text:
    DRIER v. GRACEY.
    1. Life Estates — Rents and Income, Title to.
    The owner of a life estate in real property is entitled to the rents and income derived therefrom.
    2. Same — Wills—Rents and Income, Title to.
    Where a husband’s will gave to the widow a life estate in both the real and- personal property, with the power to use from the corpus of the estate, if necessary, for her reasonable care and support, but which privilege was never exercised, held, that the rents and income derived therefrom was her sole property, and on her death belonged to her estate.

      See notes in 6 L. R. A. (N. S.) 1186; 36 L. R. A. (N. S.) 835; 39 L. R. A. (N. S.) 805.

      3. Cancellation of Instruments — Deeds—Incompetency—Undue Influence — Fraud.
    On a bill by plaintiff against the estate of his foster mother to have certain’ conveyances of a farm between the latter and himself set aside on the ground of plaintiff’s incompetency, undue influence and fraud, where by the will of the foster father the widow was devised a life estate in the farm and at her death the title was to vest in plaintiff and an adopted daughter, hut the widow bought the interest of the adopted daughter and sold the farm to plaintiff, later, at his request, purchasing it hack from him, evidence held, insufficient to establish plaintiff’s incompetency, or that he was unduly influenced or defrauded either in the purchase or sale of said farm.
    Appeal from Montcalm; Davis, J.
    Submitted April 3, 1918.
    (Docket No. 19.)
    Decided December 27, 1918.
    Bill by Henry Drier, guardian of Frank Larsen, against James Gracey, administrator de bonis non of the estate of Mathias Larsen, deceased, and others, for a construction of the last will of Mathias Larsen, to set aside certain conveyances, and for an accounting. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Rarden & Rarden, for plaintiff.

      N. O. Griswold (M. V. Cook, of counsel), for defendants.
   Bird, J.

Mathias Larsen was the owner of 120 acres of land in the township of Eureka, Montcalm county, upon which he resided with his wife and two adopted children, Flora and Frank Larsen. In December, 1890, he died testate. The two provisions of his will which are in dispute are as follows:

“I give, devise and bequeath to my beloved wife, Mary Larsen, all my real estate, lands, tenements, and hereditaments, of every kind and nature, wherever the same may be situated, and all my personal estate, goods, chattels, moneys and effects, of every kind and nature, for and during her natural lifetime and until her decease, after the payment of my just debts and expenses of the last sickness and funeral (if any such there be)'. It being my will that my said wife shall and I do hereby give to her the privilege and power of disposing and conveying away any portion of said real or personal estate that may be necessary to be disposed of for her support, maintenance and comfort so long as she shall live provided the increase and rents and profits of the same estate shall not be sufficient for that purpose and also the right to turn off and dispose of such of said personal estate as shall to her seem best on account of age or wear and tear substituting others in the place and stead of the same, or keeping it good by increase, hereby giving to her full power to manage the same according to and dispose of it as in her judgment seems best.
“Secondly: The rest and residue and remainder of my said real and personal estate, goods, chattels and effects after the decease of my said wife I do hereby give, devise and bequeath to Frank Larsen and Flora L. Larsen, adopted children of mine to be divided between them share and share alike.”

The will was admitted to probate and Mary Larsen, his widow, qualified as executrix and took charge of the estate. For two years she rented the farm. After that she and Frank, the adopted boy, worked and managed it. In 1895 the adopted daughter, Flora, having married, was desirous of disposing of her undivided half in the farm subject to her mother’s life estate, so her mother purchased it for $1,000. In 1900 Frank married and brought his wife to the home. It soon became evident, as it usually does, that the house was too small for both families, and as a result the mother offered to purchase Frank’s interest for $1,500, or to sell hers for $1,500, reserving certain timber of the estimated value of $500. Frank elected to, and did, purchase her interest in the farm, giving her a mortgage thereon for $1,500. At the end 'of the second season Frank became dissatisfied and wanted to sell the farm, so the mother purchased it, giving him $900 in cash and canceling the $1,500 mortgage, and as a further consideration permitted him to retain' all of the household goods and personal property on the farm in which she had an interest, amounting in value to over $600. Mary Larsen returned to the farm and operated it until October, 1907, when she sold it on contract to George W. and John F. Nelson, for $4,000. Mary Larsen then purchased a home in the city of Greenville, where she resided until her death, in September, 1912. She died testate, leaving her estate to a brother and to the children of a deceased brother.

With the $900 paid by his mother and $750 which he had accumulated from the avails of the farm, Frank purchased 40 acres nearby, known as the Slattery farm, and moved onto it. In 1904 he traded this 40-acres for the Shearer farm, consisting of 80 acres. In 1907 he sold 40 acres of the Shearer farm and paid his mortgage. In 1911 he traded the remaining 40 to one Cooper for another 40 in the same township. This trade with Cooper Frank soon regretted. It was not an advantageous one, and he was very desirous of getting rid of it. Some time in 1911 Frank was declared mentally incompetent by the probate court, and a guardian was appointed. Steps were taken by the guardian to rescind the trade with Cooper. Litigation followed in which Frank was successful in recovering the 40 acres which he had traded to Cooper. Frank then returned to that farm and still resides there.

Soon after the conclusion of that litigation this bill was filed. The estate of Mathias Larsen was revived, an administrator de bonis non was appointed, and made a party defendant herein. Lars Peter Petersen, executor of the estate of Mary Larsen, was made a party defendant, as well as Anna Christensen, administratrix of the estate of Frederick Christensen. Christensen was a brother of Mary Larsen. She gave to him one-half of her estate, and to the other four defendants, who are children of a deceased brother, the other half.

The bill seeks to have all the assets of the estate of Mary Larsen declared to be assets of the estate of Mathias Larsen, and also prays to have set aside the conveyances between Frank and his mother, on the ground that Frank was not mentally competent to transact such business, and on the further ground that he was defrauded by his mother and Frederick Christensen.

The chancellor found that Frank was mentally incompetent at the dates of the conveyances, that he was unduly influenced to make the last deed by his mother and Christensen, and, therefore, set them aside. The construction which he placed upon the will of Mathias Larsen was that it gave a life estate to Mary Larsen, with the privilege of using from the corpus of the estate, if necessary, for her support, and that the income or accumulations from the life estate, which were unused at her death, belonged to the estate of Mathias Larsen.

The questions which are submitted to this court for its consideration are two:

(1) The construction of clauses 1 and 2 of the will of Mathias Larsen.

(2) Whether the conveyances between Frank and his .mother should be set aside on the ground of Frank’s mental incompetency.

It is conceded that Mary Larsen had no means of her own at the time of her husband’s death. It is also conceded that the funds used by her in purchasing the interest of the children were derived from her life estate. When these purchases were made she was assisted financially by her brother, Frederick Christensen. When she finally sold the place the balance due him was paid from the Nelson contract.

The language of the will is not ambiguous. It very clearly gives Mary Larsen a life estate in both the real and personal property, with the power to use from the corpus of . the estate, if necessary, for her reasonable care and support. This construction is supported by the following authorities: Glover v. Reid, 80 Mich. 228; Jones v. Deming, 91 Mich. 481; Gadd v. Stoner, 113 Mich. 689; In re Moor’s Estate, 163 Mich. 353; Bateman v. Case, 170 Mich. 617.

It appears to be conceded that the personal property was exhausted in paying the debts, so we may dismiss that from our consideration. As owner of a life estate in the real estate she was entitled to the income and rents. These belonged to her to do with as she saw fit. This is the general rule. Braswell v. Morehead, Busbee’s Eq. (45 N. C.) 26 (57 Am. Dec. 587, and note); Millen v. Guerrard, 67 Ga. 284; 17 R. C. L. pp. 628, 629.

In the last authority cited, it is said:

“As a general rule the life tenant is entitled during the continuance of the life estate to the entire income from the property, real or personal, in which he has a life interest, but he has no right to use the corpus. * * *
“The rents received from real estate during the existence of the life estate belong to the life tenant, and it has been held that a bonus paid during the continuance of the life estate for the extension of a lease also belongs to the life tenant as of the time when it was made.”

