text:
    REIMOLD v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    Insurance — Fire—Waiver of Forfeiture.
    In an action on a policy of fire insurance ,of an intestate brought by a son and administrator, to whom the parties in interest assigned their rights, commenced after the discharge of the administrator and assignment of the real estate by the probate court and by act of the heirs, a waiver of forfeiture for breach of the terms of the policy is established by a showing that, although they had knowledge of the transfer of the property, the officers of the insurer made no objection on that ground, and dealt with him as if they intended to pay the loss, making no tender of assessments paid until after the institution of suit, and that in reliance on their action plaintiff employed attorneys and expended money.
    Error to Macomb; Erskine, J.
    Submitted April 6, 1910.
    (Docket No. 11.)
    Decided July 14, 1910.
    Assumpsit by Charles J. Reimold against the Farmers’ Mutual Fire Insuance Company on a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Henry J. McKay and William T. Hosner, for appellant.

      William T. Kelly and John A. Weeks, for appellee.
   McAlvay, J.

This suit is brought by plaintiff against defendant company to recover upon insurance policy No. 3194, issued by it December 6, 1887, to J. J. Reimold, for a loss claimed to have been sustained thereunder.

The facts in the case are not in dispute. It appears from this record that J. J. Reimold died intestate, February 14, 1900, leaving surviving him a widow and eight children. The plaintiff, a son, was appointed administrator of his estate, March 19,1900, and entered upon the-duties of his office. The estate consisted of personal and real property. On or about February 29, 1904, he filed a. final account in the probate court for Macomb county, petitioning for its allowance, and on April 5, 1904, an order was entered in said court allowing said account as presented, assigning the residue of the estate, consisting of' real property, to the widow, who was also described as assignee of all of the children, and the administrator was. declared discharged and his bond canceled. The petition, for this order stated that the children had all joined with him and released all claims to the personal property to their mother. The order makes no disposition or mention, of the personal property, and the record shows that it was never divided, or any agreement entered into in regard to' it. A quitclaim deed of the real estate was made by all of' the children to their mother on or before April 12, 1904.

The loss by fire caused by lightning, for which suit was brought, occurred September 1, 1907, destroying one of the barns and contents covered by the policy. The entire amount of insurance carried by the policy was $5,'057, and this loss is agreed to have amounted to $2,175.87. All fees, dues, and assessments, under this policy, from the date of its issue until the fire occurred, were paid in full and receipted for by defendant. After the death of the father they were paid by plaintiff or some member of the family. While acting as administrator, plaintiff, on August 2, 1901, applied for and was granted additional', insurance of $1,000 under this policy, receiving a receipt describing him as administrator, and “a member of said corporation for the register and membership fees on additional insurance under policy 8194.”

After the fire, plaintiff immediately notified the company of the loss, and the president, secretary, and a director, being the official adjusters of defendant, at once came and looked over the loss. Upon being asked by the president if he was administrator of his father’s estate, he replied that he was, and his testimony is that he believed that he was. Ten days later the full board of directors of defendant examined the loss in a body. Plaintiff met them at the creamery, in Mt. Clemens, where he worked, after they had been to the farm. At this meeting the items of loss as mentioned were discussed, and the officers told plaintiff some of them were too high. They asked bim if he would stand a cut, to which he replied that he would not. They offered him about $1,940 or $1,950, which he did not accept. The proofs of loss had been made out by him, and were given to the officers of the company at the time they were at the house. These proofs were sworn to before defendant’s secretary, a notary public, September 30, 1907, at an appointed meeting of the board of directors with him, and are signed by plaintiff as administrator. His recollection is that he was requested to sign as administrator by some member of the company. At this meeting the items of loss were discussed without result. On November 1, 1907, an assignment was made by the widow and heirs at law of J. J. Reimold to plaintiff, of all their rights and interest in this policy. In December plaintiff and his attorney, Mr. Weeks, met the secretary of defendant at the hotel in Mt. Clemens, and asked why the company did not pay the loss. He replied that it was because of a transfer. He said that the company would pay when they found out whom to pay it to. The secretary informed them that he would arrange for a meeting and notify the attorney to be present.

A witness testified that on this day the secretary told him plaintiff should have had the policy changed when he was discharged as administrator; that a meeting of the directors would be held soon, and he thought without doubt the claim would be settled; the only question was whom to settle with. This witness on the following day related this conversation to plaintiff, and, relying upon this, he employed counsel to adjust the loss.

Plaintiff did not personally attend any later meetings of the company’s directors. On January 14,1908, the secretary, by order of the president of the company, wrote a letter to plaintiff’s attorney, notifying him to attend a meeting to be held at his office to consider the Reimold matter. Two attorneys appeared at this meeting of the board authorized to act for plaintiff. The matter was fully discussed. The items of the claim were considered, and the fact that plaintiff had signed the proofs as administrator was mentioned. The president stated that they would like to settle the loss; that the estate had been closed, that a deed had been made to the widow, and there was a question whether the board had the power to settle a loss of this kind. They did not say that they would not pay the loss at this meeting or at any meeting. Because defendant’s attorney was not present nothing was done. It was understood that another meeting would be held when defendant’s attorney would be present. Plaintiff’s attorneys were notified of such meeting and attended. At this the same matters were gone over. Defendant’s officers stated that they would advise later what their decision would be. At the third meeting plaintiff was represented as before. The president stated that they had pressing business, and it would be impossible to discuss the Reimold matter. Plaintiff incurred an expense of more than $100 after he employed his attorneys before liability was denied by defendant.

