so much of the mortgage as remained unpaid at the time of the conveyance of the land by the husband.
      4. Johnson v. Van Velsor, 43 Mich. 208, holding that where a wife joins with her husband in an absolute deed of land which fie has already mortgaged, her subsequent purchase of the property will not revive her original rights so as to enable her, in resisting the foreclosure of the mortgage, to claim dower rights in the land.
      5. Clapp v. Galloway, 56 Mich. 272, holding that a wife’s right of dower in lands held by her husband under a State land certificate which he has assigned as security for his debt cannot be affected by proceedings to enforce the security if the wife has never disposed of her interest; and the purchase by her of the right to redeem by taking a subsequent assignment of the certificate from her husband tends to strengthen, rather than to destroy, such right.
      6. Burrall v. Bender, 61 Mich. 608, holding:
      a — That where a husband, during the lifetime of his first wifq, disposes of all of his property by will, and after her death remarries, and dies without changing his will or in any way providing for his second wife, her dower rights in his estate are the same is if he had died intestate, and are limited to lands whereof he was seised of an estate of inheritance at any time during the second marriage; and as to any such lands mortgaged before the second marriage, or for purchase money, she is entitled to dower as against all persons except the mortgagees, and those claiming under them, and in such cases, as also where she joined in the mortgage during coverture, she has dower rights in any surplus realized on a foreclosure sale,
      b — That where a husband dies testate, but without making any prevision for a second wife, who survives him, and who joined with him in the execution of a mortgage upon his real estate during coverture, Of which land he dies seised, subject to such incumbrance, the dower rights of the widow are subject to said mortgage, and, in determining the same, the amount owing upon the mortgage at the date of the husband’s death should be deducted from the value of the mortgaged premises, and land set apart to the widow therefrom equal in value to one-third of the residue.

        7. Bowles v. Hoard, 71 Mich. 150, holding that a wife who is entitled to dower under How. Stat. § 6246, which provides that where a divorce is decreed for certain specified misconduct of the husband the wife shall be entitled to dower in- his lands in the same manner as if he were dead, js entitled to dower ip the surplus arising upon the foreclosure sale under a mortgage executed by the husband prior to their marriage. s
      8. Moore v. Smith, 95 Mich. 71, holding that 'the dower and homestead rights of a wife in land mortgaged by her husband before their marriage give her the right to redeem from a statutory foreclosure of the mortgage.

   Grant, J.

In 1891 complainant’s husband purchased 10 lots and part of an eleventh in the city of Grand Bap-ids. The price paid was $2,500, subject to a mortgage of $550. Mr. Bonfoey executed a mortgage to secure part of the purchase price, in which the wife did not join. In May, 1891, Mr. Bonfoey traded the lots in question to ■defendant Bayne for a photograph gallery. Complainant refused to sign the deed to Bayne, and Bayne purchased the property subject to the mortgages, which were then ■owned by an attorney named 'Jamison. Payments had been made by Mr. Bonfoey and his wife, and about $800 remained due at the time of the transaction between Bayne and Mr. Bonfoey. Jamison at that time advised Mr. Bayne that, if Mrs. Bonfoey refused to sign the deed, her dower interest could be cut off by the foreclosure of the mortgages then owned by him. Shortly after the deal, Bonfoey filed a bill in chancery to set the transaction aside on the ground of fraud. He was defeated in this action, and therefore the question of fraud is res judicata. It is evident, however, that Mr. Bayne got the best of the transaction, and was therefore entirely willing to take the deed without the wife’s signature. Mr. Jamison foreclosed the mortgages, and, the day before the sale was to be made under the decree, complainant borrowed money, and tendered Mr. Jamison the amount due upon" his decree. Mr. Jamison refused to take it. She thereupon filed a petition in the suit, offering to pay the amount due, and asking that Mr. Jamison be compelled to assign the decree to her. This was ordered by the court, and the assignment made. ■Complainant thereupon petitioned the court to amend the decree so as to provide for the sale of the lands subject to her right of dower. This was so decreed, and the defendant Bayne appeals.

It is entirely clear from this record that there was an agreement between Mr. Jamison and Mr. Bayne that Mr. Jamison should foreclose the mortgages for the express purpose of cutting off complainant’s right of dower. The inchoate right of dower is a contingent estate, which will become vested on the death of the husband, and is entitled to protection as well before as after it has become vested, and no act of the husband alone can prejudice this right. Denton v. Nanny, 8 Barb. 618; Mills v. Van Voorhies, 20 N. Y. 412; Davis v. Wetherell, 13 Allen, 60; Simar v. Canaday, 53 N. Y. 298; Scrib. Dower, 481. The right of the wife to redeem and protect this interest is conceded by the defendant.

It is claimed by counsel for the complainant that there was a conspiracy between Jamison and Bayne to cut off her right by the foreclosure of the mortgages, that Bayne purchased subject to these mortgages and to her right of dower, and that therefore she is entitled to dower in the entire land. We do not think the transaction was such as to give her more than she before possessed. At the time of the conveyance by her husband she was entitled to dower in the equity of redemption only. Where a husband conveyed land to his sons, subject to a purchase-money mortgage, it was held that, in estimating the widow's right of dower in the land so conveyed, it must be taken subject only to so much of the purchase-money mortgage as remained unpaid at the time of the conveyance by the husband. Newton v. Sly, 15 Mich. 391. It would be inequitable to permit Bayne to deprive complainant of her right of dower in the equity of redemption which she refused to convey. It would be equally inequitable to give her dower in the entire land without contribution. McCabe v. Bellows, 7 Gray, 148. The value of the land at the time was $3,300. The mortgages were about $800. Two thousand five hundred dollars represented, therefore, all in which she had this inchoate right. Equity will direct that course which will best protect the interests of both parties. We think her right can be protected by a sale of the land in parcels. Enough can be sold to satisfy the mortgages, and she will then retain her right in the remainder. The decree will therefore be modified in this respect.

Were the land so situated that it could not be sold in parcels, it would seem reasonable that her dower should be ascertained in the surplus, as was done in Unger v. Leiter, 32 Ohio St. 210, but upon that we express no opinion.

Defendant will recover costs in this Court. The case, will be remanded to the court below, with instructions to proceed to sale in accordance with this opinion.

McGrath, C. J., Montgomery and Hooker, JJ., concurred with Grant, J.

Long, J.

I concur in the result reached .by my Brother Grant, except the question of costs. The complainant should not be compelled to pay costs to the defendant. I think no costs should be awarded either party in this Court.