We perceive no reason why this general rule should not apply to the life estate which was given to Mary Larsen by her husband’s will. The language of the will indicates that the intention of the testator was in accord with this general rule. He gave her a life estate in all of his property with no restrictions as to income. As such legatee she was entitled to the possession of the estate, and had title to whatever income it yielded. If she were the absolute owner of a life estate in the farm she must have been entitled to what it produced. After her husband’s death she remained on the farm, and by her industry and thrift saved nearly enough to purchase the interests of the adopted children, and at her death left property of the value of $2,650. The contention is now made that this sum belongs to the estate of her deceased husband because it is income from her life estate. We cannot approve of this conclusion. The general rule of law does not so decree. The language of the will does not so order, and simple justice does not so demand. Neither are we able to agree with plaintiff’s contention that the situation is ruled by the cases of Hull v. Hull, 122 Mich. 338, and In re Mallary’s Estate, 127 Mich. 119.

In Hull v. Hull, the testator created a trust fund of all of his property and provided that during his widow’s natural life she should have it as needed for her support and comfort, and named trustees to see that the provision was carried out to the letter.

In Re Mallary’s Estate, the testator did substantially the same as was done in Hull v. Hull, except that the widow was made the sole trustee and was not required to give bond.

In the present case Mary Larsen was given a distinct estate for life — a freehold estate. If the estate were bers for life the income was hers. Mathias Larsen made no attempt to control the income from the life estate. He directed that if the income were insufficient to properly care for her she should have the right to sell and use from the corpus of the estate, but this privilege she never exercised. These differences make the cases cited easily distinguishable from the present one.

Our conclusion is that the will gives to Mary Larsen a life estate in the property, both real and personal, of Mathias Larsen, and that the rents and income derived therefrom, during her life belonged to her, was her sole property, and now belong to her estate.

Should the conveyances between Frank and his mother be set aside? Frank Larsen, at the time of the trial, was 51 years of age. He had been a farmer all his life. When a young man his foster father died. He took charge of the farm and managed it, and his foster mother kept the house, and the record shows that he has been reasonably successful as a farmer. All the witnesses agree that he is not bright, that he is peculiar, that he is quick tempered, and when angry is boisterous and says and does foolish things. He married late in life and was, at least before marriage, addicted to the habit of self abuse. It also appears that he was troubled at times with what he called “blue spells” and complained that his head felt bad and was not right.

Several witnesses appeared on behalf of plaintiff. Some of them were neighbors, others were business and professional people of Greenville, with whom he had come in contact, either in a business or ’ social way. Nearly all of them gave it as their opinion that he was not mentally competent to have the charge of his own affairs. Several near neighbors who had known him from childhood expressed the opposite opinion. Some business and professional people with whom he had done business in Greenville, also expressed an opposite opinion. All of the witnesses for the defendants, and some of those who appeared for the plaintiff, admitted that they had never heard his ability to manage his own affairs questioned until his litigation with Cooper. It would be unprofitable to analyze the testimony of each witness, but we may, with some profit, refer to certain impressions which we have received in reading the voluminous record.

(a) While most of plaintiff’s witnesses expressed the opinion that Larsen was not competent to have charge of his affairs, the reasons which they gave for thinking so are not very satisfactory. The record shows without dispute that Frank had bought and sold several farms, had worked and managed them, and marketed the produce, and the only competent proof of specific instances in which he had made bad bargains' was the real estate deal with Cooper and one horse trade.

(b) At the time of the hearing of this case Larsen appeared to be unfriendly toward his guardian. He testified in the case, and this attitude subjected him to a severe cross-examination by his own counsel. The examination was one well calculated to develop his mental weaknesses, if he had any. During his examination he was able to, and did, take care of himself as well as any other witness in the case. His answers indicated that he comprehended the questions, answered the precise question asked without elaboration, and drew some very nice distinctions. Neither his direct nor cross-examination gives any hint that-he was mentally incompetent at the time of the trial. It should be mentioned in this connection that plaintiffs counsel concedes that he was unusually lucid on that occasion.

(c) After trading farms with Cooper, Larsen appears to have regretted it and worried over it to the extent that he could not work. He wanted to trade back but Cooper refused. He induced his uncle to intercede for him but this was of no avail. He consulted with his friends and some one suggested to him that an effective way to get his property back was to have himself declared incompetent .by the probate court. This appealed to him and he set about to have this done. His wife made the application and he solicited witnesses to swear that he was incompetent. Two physicians were asked to examine him. They did so, and made a report that nothing was found indicating that he needed a guardian. They were not called to testify at the hearing. In the suit with Cooper he again solicited witnesses to testify that he was incompetent, as he stated to them, so that he could get his place back. It is not usual for persons who are really suffering from this malady to capitalize it in this manner. It is very unusual for one who is in this unfortunate condition to solicit witnesses to testify to the fact. While these acts on his part are not conclusive of his competency they show a mental grasp and resourcefulness which throw suspicion on the claim that he is mentally incompetent.

(d) We have been influenced to some extent in reaching a conclusion on this question by the testimony of Dr. Johnson, who was called upon to make an examination of Larsen, prior to his being declared incompetent by the probate court, and who did make the examination in company with Dr. Bower. Dr. Johnson testified upon the hearing of this case. His testimony in part follows:

“I think our examination that day covered about an hour’s time; we talked with him a good deal during that period.
“Q. What range of subjects did you talk about?
“A. First I think we went into his history as carefully as we could, relative to where he was born, the history of his family, his elemental training, what school training he had had, we questioned him relative to work he had while in school, the studies he pursued; questioned him relative to various details in history for instance; we asked him a few things’ in mathematics; we questioned the man relative to his habits, in other words took a very close personal history as we could, get it that length of time; tried to draw out the fact that he had some hallucinations, illusions or delusions; we went into his physical condition. I remember we talked to him relative to various matters of judgment, relative to farming; the best time to buy a farm, how he would judge a good farm, the best time to sell crops, the best time to harvest crops, the best time to plant them, various ideas relative to farming. We went into the matter of his physical condition, asked him various questions about that, about sleeping, appetite and other things; his memory, we tried to test out his memory, general condition. I think that about covers the field as near as I can remember.
“We did not that day observe any indications of hallucinations. We observed that he has some peculiarities of speech. We did not examine to ascertain what caused that peculiarity of speech.
“Q. When you got his speech so you understood his talk, or his reply, you say it was sane and all right?
“A. We didn’t find anything wrong with him.”

We conclude that the most that can be claimed for the testimony bearing on the question of mental capacity is that Frank Larsen was a man somewhat below the average intelligence, that he was peculiar in many ways, and that he had lessened his physical and mental vigor to some extent by his unfortunate habit, but we do not think the record as a whole establishes the fact that Larsen was mentally incompetent to have the care and charge of his own affairs. Notwithstanding all the speculations with reference to his capacity, the fact remains that he has been a farmer all of his life, has worked and managed his own farms, made his own deals, and done his own marketing, and did it as well and successfully as it is usually done, and that he is still living on a farm of his own, worth from $1,500 to $1,800, with no debts, and managing it and working it without the aid and judgment of any one but himself. We must conclude, therefore, that the charge of mental incompetency is not sustained.

On the remaining question we find nothing in the record which convinces us that Frank was unduly influenced or defrauded either in the purchase or sale of the old farm. He testified that he concluded he would rather have a smaller farm and be free of debt, and beside he felt his mother should have the home farm. If it can be said that Frank did not receive full value for the farm when he sold it to his mother, we think it is equally true that she did not receive full value when she sold it to him. When he left the farm he had $900 in money paid by his mother, $750 which he had made during the time .that he owned it, and all the personal property including the household, goods and farm machinery.

We are of the opinion that the decree should be reversed- and plaintiff’s bill dismissed, with costs of both courts to the appealing defendants to be taxed against the plaintiff personally.

In granting costs against the guardian personally we do so feeling that he did not institute and carry on the litigation with the good faith which is demanded of an official in a trust relation. Frank Larsen testified that he was opposed to the litigation and did not want it carried on. The guardian testified that Frank. was not consulted before the suit was brought, that he did not approve of it, that he became angry because it was instituted and that it was carried on against his protest. This testimony, considered in connection with the merits of the controversy, has led us to the conclusion already announced.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Bird, J.

Ostrander, C. J.