No portion of the dues and assessments paid by plaintiff after his father’s death were tendered or returned up to the time of the trial of the case. During the trial defendant’s attorney tendered into court about $75,—

“Representing all moneys paid to the. company after the closing of the estate, or such times as the proofs should show the policy to have been canceled as claimed by the company, and all costs taxable at the time of tender; and, further, that such tender was made without conceding liability in any other manner.”

Defendant offered no proofs, and, at the close of plaintiff’s case, asked for a directed verdict. This was denied, and a verdict was instructed for plaintiff, upon the ground that defendant had waived the claimed forfeitures of the insurance policy. A motion for a new trial was made by defendant and denied.

The case is before us on writ of error. But one question of importance is presented, and that is whether the court was in error in holding that defendant had waived the claimed forfeitures of this policy. We are satisfied that the admitted facts above stated warranted the action of the court.

The claimed breaches of the policy upon which defendant relies are (1) that the estate of J. J. Reimold was closed; (2) that there was a change of title by deed from the heirs to the widow. The deed to the widow was duly recorded April 12, 1904. The fire occurred September 1, 1907. Other facts already stated need not be repeated. It is only necessary to state that after full personal knowledge of the closing of the father’s estate and the transfer to the widow, the secretary and other officers of the company without repudiating the claim of plaintiff, continued to deal with him as if they intended to pay the loss he claimed. Notice was given to his attorney to meet with the officers. Plaintiff in good faith relied upon what the secretary said, and went to large expense employing attorneys to attend these meetings. It was the duty of defendant’s officers when knowledge of these claimed breaches of the policy came to them, to promptly repudiate liability. Carpenter v. Insurance Co., 61 Mich. 635 (28 N. W. 749); Cleaver v. Insurance Co., 71 Mich. 414 (39 N. W. 571, 15 Am. St. Rep. 275), and cases cited; 13 Am. & Eng. Enc. Law (2d Ed.), p. 257, and cases cited. Defendant, after full knowledge of the facts, did not return or tender any assessments paid after the claimed forfeitures occurred, until after suit was brought. Such retention of these assessments amounted to a waiver even if the insurer at the time when payments were made did not have notice of such forfeitures. 19 Cyc. p. 798c, and cases cited.

Upon the question whether there were in fact any forfeitures of this policy, as claimed by defendant, under the circumstances of this case, we express no opinion. Upon the question of waiver we are in accord with the trial court.

The judgment is affirmed.

Moore, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CHASE v. HART.
    Constitutional Law — Drain Commissioner — Salary.
    A drain, commissioner, who holds over until the election of his successor under Act No. 118, Pub. Acts 1909, and whose salary is fixed by the board of supervisors before the date named in the act, from which the then acting commissioner shall hold over, is entitled to the compensation as changed, and the action of the board of supervisors does not contravene the constitutional inhibition against the increase or decrease of salary of any officer after election or appointment; since the right to the office was not determined until the date named in the statute.
    Certiorari to Calhoun; North, J.
    Submitted April 5, 1910.
    (Calendar No. 23,927.)
    Decided July 14,1910.
    Mandamus by Arthur H. Chase, county drain commissioner, to compel Ray E. Hart, county clerk, to issue an order for the payment of relator’s salary. An order granting the writ is reviewed by respondent on writ of certiorari.
    Affirmed.

      Jesse M. Hatch, for relator.

      Howard W. Gavanagh, for respondent.
   Moore, J.

This is a certiorari proceeding brought for the purpose of reviewing the action of the circuit judge in granting a writ of mandamus directing the respondent to issue an order for the salary of the petitioner.

Counsel for appellant says in his brief:

“ About the only question the respondent desires passed upon in this matter is whether or not the drain law as passed by the legislature in the year 1909 affects drain commissioners who were continued in office by virtue of the same act. The circuit judge has determined that the salary as fixed by. the board of supervisors is the sum of |800 per annum and the relator is not appealing from that finding. * * *
“Therefore the sole question which the court is asked in this hearing to determine is whether or not the drain commissioner, continued in office by the act of the legislature, is entitled to salary during the year 1910.”

The questions presented require a construction of Act No. 118 of the Public Acts of 1909. This act amended the so-called “drain law” of the State. When it took effect in September, 1909, the petitioner was county drain commissioner for Calhoun county. His compensation at that time was by the receipt of fees. Section 1, chap. 2, of the act provides for the election of a drain commissioner on the Tuesday succeeding the first Monday in November, 1910, and each second year thereafter, whose term of office should commence January 1st following the election. Section 2, chap. 2, provides that all county drain commissioners holding such office on December 31,, 1909, shall continue to be such commissioners, until their respective successors are elected and qualified in accordance with the provisions of section 1. Section 5, chap. 9, reads:

“ Sec. 5. Each county drain commissioner shall receive an annual salary to be paid as other county officers are paid, the amount thereof to be fixed by the board of supervisors at its regular October session in the year nineteen hundred nine, and every two years thereafter, in the same manner as the salaries of other county officers are fixed.”