(dissenting). I concur in reversing the decree of the court below but not in the conclusion that the guardian, plaintiff, should personally pay the costs. The court below granted the relief prayed for. So far as the probate records are concerned, they show a regular appointment of the plaintiff as guardian. The fact that the.guardian of an incompetent is not governed by the advice of his ward does not, in my opinion, furnish a reason for subjecting him to the payment of the costs of unsuccessful litigation instituted by him in his ward’s behalf. I find no evidence of the bad faith of the guardian.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    MISNER v. STANGE.
    1. Appeal and Error — Irregularity — Motion to Dismiss — Waiver.
    In the absence of a motion to dismiss an appeal in the Supreme Court on the ground of irregularity, the question will be regarded as having been waived.
    2. Irens — Notice to Purchaser — Agreement to Pay.

      Held, that the purchaser of a farm knew of certain liens and agreed to assume and pay them as part of the purchase price.
    3. Same — Concurrent Liens — Attorney's Fees.
    Where plaintiff in divorce proceedings was granted a decree including alimony and attorney’s fees, which were made a lien upon defendant’s farm, already incumbered by a mortgage, the lien of defendant’s attorney for his fees, held, not concurrent with the lien of plaintiff’s attorney, since, if the farm should sell for only enough to pay the mortgage and the alimony, the effect would be to compel plaintiff to pay a portion of defendant’s attorney fees.
    Cross-appeals from Ottawa; Cross, J.
    Submitted January 18, 1918.
    (Docket No. 145.)
    Decided December 27, 1918.
    Bill by Charles E. Misner against Claus H. Stange, Walter I. Lillie, and Anna Wegner for the foreclosure of certain liens. Defendants Lillie and Wegner filed separate cross-bills asking affirmative relief. From the decree rendered, defendants Lillie and Wegner appeal.
    Modified, and affirmed.

      Charles E. Misner, in pro. per.

      Leo C. Lillie, for defendant Lillie;

      Soule & Soule, for defendant Wegner.
   Bird, J.

This controversy with its variety of angles is the outgrowth of a desire upon the part of Claus H. Stange to take unto himself many wives and to their persistency in employing counsel to fight for their freedom and alimony.

In the year 1909 Mr. Stange was the owner of an 80-acre farm in Ottawa county, upon which he resided with his wife. In October of that year he placed an incumbrance thereon of $500 running to the Grand Haven State Bank. Some time after the execution of the mortgage Mrs. Stange died, and later Stange married Albina Roetter. She lived with him only a few months when she filed a bill for divorce on the ground of extreme cruelty, and at the same time commenced a suit in replevin to recover her household goods. ^ In these cases the plaintiff was represented by Walter I. Lillie and the defendant by Charles E. Misner. The divorce proceedings resulted in May, 1913, in a decree for plaintiff and an allowance of alimony and costs amounting to $518.81. This sum was made a lien on the north half of said 80 acres which included the homestead, subject to the bank mortgage.

Stange failed to pay the alimony as directed and Mr. Lillie began proceedings to foreclose the lien. In this suit Stange was made a party defendant and was represented by Mr. Misner. Pending these proceedings Misner purchased the decree for alimony from Mrs. Stange and took an assignment thereof to himself. When this came to the attention of Mr. Lillie he insisted the suit should not abate on account of the assignment to Misner but should proceed for the purpose of enforcing his lien for attorney fees and disbursements which were included in the decree. The court held that the assignment, as against Lillie, was void, and that Lillie might proceed to foreclose the lien to the extent of his attorney fees and disbursements which were included therein, and authorized a sale to be made of the premises, by a circuit court commissioner, at any time after September 1, 1914. In pursuance of this order notice was given of the sale. A few days prior to the sale Misner filed a motion to amend the decree of sale and secured an order from the court adjourning the sale. Some misunderstanding arose over the service of the order of adjournment and the sale proceeded and the premises were bid off by Leo Lillie for the amount of the lien plus the costs and expenses of sale, amounting to $213.96. Subsequently Misner’s motion was heard and the decree in the foreclosure case was amended giving Misner the right to foreclose the lien for alimony to the extent of $260, the amount which he had paid for the assignment. Mr. Leo Lillie then, on behalf of Mr. Stange, tendered to Mr. Misner the sum of $274.09, which was supposed to cover what Misner paid for the decree, together with the interest thereon. Mr. Misner refused to accept this, claiming it was insufficient. Following this Mr. Leo Lillie, representing Mr. Stange, filed a bill in chancery to compel a cancellation of the decree for alimony and a discharge of the lien, and also claimed the statutory penalty of $100 for Misner’s refusal to discharge the lien when tendered the amount due thereon. Misner answered the bill and claimed the benefit of a cross-bill. This suit resulted in giving Misner a lien of $260, the amount which he had paid for the alimony and an additional sum of $238.10 for professional services growing out of the divorce proceeding, and both were made a lien upon the 80 acres.

Before the complications attending Stange’s second marriage and divorce had been ironed out he married again, this time Marie DeRege. He soon quarreled with her and she employed Misner to file a bill for divorce. This was subsequently granted and she was awarded $150 alimony and the same was made a lien upon the 80 acres in question. This decree was subsequently assigned to her counsel, Misner, and later he assigned it to Walter I. Lillie. About this time a levy was made upon the 80 acres to enforce the collection of a judgment for $264.75 and interest, which had been rendered against Stange and in favor of one Lexow some time in 1911.

Stange, having gotten rid of wife number three, advertised in a Chicago newspaper for a housekeeper. This was answered by Anna Wegner, who came onto the scene and soon thereafter arrangements were made by which she and Stange were to be married. This was prevented, however, by the order of the court in the decree of divorce granted to Marie DeRege Stange, prohibiting the re-marriage of Stange within a year from the date of .the decree. Before the year was up Anna Wegner concluded that she would not marry Stange but did conclude to buy his farm. She was possessed of some means and during the time she kept Stange’s house she advanced money to the extent of $1,200, as she claims, to take care of certain indebtedness of Stange’s. In consideration of this and of her labor a conveyance of the farm was made to her by Stange subject to the foregoing liens. At this stage of affairs it looked as though the liens would be paid and the numerous lawsuits disposed of, but other attorneys became interested in the' litigation and the negotiations came to an end without anything being accomplished by way of compromise.

The prospect for peace having failed, Leo Lillie served the interested parties with notice to .show cause before the court why the sale to him of the north 40 by the circuit court commissioner should not be con-_ firmed. In response thereto much cause was shown’ and the chancellor was of the opinion that the sale should not be confirmed. As matters were becoming more complicated daily and the number of suits increasing, the chancellor suggested the present proceeding so that all parties would be before the court, in which event their respective claims could be passed upon and determined. After a review of the proceedings herein referred to, and other suits and assignments not herein mentioned, the chancellor reached the conclusion that the best interests of all would be better conserved by selling the farm as one parcel for the purpose of satisfying the liens against it, and that when sold the proceeds should be disposed of in the following order:

1. The costs of the sale including the clerk and sheriff’s fees in this case.
2. To Charles E. Misner, assignee of the mortgage to the Grand Haven State Bank, the amount of said mortgage and interest thereon.
3. To Walter I. Lillie and Charles E. Misner, their concurrent liens, pro rata, if necessary, and the interest thereon. The lien of Walter I. Lillie, being the one awarded him in the case of Albina Roetter v.. Claus H. Stange, and the lien of Charles E. Misner being the one awarded to him in the case of Claus H. Stange v. Charles E. Misner.
4. To Walter I. Lillie, as assignee, the lien awarded in the case of Marie DeRege Stange v. Claus H. Stange and interest thereon.
5. The Lexow judgment and Interest.
6. The surplus to be paid to Anna Wegner.

From this decree Walter I. Lillie and Anna Wegner have appealed. The pleadings in this case as well as the briefs in this court are filled with charges and countercharges of bad faith, fraud, robbery and unprofessional conduct. Especially is this true of the brief of counsel for Mrs. Wegner. We shall not attempt to discuss these charges further than to say that in our opinion they are not sustained by the record. After draining off the bad blood which has been engendered by this litigation from its inception, the residuum presents the following questions:

Some claim is made that the appeal of Walter 'I. Lillie was not taken in season and, therefore, is irregular. The record shows that the “case made” by Mr. Lillie was settled by the trial court and his briefs are filed in this court. In view of the fact that no motion has been made by counsel in this court to dismiss the appeal, the irregularity, if one exists, must be regarded as having been waived by counsel.

Anna Wegner complains: (a) Because of the allowance of Walter I. Lillie’s lien for professional services in the divorce case of Albina Stange v. Claus Stange. (5) Because of the allowance of the DeRege lien for alimony, (c) Because of the allowance of the Lexow judgment. These liens were owned by Walter I. Lillie and the judgment was represented by him as attorney. Without entering into a discussion of the charges made in connection with these matters we will content ourselves by saying we think the liens are valid. They were made in proceedings in which the court had jurisdiction and the right to declare them, and no party in interest has appealed therefrom. There is no claim that the Lexow judgment is not valid nor is there any claim that it has been paid. We are satisfied from the record that Mrs. Wegner knew of these several liens and also of the judgment, and that she agreed to assume and pay them as a part of the purchase price of the farm.

Mr. Lillie complains because Misner’s claim for attorney fees was secured by a concurrent lien with his in the divorce case. Mr. Lillie appeared for plaintiff. She was successful and was granted alimony in the sum Of $518.81. This sum included attorney fees and disbursements of Mr. Lillie amounting to $141.26. We are of the opinion that Mr. Misner’s claim for $260, the amount he paid Mrs. Stange for an assignment of the decree, and the amount of Mr. Lillie’s claim for services and disbursements should be made concurrent liens because both items are represented by the decree for alimony of $518.81. But'we do not think that Misner’s attorney fees in that case should be secured by a concurrent lien with the amount granted as alimony, or with any of the items which made up that alimony, for the reason that' should the farm sell for only enough to pay the mortgage indebtedness and the decree for alimony, the decree in this case, as it now stands, would have the effect of reducing the decree for alimony and compelling plaintiff in the divorce case to pay a portion of defendant’s attorney fees.

The decree may be modified in this respect and affirmed. Defendant Lillie will recover his costs in this case, the same to be taxed against plaintiff Misner and defendant Wegner.

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


author: Steere, J.

text:
    McCULLEY v. RIVERS.
    1. Brokers — Principal and Agent — Good Faith — Fraud.
    It is the duty of an agent or-broker to act towards his principal in entire good faith, and he is bound to disclose to the principal all facts within his knowledge which might be material to the matter in which he is employed.
    2. Same — Principal and Agent — Attorney and Client.
    The fact that the broker dealt with his principal through' an attorney did not excuse the broker from his duty to his principal; nor would lack of diligence on the part of the attorney to verify his representations or discover imposition or fraudulent conduct of the broker, whether active or passive, excuse the latter.

      3. Same — Double Agency.
    A broker may, with knowledge and consent of buyer and seller, lawfully act as agent for both. '
    4. Same — Land Contracts — Undisclosed Double Agency — Voidable Contracts.
    Where a broker represented both buyer and seller to the • disadvantage of the latter, in the sale of real estate, without disclosing his double agency to the seller, the contract was voidable at the option of the latter.
    5. Same — Voidable Contracts — Fraud.
    It is not necessary for a party seeking to avoid a contract on the ground of undisclosed double agency to show that any improper advantage has been gained over him; he may repudiate or affirm the contract irrespective of any proof of actual fraud.
    Appeal from Wayne; Chester, J., presiding.
    Submitted April 2, 1918.
    (Docket No. 8.)
    Decided December 27, 1918.
    Bill by Irving G. McCulley against Addie Rivers for the specific performance of a land contract. Defendant filed a cross-bill to rescind the contract on the. ground of fraud. From a decree for defendant, plaintiff appeals.
    Affirmed.

      Stellwagen & MaoKay, for plaintiff.

      Ormond F. Hunt, for defendant.
   Steere, J.

Plaintiff’s bill of complaint was filed to enforce specific performance of a land contract dated January 14, 1915, in which defendant agreed to sell and convey to him a parcel of land in the city of Detroit known as No. 48 Adams avenue east, for the sum of $15,000, payable $100 down and the balance upon delivery of the deed with abstract of title on or before February 15, 1915, or as soon thereafter as conveyance could be perfected. The instrument is a short and plain land contract, the only variation from standard form being a provision that:

“The vendor agrees that Walter C. Woolley is the broker who has brought about this sale, and agrees to pay said broker his commission of four hundred and fifty ($450) dollars.”

Signed by the contracting parties, its execution is witnessed by W. C. Woolley and C. H. Gleason, who were the active representatives participating in the transaction.

Defendant filed an answer of denial, with cross-bill alleging that, through the connivance of Woolley and plaintiff, advantage was taken of her nonresidence and ignorance of real estate values in Detroit to fraudulently induce her by false representations as to the value of said property to sign a contract to sell the same for less than half its then actual market value; but that upon learning soon thereafter of the concealment and deception she promptly disaffirmed and repudiated the contract, giving notice thereof, on March 3, 1915, to plaintiff and his agent in the transaction, tendering back to both of them the $100 she had received, which they refused to accept but is still kept good by offer to pay the same into court, praying for dismissal of plaintiff’s bill under her answer and cancellation of the contract as affirmative relief under her cross-bill.

Plaintiff answered her cross-bill and the case was thereafter heard before the circuit court of Wayne county in chancery on pleadings and proofs taken in open court, resulting in a decree denying specific performance and granting defendant the affirmative relief asked in her cross-bill.

Defendant became owner of this property under the will of Mrs. Helen Smith, a cousin of her mother, who died in Detroit on September 14, 1911. W. C. Woolley, who was in the real estate business in Detroit and had done work in that line for Mrs. Smith during her lifetime, was named as executor of her will. Upon the same being presented for probate a notice of contest involving a codicil of the will was filed by a party in interest named Jennie Summers and the proceeding certified to the circuit court of Wayne county, where the case was pending for some time with a preliminary motion, preparations for trial and negotiations for settlement, which ultimately resulted in an adjustment of the differences out of which the contest arose and withdrawal of opposition, when the case was certified back to the probate court where the will was admitted to probate, in the fall of 1913, and Woolley as executor proceeded with administration of the estate.

The case yet lingered in the probate court when the contract in question was executed in 1915. Defendant had engaged C. H. Gleason, an attorney of Grand Rapids, to look after her interests in the estate, and while neither she, nor he as her attorney, was directly connected with the will contest, he went to Detroit in relation to the matter several times as her representative and learned in a general way the status of the estate, conferring with Woolley and the attorneys in the contest and helping as he could in the efforts to effect a settlement of the delaying litigation in order that defendant might secure possession of her share of the estate as soon as possible. He consulted and corresponded with Woolley from time to time, who the record indicates was active in the will contest and familiar with the affairs and assets of the estate, including this property which he had collected the rents upon and looked after for Mrs. Smith in her lifetime, continuing to do so for the estate after her death.

Defendant was not a business woman and knew nothing of real estate transactions or values in Detroit. She learned that Woolley was executor of the estate and that there was a will contest, but her knowledge of the progress of the probate proceedings and value of the property left her was from or through Gleason who, as he testified, relied chiefly upon Woolley for information relative to the situation and assets of the estate, which he communicated to defendant as it came to him, including Woolley’s proposals to sell this property for her and representations as to its value.

During the time this estate was in the courts and for years before, both plaintiff and Woolley were connected with or employees of a real estate activity in Detroit known as the Hannan Real Estate Exchange or Agency. Plaintiff testified that Woolley “was a broker in the Hannan Real Estate Agency,” having been “a faithful employee of Mr. Hannan’s” for many years, and that he (plaintiff) had been for several years “general manager of the apartment hotels operating for the Hannan Real Estate Exchange”; that Woolley, who he knew was executor of the Smith estate, twice proposed to him that he buy this property, stating the second time that he could sell it to him for $15,000 and plaintiff agreed to take it, stating, “I would not have bought this property had it not adjoined property in which my associate, Mr. Hannan, was interested.” On cross-examination he further said:

“It was not necessarily essential that Mr. Hannan should get this lot to round out his property, but it would have been a good thing, inasmuch as Mr. Han-nan and I had thought of building a hotel. * * * I had that in mind when I swore in the bill it was of peculiar value to me. There is a question of money involved, although, to a certain extent, it has a special value because Mr. Hannan owns the property all around it. I was associated with Mr. Hannan in this transaction, but there was nothing said to him about this property until. after I completed the deal with Woolley. * * * I have lost nothing through having the abstract made, I am just out the $100 deposit money.”