Acting under the provisions of this section, the supervisors, in October, 1909, proceeded to fix the salary of the relator. It is now claimed this action was in violation of the provisions of the Constitution, which does not permit the increase or decrease of the salary of a public officer after election and appointment. As the law stood when Act 118 was enacted, the petitioner’s term of office would have expired December 31, 1909. His term of office from January 1, 1910, until January 1, 1911, was by virtue of the provisions of section 2, chap. 2, of said act, coupled with the fact that he was drain commissioner on December 31, 1909. The fact of who should be drain commissioner for 1910 was determined by the fact of who occupied that position on December 31, 1909. This was a date subsequent to the date when the salary was fixed by the board of supervisors.

The case is not within the constitutional inhibition.

The action of the circuit judge is affirmed.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    SCHULTE v. MICHIGAN CENTRAL RAILROAD CO.
    Carriers — Negligence—Derailment—Defective Roadway.
    Evidence that the derailment was caused by the spreading of rails, that the ties were rotten and the spikes loose, justifies the submission of the carrier’s negligence to the jury.
    Error to Wayne; Murfin, J.
    Submitted April 7, 1910.
    (Docket No. 29.)
    Decided July 14, 1910.
    Case by Albert Schulte against the Michigan Central Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Dohany & Dohany, for appellant.

      J. Walter Dohany (Henry Russel, of counsel), for appellee.
   Moore, J.

The plaintiff was a passenger on one of defendant’s trains on the night of December 6, 1906j to be carried from Yassar, Mich., to Detroit, Mich. When the train arrived at a point between Millington and Otter Lake a wreck occurred. The car in which plaintiff was a passenger rolled down an embankment and plaintiff was seriously injured. After plaintiff had put in all his testimony, the defendant moved the court to direct a verdict, which the court did, on the ground that plaintiff had failed to introduce sufficient evidence of negligence on the defendant’s part to require the court to submit the case to the jury. Plaintiff bases his only assignment of error on this action of the court.

Plaintiff testified in part as follows:

“The train consisted of engine, tender, baggage car, smoker, ladies’ coach, and parlor car, in the order in which I have mentioned them. Between Millington and Otter Lake, about three and a half or four miles south of Millington, and two or three miles from Otter Lake, we felt the bounding of the cars on the tracks, and I jumped for the hat rack, and the car went over the embankment, and I struck my back to the ceiling. The coach I was in went over down the embankment, which was 12 or 15 feet deep.
Q. You say you grabbed for the hat rack. Then state what occurred.
“A. I grabbed for the hat rack, and I hung on, and the car went over the embankment and I struck my back to the ceiling, and I slipped from the hat rack and I came to in the vestibule — the vestibule to the south.
Q. Did the car turn over ?
“A. Yes, sir. After we got out of the car we walked north to see what had caused the accident.
UQ. How far up north did you go ?
“A. North about the distance of a block and a half here.
“ Q. That is, towards Millington ?
“A. Towards Millington.
‘Q. What, if anything, did you find there as to tracks and the ties ?
“A. The east track was spread and the spikes were partially pulled out.
Q. What was the condition of the ties ?
“‘A,, The ties were rotten.
‘ ‘ Q. Did you notice the holes where the spikes were pulled out ?
“A. Yes, sir.
“Q. Just describe what condition those ties were in as to spike holes and rails and everything that you saw.
“A. The spike holes were grown larger, loosened by spikes, and the rail had spread, oh, probably five to six inches at the place; maybe only four, and the track did not meet at the east side; that is, the east track the plates had broken and they did not meet.
“Q. Did you notice the mark of the flange of the wheel on the ties ?
“A. The flange marks, yes.
“Q. Where did that begin ?
“A. Where the rail was loose.
£ £ Q. Did you examine whether the rail was loose or not ?
“A. I did.
“Q. How far from this place that you describe that condition was it to the place where the cars had turned off and gone down the embankment ?
C,A. Probably 30 rods.”

There was considerable other testimony to the same effect. We do not think it can be said, as a matter of law, that defendant was free from actionable negligence. See Hamilton v. Railroad Co., 135 Mich. 95 (97 N. W. 392); Whipple v. Railroad Co., 143 Mich. 41 (106 N. W. 690); Parker v. Station Ass’n, 155 Mich. 72 (118 N. W. 733).

Judgment is reversed, and new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
      In re BARNES’ ESTATE. WORLD’S GOSPEL UNION v. JOHNSON.
    Wills — Estates of Decedents — Ademption of Legacies.
    After the execution of a will by which real estate was devised, it became necessary to sell the property for the support of the testatrix who became incompetent. At her death a portion of the proceeds remained. Held, that the devisees should take the residue under the will as if no sale had been made. 3 Oomp. Laws, §§ 8719, 9141, 9145.
    Error to Benzie; Lamb, J.
    Submitted April 7, 1910.
    (Docket No. 16.)
    Decided July 14, 1910.
    William J. Pettitt presented his final account as executor of the last will and testament of Mary P. Barnes, deceased. The account was allowed in the probate court, and an order of distribution entered. Henry N. Johnson, an heir at law, appealed to the circuit court. A judgment holding that said will had been revoked by a sale of the devised property is reviewed by the World’s Gospel Union, a devisee under said will, on writ of error.
    Reversed, and the order of the probate court affirmed.

      Parm C. Gilbert, for appellant.