When Gleason visited Detroit in defendant’s interest he examined with Woolley the appraisal in the probate proceedings and the tax assessor’s valuation of this property and testified that Woolley, who he learned was in the real estate business and connected with the Hannan Exchange, told him the appraisal of $13,400 was above the actual value, the property being worth really about $10,000, and said he would like to act as their agent, — would look after it and when they got ready to sell he would get all it was worth for them as he knew real estate values in Detroit; that he believed Woolley’s statements and assurances and did not otherwise seek to ascertain values, saying:

“I thought he was looking for our interest and, as administrator looking for the interests of all the beneficiaries in the will; and especially ours, because he had asked, said, he thought he could find a purchaser for the property, and he could sell it for all it was worth. * * * He continued collecting rents during 1912 and 1913 and up until about July, 1915.”

With their relations thus established, a noticeable feature of the events leading up to the contract in controversy is that the offers and activities looking to sale of this property, which was in Woolley’s hands as executor and under his control as an asset of an estate in process of probation, emanated from him; and in his communications with plaintiff, to or through her attorney in Grand Rapids, he not only depreciated its value below the probate appraisal and assessed valuation, but, as Gleason testifies, never at any time advised them of activity or increase in value of real estate in Detroit which the testimony shows was taking place during the time this property was in his hands, and to a marked degree in the vicinity of Grand Circus Park near which it is located. A petition was filed by him, as executor, in the probate court on February 6, 1914, asking for allowance of a special account for attorney fees in connection with the will contest, etc. The account began with drawing a petition for probate of the will, for appointment of a special administrator and other preliminaries, without date, followed by many dated items the first of which, dated September 1, 1911, is for “conference' between your petitioner” and the attorneys. In apparent explanation and justification of the account this petition states amongst other things:

“that the real estate in the city of Detroit is now of greater value than $71,000 [the probate appraisal], said real estate having during the past two years considerably increased in value, part of the same being situated at No. 49-51 Adams avenue east, * * * said land being situated in the district where values have largely increased of late; that in your petitioner’s opinion, the present value of said real estate is approximately $100,000.” * * *

This account was allowed by the probate court as filed.

It is not shown that defendant or her attorney, both living in Grand Rapids, had manifested or entertained any intent or desire to sell this property while proceedings involving it were pending in the probate court, except as Woolley agitated .the subject from Detroit and made proposals, mostly by correspondence, through attorneys of the estate or his own letters. His first prospective purchaser was Mr. Han-nan and the first proposition was in a postscript to a letter from attorneys who represented the estate to Gleason, dated April 13, 1914, as follows:

“P. S. — Mr. Woolley says that Mr. W. W. Hannan will pay $10,000 for No. 48 Adams avenue east (stating terms of payment) ; would Mrs. Rivers care to entertain this proposition?”

To this Gleason replied he would send the letter to her, but in view of the appraisal he would not advise her to take less than $15,000, a proposition he thought she might consider. On May 15, 1914, the attorneys again wrote Gleason relative to certain matters touching the estate, stating in closing that Mr. Woolley wanted to know at what price defendant would sell the property, and concluding, “he says that Mr. Han-nan would pay $500 or more down and the balance in cash as soon as .the estate is closed.” Gleason replied that she was undecided, but he was inclined to advise her to sell for $15,000, and saying: “Let me know what you think it is worth and what it ought to sell for. The executor has had charge of it so long he ought to be a good judge of the present value.” Counsel for the estate replied to this letter on June 5, 1914, saying in reference to this inquiry: “I will further take up with Mr. Woolley the selling value of No. 48 Adams avenue east and write you in a few days,” followed by a reply to other inquiries in which he was informed that defendant’s share of the cost of administration, including her proportion of the Summers’ settlement, amounting to $1,098.40, would more than absorb anything coming to her from rent of the property. It does not appear that counsel for the estate communicated further with Gleason as to the sale, or the “present selling value” of the property, but the executor thereafter communicated direct with Gleason, at one time visiting him in Grand Rapids to get defendant’s price for Hannan as a prospective purchaser, at which time he stated the property was not worth more than ten or twelve thousand dollars. Of that interview Gleason testified:

“I replied that Mrs. Rivers said she wanted ($15,-000) fifteen thousand dollars, that price was put on it because both I and Mrs. Rivers wanted that much out of it and because it was a little more than Mr. Woolley appraised it. I got no information other than through Mr. Woolley up to that time, nor had I investigated myself other than I have related with Mr. Woolley. In fixing the sale price I relied upon what Mr. Woolley told me.”

On the following day, July 24, Woolley wrote Gleason from Detroit referring to their conversation of the previous day and said:

“I neglected taking up my end of the transaction. That is this — I am acting in the capacity of broker, and in case a deal should be made for Miss Rivers’ property I would expect the usual board rate of commission to be paid me for consummating the sale. The board rate of commission is three per cent, on improved property.”

To this Gleason replied in part:

“I am satisfied Mrs. Rivers would wish $15,000 net for the property, so you better add $500 to the selling price and get your commission in that way, and at the same time leave $50 for my trouble.”

Woolley replied rejecting “any such terms,” and saying:

“If Mrs. Rivers, or you representing Mrs. Rivers, would like me to sell it, I can do it at the board rate here — the same as any other broker would do, on a three per cent, commission and get,you what the property is worth and no more — and in' doing this I would not divide my commission with any one.”

In reply Gleason deprecated any implied sinister reflection on his proposal, explaining its intendment as he viewed it and stating Mrs. Rivers’ selling price up to August 1st was $15,000 net. Gleason testified that Woolley subsequently inquired by telephone if defendant would take $12,000 for the property and later $12,500, which were refused. After this there appears to have been certain communications between tném, the details of which are not made clear, resulting in something of an adjustment of previous views as to commissions and prices, for Woolley sent a letter to Gleason on January 14, 1915, inclosing $100 and this contract, prepared in duplicate for defendant’s execution, by which the broker’s commission was taken out of her previous net price. Of this Woolley stated in his letter:

“I have filled in this contract. The commission as stated over the ’phone, with understanding you are to have half of it, I did not fill in because for fear it might get into hands that should not know this. It is between you and me and you can take my word for it that you shall have one-half.”

In returning the signed contract to Woolley her attorney stated, “Your letter as to matter of commission is sufficient.” Correspondence followed as to the kind of abstract to be furnished and its cost, after which the attorneys to whom the abstract was submitted raised certain technical objections, which were discussed in correspondence, and during the delay-Gleason received information, as he testified, “that the price we had agreed to sell this property for was about half its value,” and he then went over to Detroit to investigate. Shortly thereafter, within 60 days from the date of the contract, and before notified in writing by Woolley that “we are now ready to accept deed and title” of the property, he, with defendant’s authority, served notice of rescission of the contract and tendered back the $100 she had received.

Upon the market value of the property when this contract was signed, defendant called seven witnesses who qualified to a greater or less degree as experts on real estate values in Detroit, and testified to familiar knowledge of sales and prices in that locality. Two of plaintiff’s witnesses testified upon the subject. As to that issue of fact we find no occasion to disagree with the finding of the trial court that the weight of evidence fairly shows “the property in question at the time this contract was made was worth from twenty-two to twenty-five thousand dollars, which defendants did not know. * * *”

Woolley unfortunately died before this case was heard and it is earnestly urged that Gleason’s testimony as to statements made to him- by Woolley is inadmissible; but eliminating them from consideration the conclusion is unavoidable from the undisputed facts and written evidence that with his shown 18 years’ experience in the real estate business in Detroit, handling this property for years as agent, executor and broker, he well knew its actual market value and future prospects of enhancement. His sworn report to the probate court in February, 1914, of which defendant and her attorney were ignorant, indicates his knowledge and views. He at that time estimated approximately a 40% increase in value over the probate ' appraisal of the East Adams avenue property belonging to .the estate, which he truthfully states is located “in a district where values have largely increased of late.” 48 Adams avenue east lies closest to Grand Circus Park, near to which experts testify to greatest appreciation in values. He not only refrained from imparting this information to defendant and her attorney, but in his communications with them asserted the value and endeavored to secure a price below the appraisal.

In reviewing this contention it cannot be overlooked that Woolley was, during these events, executor of the estate, in charge of this property as one of its assets, collecting the rents from the beginning until it was sold by him as agent and broker of defendant, as shown by his written statement. As executor of the estate and custodian of its assets during probation he held trust relations with defendant demanding utmost good faith. Parks v. Brooks, 188 Mich. 657.

“The executors or administrators occupy a position of technical trust. * * * They are not absolutely prohibited from dealing with legatees or beneficiaries in respect to the interest of the latter in the estate. But if they do they must meet and overcome the presumption of fraud which the law raises against them. That is, they must show the entire fairness of the transaction, and will not be allowed to retain any advantage they may have gained if there is evidence of any misrepresentation, concealment or deceit, or evidence of any advantage taken of inexperience, ignorance or trustfulness of the other party.” 1 Black on Rescission and Cancellation, § 48.

In his capacity as agent or broker the rule is well settled that it was his duty to act towards defendant in entire good faith and he was— '

“bound to disclose to his principal all facts within his knowledge which are or may be material to the matter in which he is employed, or which might influence the principal in his action; * * * and the principle is applicable wherever the broker has an interest of any kind in the transaction antagonistic to that of his employer or where he is so situated, as to be subject to temptation to act adversely to his employer.” Veasey v. Carson, 177 Mass. 117 (53 L. R. A. 241, 58 N. E. 177).
“Loyalty to his principal’s interests also requires that an agent should make known to his principal every material fact concerning the subject-matter of his agency that comes to his knowledge or is in his memory in the course of his agency.” 31 Cyc. p. 1450, and cases cited.

The contention that defendant was represented by her attorney who in effect fixed the price and was presumed to protect her interests does not affect the controlling question here. He as attorney for her was not dealing at arm’s length with her broker any more than she would have been. The fact that the broker dealt with her through an attorney presumably more competent than she would be did not excuse the broker from his duty to his principal, nor would lack of diligence on the part of her attorney to verify his representations or discover imposition or fraudulent conduct of the broker, whether active or passive, excuse the latter. Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092).

Gleason did know that Woolley was trying to sell this property to or purchase it for Hannan, by whom he was employed or with whom he was associated,, at a price which was refused. His role there was a difficult one, but with knowledge and consent of buyer and seller he could lawfully be agent for both. Those efforts failed. That defendant had no knowledge of a double agency at the time of the contract is well established. Neither Gleason or defendant knew that Woolley was in any sense agent for McCulley when he produced him as a purchaser, nor of any employment or interests in common between them, or that they were both connected with the Hannan Exchange in familiar association, having desk room in the same suite of offices.

It is denied by plaintiff that Woolley was his agent in thé transaction in any sense beyond looking after the conveyancing to him in closing the deal, as is customary for brokers to do for purchasers. In plaintiff’s answer to defendant’s cross-bill he—

“admits on information' and belief that it was agreed between said defendant, through her attorney, and said Woolley representing complainant that when complainant was ready for a deed he would cause the same to be prepared and sent to defendant for execution. * * * He denies that said Woolley attempted to purchase said property while acting as executor of the estate mentioned in said answer by way of cross-bill or as agent for the defendant, but says that he expressly informed the attorney for said defendant that he was in no way representing said estate or said defendant.
“He denies that said property is worth more than fifteen thousand ($15,000) dollars, but says that fifteen thousand ($15,000) dollars is the full value Of the same and all it is worth. He further shows on information and belief that said defendant was not led to believe and also could not have believed that said Woolley was acting for her in selling said property in any way.”

Asked about this on cross-examination, although asserting he dealt with him as the agent of defendant, he .replied, “Yes, Mr. Woolley represented me because there was nobody else to represent me.” While-expressing the opinion that he agreed to pay all the property was worth, he said, “I am no expert on real estate values, however”; he also stated during his examination, “Woolley was the only person I ever consulted about this proposition.”

The unquestionably admissible, and for the most part written and undisputed, evidence in this case naturally adjusts itself to, and we think conclusively shows, a double agency in which the agent without the full knowledge or consent of the seller, his primary principal, also represented the buyer to the former’s disadvantage. A contract so negotiated by the agent is voidable at the option of the seller, or principal by whom the agent was originally employed. “A broker cannot act as the agent of both parties where their interests are conflicting.” 4 Am. & Eng. Enc. Law (2d Ed.), p. 966. Vide, also, 1 Am. & Eng. Enc. Law (2d Ed.), p. 1073, and 31 Cyc. p. 1572. In Greenwood v. Spring, 54 Barb. (N. Y.) 375, involving a double agency of this type, the court said that where application is made within reasonable time—

“It is not necessary for a party seeking to avoid a contract on this ground (undisclosed double agency) to show that any improper advantage has been gained over him; he may repudiate or affirm the contract irrespective of any proof of actual fraud.”

The general rule was early recognized in this State. In Moore v. Mandlebaum, 8 Mich. 442, it is said of an agent for the seller:

“In that confidential relation he was bound to the utmost good faith, and had no right, while professing to act in that capacity, to make himself the agent of other parties for the purchase of the lands he was authorized by plaintiff to sell; nor to take advantage of the confidence his position inspired to obtain the title for himself. Nor could he make a valid purchase from his principal, while that confidential relation existed, without fully and fairly disclosing to his principal * * * all the facts and circumstances within his knowledge in any way calculated to enable the principal to judge of the propriety of such sale.”

The contract was voidable at the option of the seller.

The decree of the trial court is affirmed, with costs to. defendant.

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


text:
    MCDONALD v. HALL.
    1. Conspiracy — Evidence—Concert oe Action.
    In an action for conspiracy and malicious arrest, testimony concerning the doings and sayings of certain participants which, separately considered, might seem objectionable, on the whole record is made admissible by inferential proof of concert of action in a common purpose; if in the end concert of action is apparent, such testimony is admissible.
    2. Same.
    Every person entering into a conspiracy already formed is deemed to be a party to all acts done in furtherance of the common design; and acts and declarations of co-conspirators done at different times and by different individuals are admissible in evidence against all, since whatever is said or done by any one of the number in furtherance of the common design, becomes a part of the res gestes, and is the act or saying of all.

      3. Trial — Pleading—Issue.
    Where a charge in the declaration that one of the defendants debauched the infant daughter of plaintiff was stated by way of inducement to the principal subject of the count, which alleged a “conspiracy of all the defendants to wrong the plaintiff by falsely charging him” with compounding a felony, a case of debauchery was not in issue, and it was reversible error for plaintiff’s counsel, throughout the trial, against objections of defendants’ counsel, to persistently inject the issue of the debauchery, although the question of debauchery was not submitted to the jury as a ground of recovery.
    4. Same — Argument oe Counsel.
    In such action for conspiracy, it was reversible error for plaintiff’s counsel, in his closing argument to the jury, to appeal to the passions and prejudices of the jurors on the subject of the debauchery of plaintiff’s infant daughter, which was not in issue in the case.
    Error to Shiawassee; Searl, J., presiding.
    Submitted April 5, 1918.
    (Docket No. 35.)
    Decided December 27, 1918.
    Case by Hugh A. McDonald against Louis C. Hall, Sr., and others for conspiracy- and malicious arrest. Judgment for plaintiff against defendant Hall, Sr., who brings error.
    Reversed.

      John T. McCurdy (Edwin H. Lyon, of counsel), for appellant.

      Albert L. Chandler and James H. Pound, for appellee.
   Steere, J.

This case was formerly here on certiorari to an order of the trial court overruling defendants’ demurrer to plaintiff’s declaration, which was sustained, 193 Mich. 50. That opinion incidentally discloses the nature of this litigation and in discussing certain peculiarities of the declaration is somewhat premonitory of the difficulties and differences which developed under it upon trial of the case. At that early stage of the proceedings the court noted “there was much controversy and disagreement as to the number of counts in the declaration, which is a very lengthy document, covering about 30 pages of the printed record.”