      D. G. F. Warner, for appellee.
   Moore, J.

Mary P. Barnes made a will by which she devised to the World’s Gospel Union certain real estate. Later she made a codicil by which she gave certain of her property to George S. Eisher, in trust for the Gospel Missionary Union. As the terms of the codicil have been met they do not require consideration in this case. Later Mrs. Barnes became incompetent, and the probate court appointed Thomas Pettitt as the guardian of her person and estate. He sold the lands that were devised to the World’s Gospel Union, and used a part of the proceeds for her support. Mary P. Barnes died later, and the will in question was probated, and the money in the hands of her guardian was turned over to the executor and is a part of her estate. The probate court allowed the World’s Gospel Union the residue of the proceeds of the sale of the land that had been devised to it. Henry N. Johnson, a brother and an heir at law of deceased, appealed therefrom to the circuit court, and the circuit court found that the World’s Gospel Union was not entitled to any of the money; that the sale of the land revoked the will; and from said decision the World’s Gospel Union have appealed.

Defendant and appellee contends:

(1) That by the terms of the. will of Mary P. Barnes the devise to the World’s Gospel Union is a specific devise.

(3) That by the transfer of the property specifically devised to the said the World’s Gospel Union prior to the death of the said Mary P. Barnes and the conversion of the same into money, it would be an ademption of the same.'

(3) That the acts of the guardian of Mary P. Barnes were her acts in law.

We cannot agree with these contentions or with the conclusion reached by the trial judge, because of certain statutory provisions. When the will was made Mrs. Barnes was the owner of the land described in the will. The will was never in fact revoked. It was afterwards probated. The sale of the lands was brought about because Mrs. Barnes became insane, and it was deemed necessary to appoint a guardian and sell the land for her maintenance. Section 8719, 3 Comp. Laws, provides for the management of estates of wards and for the sale of real estate when the conditions stated in the statute arise. Section 9141, 3 Comp. Laws, provides that when the income of the estate of any person under guardianship is not sufficient to maintain the ward the guardian may sell his real estate upon obtaining a license to do so. Section 9148, 3 Comp. Laws, provides for the application of the proceeds of the sale for the support of the ward, etc.

Section 9145 reads as follows:

“ Sec. 5. In every case of the sale of real estate, as provided in this chapter, the residue of the proceeds, if any, remaining upon the final settlement of the accounts of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions as the real estate would have been, if it had not been sold.”

It is clear that, if the real estate described in the'will had not been sold, the terms of the will would have governed. We think it equally clear that, as it was sold, but the proceeds were not all used, the residue should be considered as real estate and be disposed of the same as though no sale had been made.

Judgment is reversed, and the division of the residue as made by the probate court may stand.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    McDONALD v. MILLER.
    Taxation — Sale for Unpaid Taxes — Statutes.
    That an application to purchase State tax lands was received at the auditor general’s office, during the progress of a tax sale at the county treasurer’s office, does not avoid the sale, which was consummated by the auditor general after the conclusion of the public sale and the report thereof by the county treasurer, showing that no individual had purchased the land. 1 Comp. Laws, §§ 3960-3962.

      Appeal from Bay; Collins, J.
    Submitted April 22, 1910.
    (Docket No. 72.)
    Decided July 14, 1910.
    Bill by Mary McDonald against Archie T. Miller and James B. Bradley, auditor general, to set aside a sale of land delinquent for taxes. From a decree dismissing the bill but reserving the right to obtain a reconveyance under sections 3960-3962, 1 Comp. Laws, defendants appeal.
    Affirmed.

      James Donnelly ( Gilbert W. Hand, of counsel), for complainant.

      John E. Bird, Attorney General, and J. Shurly Ken-nary, Assistant Attorney General (George L. Hauser, of counsel), for defendant Auditor General.

      Brown & Earley, for defendant Miller.
   Ostrander, J.

The court below dismissed the bill of complaint, reserving in the decree the right of the complainant to obtain a reconveyance of the land under the provisions of sections 141-143 of the general tax law (1 Comp. Laws, §§ 3960-3962) within 30 days after the final determination of the cause.

The complainant is the owner of certain premises which were returned delinquent for the taxes for the years 1904, 1905, and 1906, and in due course decrees passed to the auditor general for the sale of the land for the taxes of the years 1904 and 1905, and it was offered for sale in May, 1907, for the taxes of 1904. There being no purchaser, it was bid to the State. It was not redeemed, and in May, 1908, was again offered for sale for the taxes of 1905, and again bid to the State. The annual tax sale in the year 1908 was begun at the county treasurer’s office on May 5th and was continued to and including May 21st, on which day the county treasurer prepared and filed his report of the said annual tax sale. May 15, 1908, the defendant Miller applied to the auditor general to purchase the State’s interest in the property, and he deposited with the auditor general the amount of money necessary to purchase from the State for the taxes of 1904 and 1905, and also sufficient money to pay the taxes which had been assessed against the property for the year 1906. Interest was computed upon the taxes to and including the said month of May. Later the auditor general issued his deed to defendant Miller, who, in July, 1908, gave the required notice to complainant, who claims that the service of the notice upon her was the first information she had that the land had been delinquent for taxes and had been sold. On the 17th of August, 1908, she applied to the auditor general for a cancellation of the sale to Miller and asked to be permitted to pay all the taxes unpaid against the land, with interest and charges thereon up to and including the month of August, 1908, and she tendered to the auditor general a sufficient sum of money. Among the reasons asserted for such cancellation is the one now relied upon, which is that the application of Miller was received during the progress of the annual tax sale in the county and was made void by the provisions of sections 70 and 84 (1 Comp. Laws, §§ 3893, 3907) of the general tax law. The auditor general refused her demand, stating that he did not sell the land during the continuance of the county treasurer’s sale, but held the application of defendant Miller and his money until the county treasurer reported the land unsold at said tax sales, after receiving which report he consummated the sale to Miller and issued his deed. She thereupon filed her bill in this cause, in which she charges that the sale to defendant Miller is void because made contrary to the provisions of sections 70 and 84 of the general tax law, and prays for a decree canceling and setting aside the sale and the tax deed issued pursuant thereto, and permitting her to pay and discharge the said delinquent taxes. The defendants answered, but at the hearing produced no testimony.