Although it was possible to discover by careful analysis of the “lengthy document” and point out what could be recognized as four separate counts, the “much controversy and disagreement” over that pleading has continued unabated. The four counts as this court found were, first, that the portion of the declaration “charging all of the defendants with an assault and battery upon the person of G. Irene McDonald, the infant daughter of plaintiff, must be held to constitute one count.” A charge that Louis C. Hall, Jr., debauched the infant daughter of plaintiff was held to be only introductory matter stated by way of inducement to the principal subject of the next count which alleged a “conspiracy of all the defendants to wrong the plaintiff by falsely charging him with a crime in the manner alleged.” The third count was found to be “a distinct charge against all of the defendants for an assault and battery upon the plaintiff and for resulting damages.” And the fourth count “is for the malicious prosecution of the plaintiff by all of the defendants acting together in and through the defendant Louis C. Hall, Sr.”

Following that opinion defendants pleaded the general issue with 29 notices of special defense apparently designed to approximate the declaration in magnitude, if not in multitude of words. The trial resulted in a verdict and judgment against defendant Louis C. Hall, Sr., under the conspiracy count, for $3,400, the other defendants being found not guilty by direction of the court. A motion for a new trial on many of the grounds repeated here was denied, and defendant Hall, Sr., has removed the judgment to this court for review on 204 assignments of error, many of which in different form center to the same legal objections'.

All the parties to this action lived in Owosso. Plaintiff, Hugh McDonald, was foreman in an ice cream factory, of which his brother John was manager, where his duties confined him during regular working hours. He had four children, one of whom was a girl called Irene, then living at home and attending school. On January 8, 1915, she and a school mate named Ruth Preston went to a dance in the Moose hall between two and three blocks from her home. By previous arrangement these girls were followed after they left the dance about midnight and picked up on the street by defendant Louis C. Hall, Jr., a young man 20 years of age, and an associate named Reddy Smith, who took them to the home of Hall, Jr.’s, father, defendant Louis C. Hall, Sr., who with his wife was then absent from home, where the four remained for some time during which it was charged young Hall had sexual relations with the girl Irene. Some days later plaintiff had occasion to take his daughter to a physician for medical treatment and from what he then learned laid the matter before the proper officials and made complaint before a magistrate against young Hall for statutory rape upon his daughter. The prosecuting attorney took charge of the case for the people and after investigation consistently maintained it as a criminal charge of felony which he as public prosecutor ought to and did prosecute to final trial and adjudication in the circuit court, where young Hall was eventually acquitted, as plaintiff claims largely through the pretrial conspiring efforts of defendants and others who worked with them to that end; it being also charged in his declaration that under the conditions detailed he was deceived into agreeing to a settlement of the case through the misrepresentations and false statements made to him as to his right to do so by an attorney named John T. McCurdy and the Rev. C. H. Hanks, two members of the learned professions who figured conspicuously, at least, in certain of the events charged to constitute the conspiracy. Defendant Hall, Sr., was a business man in that city, where he ran an elevator and grain business, was a stockholder and director in the State Savings Bank of Owosso, called the Gallagher Bank, of which defendant Gallagher was president, and a paying member of the church of which the Rev. Hanks was pastor. Shortly after the matter became public Mr. Hanks went to the factory where plaintiff worked and admittedly talked the matter over with him, counseling a settlement of the matter as plaintiff claims and he denies, stating that he only “was trying to save the young people,” but admitting, however, that in so doing he “may have referred to a double standard.” He also interviewed the prosecuting attorney in company with the brother of Hall, Sr., and while there telephoned for Hall, Sr., and son to come there, the purpose of the interview being, as they stated it in a general way to the prosecuting attorney, to see if a prosecution could be avoided. Later, when McCurdy arrived from the south he introduced him to plaintiff and was present at an interview in the back room of Gallagher’s bank between the Halls, McCurdy, plaintiff and his brother. Just how the parties came to meet there, and what was said or promised is in marked dispute, but Mr. Hanks, while not prepared to go into details, gave his recollection in reply to an inquiry as to the manner in which the case was to be handled, or disposed of, “that it would have to rest entirely with the father, representing the girl, whether this complaint was urged or not, it rested with him to say.”

When called into the case McCurdy was making his home at the Traverse Club in San Antonio, Texas, and was telegraphed for by Hall, Sr. He testified that he started at once on receipt of the telegram, arriving at Shiawassee county on March 2d, going that afternoon at the request of one of the Halls to the bank parlors where they found the McDonald brothers and Mr. Hanks, who introduced him to the McDonalds, and the matter in relation to which he had been retained was discussed. Plaintiff testified, and we do not discover it denied, that he was called to this interview by the brother of Hall, Sr. What was proposed and said there is in marked dispute. Plaintiff claims that he had been urged by Hall, Sr., and Mr. Hanks to settle the matter up and drop the prosecution, that he was assured by McCurdy that rather than try the unwholesome case he desired to effect this in the interest of all parties; that he was an attorney of long experience and ability who would not think of countenancing anything but what was proper and lawful, and they could depend on his professional advice that such course was right, permissible and in the interest of all concerned; that plaintiff believed what they told him, listened to their overtures and entered into negotiations for a settlement.

Not claiming that any of them ever suggested to plaintiff that such course was unlawful and criminal, it was contended and testified for defendants that all overtures for settlement and demand for a money adjustment emanated from plaintiff and his proposals were tentatively entertained for the purpose of seeing how far he would go in compounding a felony.

Thereafter McCurdy figured actively in the case in the three-fold capacity of detective, witness and attorney, actively participating at the trial in the two last named. He had several friendly interviews with plaintiff, upon whose initiative they do not agree, one of which was at his own house which Hall, Sr., and the cashier of the bank attended, in hiding, and overheard. He secured before he got through the signature of plaintiff to three agreements, or an agreement in triplicate as he calls it, to settle and withdraw the criminal case against young Hall for $5,000, making arrangements to meet him in the bank at an appointed hour and consummate the agreement. Hall, Sr., who was listening in at the time, testified he heard Mc-Curdy assure plaintiff, who had expressed some misgivings, that it would “go through as scheduled,” although on reflection he denied knowing what the schedule was or what the word meant.

As agreed, McCurdy, plaintiff, and Hall, Sr., met in the back room of Gallagher’s bank after 3 o’clock the next afternoon, the other parties visibly in attendance being Gallagher and an assistant in the bank named Stanton. Gallagher had, at McCurdy’s request, previously done up $5,000 in packages, taking the numbers of the bills which he stated was a task taking some little time. They then proceeded as plaintiff supposed to close the deal, with McCurdy as the moving party in charge. They sat at a table and, as Mc-Curdy testified, he told plaintiff, “I have prepared a triplicate set of your offer in regard to this matter,” which he read and plaintiff signed, Gallagher and Stanton signing as witnesses. He then told Gallagher to bring in the money, which he did and laid it upon the table. Plaintiff testified Hall, Sr., then handed it to him. After starting to count it he made some inquiry of Gallagher as to the amount in each package. After assurance by him as to the amount he asked Gallagher to put it in the bank and give him a certificate for it, to which McCurdy answered for Gallagher that he “did not wish that money in the bank,” and plaintiff then proceeded to put it in his pocket, when McCurdy in a loud voice summoned defendant Herrick, a deputy sheriff stationed outside the room in sequestered attendance, to come in and arrest plaintiff for compounding a felony and ordered plaintiff to put the money back on the table with which he complied. Plaintiff then proposed to telephone his brother or get counsel, but McCurdy told him he could not telephone or communicate with any one and directed Herrick to take charge of the money and arrest him, which he did. Herrick testified that his presence there was pursuant to an earlier request from Mc-Curdy to be available at the hotel nearby to serve some papers and he was called from there to the bank by Stanton. McCurdy then telephoned for the prosecuting attorney and laid thé matter before him, stating what had transpired was the result of plaintiff’s solicitation and asked that on such evidence as he presented a warrant be authorized against plaintiff, to which the prosecutor assented, complaint being made by Hall, Sr., under a section of the statute Mc-Curdy said he had looked up, and made reference to; The sheriff was authorized to put the money back in the bank, taking a certificate of deposit. Plaintiff employed counsel to defend him and obtained bail after which his case was continued from time to time, being eventually dismissed on advice of the prosecuting attorney that under the section of the statute McCurdy. had selected and the complaint as made he could not be held. •

Of the many assignments of error on admission against objection of testimony introduced by plaintiff to support the charge of conspiracy, it is sufficient to state that most of them are directed to' items of testimony concerning the doings and sayings of certain participants which separately considered might seem objectionable, but on the whole record are made admissible by inferential proof of concerted action in a common purpose.