While counsel for the defendants have discussed the right of the complainant to maintain this suit, we consider only the question whether the mere fact that the defendant applied to purchase this land and deposited his money with the auditor general, during the time the tax sales were in progress in the county of Bay, rendered the sale to defendant Miller void. It is true that the answer of the auditor general in which he alleges that the sale was not consummated until he had received the report of the county treasurer, which showed that no person had bid for this land at the sale conducted by the county treasurer, is not evidence of the fact. It is also true that the deed issued to defendant Miller was not in evidence, and the exact date thereof is not proven. It is also true that the complainant has not shown that the sale was consummated before the 21st of May. It is charged in the bill of complaint, upon information and belief, that the State deed to Miller was issued on June 10, 1908. This is admitted by the answers of the auditor general and Miller. There is no reason to doubt the proper performance of official duty by the auditor general, and if we assume, as his answer states, and as we think we should do, that he merely delayed or held in abeyance the application of defendant Miller until such time as it appeared that there had been no bidder at the county treasurer’s sale, and then treated the application as a continuing and valid one, no reason is perceived for holding that the sale was void, or even irregular. We are not required to say that the auditor general is bound to return all applications and all money made at his office during the progress of the various tax sales in the county. As between two persons applying to purchase the same land, one of whom made a bid at the county treasurer’s sale and the other at the auditor general’s office, there seems to be no question that the bid made at the county treasurer’s office would be accepted and the bidder awarded the land. No question of priority is involved here.

Counsel for complainant have called attention to various decisions of this court, in which it is held that the duties of the auditor general in issuing deeds are ministerial, and that the rights of an intending purchaser attach at the time he makes his application and deposits the proper amount of money.' Those decisions have no application. They are cases where either the right of priority between individuals was in question, or the effect of a statute or amendment to a statute taking effect later than the date of the application was considered.

The decree is affirmed, with costs.

Hooker, Moore, Blair, and Stone, JJ., concurred.


text:
    GAULT v. GAULT.
    1. Landlord and Tenant — Tenancy from Year to Year — Statute op Frauds.
    By letting into possession tenants who agreed to execute a written lease for three years, and who, after obtaining possession, refused to surrender the premises; and by afterwards notifying them that they might remain for a year, if they paid rent in accordance with their agreement, the landlord gave them no right to remain more than the year.
    2. Same — Eppeot op Notice.
    Acceptance of rent after the expiration of the year, although ineffective proceedings for dispossession were pending, and a subsequent notice to quit or to pay rent due, while inconsistent with the theory that the tenancy had been terminated, did not create a tenancy at will, terminable by a three months’ notice to quit, or a tenancy from year to year.
    3. Same — Termination—Lease.
    At the end of the second year of occupancy, the landlord had the right to terminate the tenancy without notice, and repossess himself of the premises, and did not, by delaying nearly a month, estop himself from proceeding to oust the occupants, in the absence of evidence of his express or implied consent to the continued possession.

      Error to Wayne; Donovan, J.
    Submitted April 18, 1910.
    (Docket No. 83.)
    Decided July 14, 1910.
    Summary proceedings by James Gault and another against Prank Gault and another for the possession of certain real estate. A judgment for complainants is reviewed by defendants on writ of error.
    Affirmed.

      Ari F. Woodruff and Frank W. Atkinson, for appellants.

      James H. Pound, for appellees.
   Ostrander, J.

There were negotiations between the parties for a lease of 77% acres of land for a term beginning April 1, 1907, and ending April 1, 1910, at a rental of $3 per acre per annum, payable $6.25 each month and the balance at the end of the year. It was agreed that a written lease, with these terms, should be executed. Defendants were at the time in possession. Plaintiffs and defendants each prepared a form of lease. The one prepared by defendants permitted them, at their option, to remain five years, and contained a provision that the landlord was to make certain repairs. No lease was executed. Plaintiff James Gault took away the form of lease which he had submitted and had left with defendants, saying, in substance, that defendants were on the farm without right. A notice to defendants, or to one of them, was served on August 25, 1907, stating that defendants were required to vacate the premises on April 1, 1908, to put in no fall crops, with the further statement that the extension of time to April 1, 1908, was made upon the express condition that the rent due should be paid, and that defendants “comply with all the terms of the agreement under which you rented said farm and personal property.” Another notice was given in September, 1907, requiring defendants to quit and surrender possession of the premises “ or pay us the rent now due for said premises.” In September, 1907, a suit in chancery was begun by plaintiffs, and from the decree entered in the cause an appeal was taken to this court, where the decree was reversed and the bill dismissed. Gault v. Gault, 158 Mich. 803 (122 N. W. 639). A notice to quit or pay rent was served June 6, 1908, proceedings pursuant thereto were begun before a circuit court commissioner to recover possession, and were ended by the payment of $243.50 on June 24, 1908, for which money plaintiff receipted as for rent to June 1, 1908. Thereafter rent at the rate of $6.25 per month was paid to February 1, 1909. No rent has since been paid.

The present proceeding was begun in April, 1909, without the serving of any other written notice, the complaint setting out, generally, that plaintiffs are landlords of the said premises and defendants tenants under them, who hold the premises unlawfully and against the rights of complainants. The commissioner on May 11, 1909, rendered a judgment of restitution. It does not appear from his return that he found any rent to be due or that he found the complainants entitled to the possession on account of the nonpayment of rent. In the affidavits for leave to appeal is to be found the statement that the commissioner entered a judgment against defendants for $162.25 rent, and a like statement is incorporated in the motion for leave to appeal. In the circuit court the jury was instructed to return a verdict of guilty, or not guilty, as they found certain facts to be. The judgment of the circuit court is one for restitution of the premises. We assume, therefore, that the proceeding was brought, not because rent was due and unpaid, but upon the theory that the tenancy, whatever its nature, had been determined, for which reason defendants were unlawfully in possession.

Appellants argue two propositions, stated in the brief as follows:

“First. That the circuit judge should have directed a verdict for the defendants for the reason that, under the agreement entered into between the parties, a tenancy from year to year was created, which tenancy was not terminated by the statutory notice of one year.
“ Second. That if there was a question of fact to be submitted to the jury, the conduct of the trial judge during the trial was such that defendants were deprived of a fair and impartial trial.”

It was a part of the agreement of the parties that a written lease was to be executed. This appears both by the testimony given in the case at bar, and by the pleadings in the chancery suit which has been referred to. It therefore is not the case of leasing land, by parol, for a period longer than a year. It is the case of a parol agreement to make a written lease for a term which could not he created by parol. The parties contemplated no such thing as an arrangement out of which would arise what is known to the law as a tenancy from year to year. Of the legal effect of letting defendants into possession under the circumstances stated, two things may be said. One is, that, upon the refusal of the defendants, if they did refuse, to execute a lease as agreed, the landlord might have immediately repossessed the premises. It would be a singular rule of right, and therefore a singular rule of law, which would permit defendants to build any right of continued occupancy upon their refusal to execute the contract agreed upon, to create a relation different from the one agreed to be created. And, whoever is responsible for the nonexecution of the lease, it is clear that defendants are not holding under any agreement, whether enforceable or not, for a term. The other is, that, the landlord, without taking proceedings to dispossess them or to compel (them to execute the lease agreed upon, notified them they might remain in possession for the period of one year, provided they paid rent, etc., in accordance with the oral agreement. It cannot be said there was a contract for leasing for a year. There was possession by the tenants and acquiescence therein by the landlord, upon terms mutually understood.

If it can be said that the landlord was by his action precluded from terminating the tenancy during the year, it gave defendants no right to remain longer than a year. The landlord, at the expiration of the year, took no action to dispossess defendants except by proceedings in which restitution could not be awarded if defendants paid the rent found to be due. Defendants paid and he accepted the rent due for the first year and thereafter to February, 1909. After the first notice, he gave no other written notice except such as demanded possession or rent, in the alternative. This conduct is inconsistent with the theory that the tenancy had been terminated by any notice, oral or written. It is consistent with the theory that defendants were holding over, by acquiescence of the landlord, after the first year. What, then, was the nature of the tenancy ? Unless the facts distinguish this case from Huyser v. Chase, 13 Mich. 98, it was a tenancy at will, determinable by a three months’ notice to quit. See, also, Schneider v. Lord, 62 Mich. 141, 142 (28 N. W. 773 ). The facts do distinguish the cases. There the premises were a house and lot on Woodward avenue, in Detroit; here a farm. In that case, it is true, an annual rent was reserved, but it was payable in equal monthly installments. Here an annual rent is reserved, but the greater part of it is payable at the end of the year. What the parties did during the first year, considered with what they had agreed the rent should be, was equivalent to a verbal stipulation for rent at an annual rate, payable, the most of it, at the termination of an annual period. The reasonable presumption is, in such a case, that if the tenant is permitted to hold over, he holds for the annual period. We are of opinion that the tenancy was not strictly a tenancy at will. Nor was it a tenancy from year to year. There was never a lease, parol or other, for a term of years. The rights of the parties rested upon conduct of the parties after the neglect or refusal to execute the written lease. The most that defendants can claim is that, if they held over after the expiration of an annual period, they were in for another annual period. They were liable to be dispossessed at the end of any year, without notice.