“Evidence in proof of a conspiracy is generally circumstantial and it will be sufficient if it proves the fact that the agreement to do the unlawful act existed, although its terms, the time and place of forming may not be shown.” 3 Ene. Ev. p. 408.

It is not essential that all parties ■ claimed to be participants in a conspiracy be made parties to the action; and when it is inferable from what they said and did that they were working to the same purpose, with the same object in view, so that in the end concert of action is apparent, such testimony is admissible. It may be said in general that most, if not all, objections of that character are not tenable under the recognized rules of evidence applicable to such an inquiry, well stated in Wright on Conspiracies, p. 212, in part as follows:

“In nearly all cases a conspiracy must be proved by circumstantial evidence, that is, by the proof of facts from which it may be fairly implied that the defendants had a common object, and that the acts of each, though they may be different in character, were all done in pursuance of a common end and calculated to effect the common purpose. * * * Concurrence of action on a material point is sufficient to enable the jury to presume concurrence of sentiment, and from this the actual fact of conspiracy may be inferred. Nor is it necessary to show that the conspiracy originated with the defendants, for every person entering into a conspiracy already formed is deemed to be a party to all acts done by any of the other parties, before or afterwards, if done in furtherance of the common design. It is upon this principle of a common design that the acts and declarations of co-conspirators, and acts done at different times and by different individuals are admitted in evidence against those prosecuted, as whatever is said or done by anyone of the number, in furtherance of the common design becomes a part of the res gestx, and is the act or saying of all.”

The far more serious assignments of error are those which in various forms are directed to the persistent and questionable manner in which throughout the trial plaintiff’s counsel stressed, against all objections of counsel, intimations and rulings of the court, the issue of the debauchery, claiming speciously the right under allegations upon that subject in their voluminous declaration, asserted to have been sustained and approved by this court.

They did not have and could not try, under their declaration, a case of debauchery against young Hall, much less the other defendants, and yet all through the case that offense was emotionally made the dominant subject of their efforts, either under the guise of inducement to their conspiracy count or the claim of right under “all four counts of the declaration,” which were laid against all defendants. Objection was early and often made by defendants to such endeavor.

On the former appeal the only question before this court was. one of pleading. In holding that as a pleading the declaration sufficiently charged the acts complained of in the four counts as the joint acts of all the defendants the court could not and did not assume to pass upon what might develop upon the trial', and particularly stated in view of questions it was claimed the peculiarities of the declaration foreshadowed, “what the evidence may show we are not here concerned with.”

What the evidence did show on the trial was that this case arose out of the criminal prosecution of Hall, Jr., for statutory rape of plaintiff’s daughter, a child 13 years of age; that the only suggested grievance of plaintiff against the other defendants was a claimed conspiracy entered into by them after commission of the charged crime, and while the criminal prosecution was pending, to defeat his conviction by deceiving and ensnaring plaintiff into unwittingly compounding the felony by accepting money for settling the case and agreeing to withdraw his complaint, under the belief from their assurances that it was right and lawful for him to do so, with no proof or pretense that they participated in of were in any way parties to any assault upon the young girl, felonious or otherwise, or even ever heard of the alleged assault until it was made public by the criminal proceeding against young Hall.

Early in the trial when objection was made to certain of plaintiff’s testimony the court, after some discussion of the declaration, suggested it should be determined what it was proposed to try, whether a charge of debauchery or conspiracy or both, and was informed by the counsel who drew the declaration that the charge of debauchery was “only alleged by way of inducement, and not as a count and therefore that part of it is not proven as a count for damages. * * * That debauching the plaintiff’s daughter is a

cause that we have, and that it was an inducement to the conspiracy charge these people went into.” Asked if they intended to ask for damages under the count for assault and battery he answered, “Not specifically against Louis C. Hall.” But later, when the associate counsel for plaintiff most aggressively in charge of that side of the case proceeded against objection along lines indicting a different theory and a discussion arose, he stated,

“I tell your honor that the plaintiff in this case claims for four counts — an action for malicious prosecution, false imprisonment, assault and battery, and the injury to the child under the assault and battery clause and aggravation of it.
“The Court: You claim under all four counts of the declaration?
“Mr. P.: All four counts of the* declaration.”

Apparently upon this theory and as an affirmative part of his case counsel continued, against numerous objections and requests that he be required to elect between counts, with proof of debauchery as a substantive cause of action, introducing the testimony of young Hall taken upon his trial in the criminal case, and calling among other witnesses the girl claimed to have been debauched to describe .the offense in detail. Afterwards, when a question of damages arose and the court asked him if they claimed “damages for intercourse with this girl,” and said that question should be settled, he declared his reason for refusing to elect as follows:

“Now, all through that declaration our great grievance is just two things as I understand, the wrong to the girl, to this man in his capacity'of father, the wrong to himself in the arrest. We have a right to show these things and couple them in one declaration. The doctrine of election never applies until the testimony on any theory possible has been submitted to the court.”

And later, when it was intimated by the court that counsel should state upon what different counts they expected to go to the jury, he again answered:

“I insist we are entitled to go to the jury as matter of law and for them to determine every count set forth in the declaration.
“The Court: All four counts?
“Mr. P.: All four counts.”

While the court did not ultimately submit the question of debauchery to the jury as a ground of recovery, the matter was left open for counsel to ring the changes upon it until final argument of the case to the jury, in which impassioned and prejudicial appeal was made pointing to debauchery as a ground of recovery and the controlling issue for the jury to decide, counsel’s peroration being, against objection and exception, in part as follows:

“Gentlemen of the jury: Now, as we approach this glad festival time now coming, Thanksgiving (which is peculiarly an American product for the giving of thanks for the blessings that have been showered upon us by Divine Providence), as you return to your wife to eat your Thanksgiving dinner I hope you will so conduct yourselves in this case by the rendition of a verdict that will get the respect of the community, that will show that girls and women are not beasts to be handled as mere toys of men, and I hope that you will be able to say, gentlemen of the jury, as you go to your home and meet your wife and press your lips upon her mouth or forehead, 'Nellie, I have been trying cases in the circuit court here during this term. So far I have had but .one opportunity to undertake to protect those that need protection, the children; I have had only one opportunity to emulate the Divine example of the Savior of mankind when he said, “Suffer little children to come unto me and forbid them not for of such is. the kingdom of heaven.” I say to you, the girl that I loved since you have been 18 or 19 years of age up to the present time (and as years go by I love you even more dearly than I have before), by the verdict I have written upon the records of Shiawassee county, I have shown that while there is no price to be fixed on any women, that the clouds are the limit as to the total damage for the desecrating and ruining of a child before she comes to the age of discretion by an habitual destroyer of women — not women, but of children.’ ”

The inducement of a pleading is but an explanatory introduction to the main allegation in which the cause of action is alleged. Although counsel insisted to the contrary, the court had held when this argument was made that there could be no recovery against young Hall in this case, but whatever right of action plaintiff had against him for debauching his daughter remained and could be pursued in a proper case. It seems patent that counsel knew from the beginning, as the court from the pleadings did not, that there was no ground for the count charging Hall, Jr., and the other defendants jointly with an assault on plaintiff’s daughter, and it is indicated by this record that counsel was, at least, not frank with the court in insisting they should not be required to elect as to counts “until the testimony on any theory possible has been submitted to the court”; for had their position been timely made clear, the court could and undoubtedly would have excluded certain of plaintiff’s, evidence and argument featuring the assault and debauchery as the dominant issue when affirmatively proving their case.

After the case had been tried and the record made all these matters were presented to the court in a motion for a new trial with numerous other grounds which need not be discussed. It was especially urged amongst other reasons that defendant was injured and prejudiced in the closing argument of plaintiff’s counsel by appeals to the passions and prejudice of the jurors on the subject of young Hall’s alleged debauching as above quoted in part, and failure of the court when objection was made to then check and correct counsel.

We think that for these prejudicial errors defendant should be granted a new trial.

The judgment is reversed, with costs to defendant, and a new trial granted.

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