Plaintiffs expressly permitted defendants to occupy for one year. They acquiesced, as we have seen, in the occupancy for the second year. The third year began April 1, 1909, and on the 30th day of that month complaint was made. Ought the elapsing of this time to be held to entitle defendants to remain in possession for the period from April 1, 1909, to April 1, 1910? As we have seen, the question must be decided without reference to the original agreement for a term of three years. There was no consent of the landlord, express or implied, for continued occupancy, unless consent may be implied from the lapse of time. Often mere lapse of time may estop the landlord, as well as the tenant, to deny the further relation of landlord and tenant. In some cases, it may be a question of fact for the determination of a jury. In this case no one claims that plaintiffs consented, in fact, or could be induced to consent, to allow the defendants to remain any longer on the land. There was much feeling between the parties. In the chancery suit it had been determined and decreed in the court below that defendants’ rights expired March 31, 1909. It is the testimony of one of the defendants that in April, 1909, he “ was thrown off the farm.” We are of opinion that the undisputed evidence negatives consent, and that the court below should -have directed a verdict-of guilty to be returned. Being of this opinion, it is unnecessary to consider the second proposition of the appellants.

The judgment is affirmed.

Hooker, Moore, McAlvay, and Blair, JJ., concurred;


author: Hooker, J.

text:
    MACOMBER v. COTTRELL.
    Compromise and Settlement — Rescission for Fraud — Executors and Administrators.
    Complainant filed a bill in equity to vacate a compromise agreement made with the executor of his deceased sister’s husband, by which complainant released all claim to his sister’s estate as her heir at law, for the payment of a certain sum of money. The bill averred that the executor suppressed a certain account book, having entries showing the amount of money in the hands of deceased belonging to the sister. By the terms of the compromise it appeared that during the life of testator, complainant had made claim to his share of the sister’s estate, that the testator claimed the same by gift from his deceased wife, and finally conveyed certain real estate and canceled a certain note in settlement of the claim. The bill contained no averment that complainant was misled by misrepresentations of the facts. Held, that no case was made ■ for the interposition of equity.
    Appeal from Macomb; Ersbine, J.
    Submitted April 12, 1910.
    (Docket No. 64.)
    Decided July 14, 1910.
    Bill by Allen E. Macomber against George Cottrell and others, heirs at law of William Cottrell, deceased, to set aside an assignment of a claim, and for an accounting. From an order overruling a demurrer, defendants appeal.
    Reversed, and bill dismissed.

      Fred A. Baker (William S. Jenney and Harrison W. Geer, of counsel), for complainant.

      Stevenson, Carpenter & Butzel and James G. Tucker, for defendants.
   Hooker, J.

The bill in this case is filed by the complainant to establish his claim as heir of one Georgia Macomber Cottrell to a share of her estate, which he alleges to have gone into the hands of William Cottrell, her husband, who survived her, and for which, it is claimed, he never accounted. A demurrer to the bill was overruled, and defendants have appealed.

We must, of course, look at the bill and determine whether it states a case entitling complainant to relief. Briefly stated, the allegations are:

(1) Georgia Macomber Cottrell was the sister of the complainant, and wife of William Cottrell, who survived her. She died August 28, 1900.

(2) George Macomber gave large sums of money to his daughter, Georgia, which went into the hands of her husband, who had little money of his own when he married her. He suppressed the fact that he was handling her money and complainant was only recently informed of it.

(3) In 1877 George Macomber divided his property that Georgia then received between $75,000 and $100,000; that complainant knew of this at the time, but he did not know until recently that it passed into the control of William Cottrell, or of the increase thereof, facts carefully suppressed by Cottrell.

(4) March 28, 1901, the Detroit Trust Company was appointed administrator of Georgia Cottrell, at the instance of William Cottrell. The inventory amounted to $137.15. William Cottrell at that time suppressed the facts that he held in his own name and control a large estate belonging to Georgia, amounting to $312,000 and upwards.

(6) On July 3d, William Cottrell, still suppressing said facts and • concealing them from complainant, obtained from him and his wife an assignment of all their right, title, and interest in and to any and all of the estate and property of which Georgia Cottrell died seised, which assignment recited that it was the design to convey to him all interest of the assignors in the estate of Georgia Cottrell, and for this William Cottrell paid the sum of $55,000.

(7) William Cottrell thereafter caused the Trust Company to turn over to him the estate of $137.15, and to report that he was the owner as heir and assignee, and an order was made discharging the administrator and canceling its bonds.

(8) William Cottrell continued to suppress said facts until he died, August 11, 1907, at which time Georgia’s estate had increased to $700,000, and William Cottrell’s own books showed that on January 1, 1907,- the estate of Georgia in his hands was of the value of $445,000.

(9) Joseph Wolford was appointed executor of William Cottrell, and the appraised value of the estate was $858,855.59.

(10) Wolford, as executor, came into possession of the books and papers of Cottrell, and among them was an account book, containing an account wholly in Cottrell’s handwriting, of which the following is a copy:

Greenville, Mich., January 1, 1878. Mortg. Securities Inventory.
Jan. 1, 1878, I find in good securities...........$87,728 00
•That my wife, Georgia, has____________________ 78,000 00
$165,728 00
Jan. 18, 1879, I find our joint property increased to____________________________________ 184,188 00
Increase $23,429.
Jan. 1,1880,1 find an increase of $10,000, the past year having been a poor one in my business.- 194,000 00
Jan. 1, 1881, I find, besides all expenses________ 219,026 00
Jan. 1, 1882, I find, being now in Lansing______ 241,642 00
Jan. 1,1883,1 find two hundred fifty-seven thousand seven hundred and twenty-eight dollars. 257,728 00
Jan. 1, 1884,1 find two hundred and sixty-nine thousand four hundred and forty dollars, also house and lot________________________________ 269,440 00
Horses and buggies worth..................... 5,000 00
$274,440 00
Jan. 1, 1885, I find two hundred and ninety-two thousand one hundred and forty-one dollars.. 292,141 00
Jan. 1, 1886, I find three hundred and three thousand two hundred and thirty-five________ 303,235 00
Also house and lot, horses and buggies $10,000.. 10,000 00
$313,235 00
Jan. 1, 1887, I find three hundred and twenty-two thousand seven hundred and eleven dollars .............A.._______________________ 322,711 09
Also house and lot, horses and buggies worth.. 10,000 00
$332,711 00
Jan, 1, 1888,1 find three hundred and thirty-two thousand nine hundred and thirty-nine dollars ......................................... 332,939 00
Also Belvedere farm ______________$8,000 00
House and lot, horses and buggies---- 9,000 00 $17,000 00
$349,939 00
Jan. 1,1889,1 find three hundred and fifty-five thousand eight hundred and ninety-one dollars ................................-...... 355,891 00
Also Belvedere farm.................$7,000 00
House and lot________________________ 3,000 00
Black mare.......................... 2,500 00
• 12,500 00
$368,391 00
Jan. 1, 1890, I find three hundred and ninety-one thousand nine hundred and fifty-five dollars..........................-....... $391,955 00
Jan. 1, 1891, I find mortgages______$362,613 00
Notes.............................. 23,638 00
Contracts_________________________. 16,859 00
Belvidere _________________________ 8,000 00
House and lot...................... 4,000 00
Lot, Greenville.................... 1,200 00
Black.....-........................ 3,000 00
Roan mare.....-................... 2,000 00
$421,310 00
Securities.
Jan. 1,1892,1 find mortgages_______$372,784 33
Contracts-............ 16,825 84
Notes and bank stock ________ 29,538 68
Belvidere farm_____________ 12,000 00
House and lot....................... 4,000 00
Cash...-............... 8,099 57
Black mare....................... 3,000 00
Roan mare........... 2,000 00
$448,248 43
Jan. 1, 1893, I find mortgages______$372,014 49
Certificates................... 26,265 00
Contracts___________ 15,966 18
Notes.............................. 27,544 42
Cash..............................- 5,000 00
Belvidere__________________________ 12,000 00
Campbell house and lot............. 6,000 00
Phelps house............ 1,200 00
Residence, Sear................. 10,000 00
House.................-........... 1,000 00
Switzer mortgage.-................ $805 33
Goetz lot___________________________ 3,700 00
$481,495 42
Jan. 1, 1894, mortgages........ $399,176 36
Notes and certificates______________ 60,950 -26
Belvidere farms.___________________ 12,000 00
Campbell house and lot............ 6,000 00
Goetz lot................... — ..... 3,700 00
Phelps lot......................... 1,200 00
Home -........................... 15,000 00
Cash.'.................... 1,000 00
$499,026 62
Jan. 1, 1895, mortgages............ $414,776 00
Contracts......'.................... 9,985 00
Farms and rented houses........... 30,200 00
Bank stock........................ 2.500 00
Certificates........................ 9,284 00
Deposits........................... 1,800 00
Moran farm........................ 4.500 00
Dayton farm-----------------------4,000 00
Notes, $24,264; residence, $15,000 .. 39,864 00
$515,909 00
Jan. 1, 1898, mortgages......... .$425,930 00
Real estate......................... 97,209 00
Notes...................... 36,533 00
Bank stock and notes.............. 9,000 00
Contracts_________ 42,980 00
Chattel mortgages................. 3,516 00
$615,168 00
Jan. 1, 1899, mortgages............$434,754 00
Real estate------------------------ 99,500 00
Certificates deposit............... 31,447 00
Notes and bonds................... 26,21100
Contracts........................ 38,960 00
Deposits .................... 5,372 00
New Haven farm................ 2,500 00
$638,744 00
Jan. 1,1900, mortgages_____________$489,971 00
Real estate......... 106,600 00
Notes........................ 24,265 00
Contracts-.................... 40,710 00
Certificate deposit........... 16,300 00
Bank stock...................... 5,000 00
School bond............... 300 00
Deposit, Mt. Clemens........ 1,000 00
Deposit, Lansing................... 3,000 00
$687,146 00
Jan. 1, 1896, mortgages............$425,111 00
Contracts__________________________ 26,900 00
Farms and rented houses........... 32,500 00
Notes..................... 25,853 00
Harrison note-'..................... 7,000 00
Residence.................. 15,000 00
Mortgages foreclosed, Wm. Jenney. 2,000 00
Mortgages foreclosed, C. Schutt____ 2,500 00
Mortgages foreclosed, B. B. Crawford 5,800 00
Mortgages foreclosed, F. S. Spencer. 1,300 00
Lansing cash....................... 2,000 00
Jenney decree..................... 3,000 00
--$548,964 00
Jan. 1, 1897, mortgages.............$414,004 00
Property acquired by purchase and foreclosure-................ 60,000 00
Phelps contract.............. 700 00
Bank certificate........... 9,049 00
Notes................ 22,766 00
Bank stock ........................ 2,000 00
Goetz house........ 3,000 00
Campbell house.............. 4,000 00
New Haven farm............... 2,500 00
Residence._____________ 15,000 00
Belvidere.......................... 12,000 00
Barron block........... 21,000 00
--$566,019 00
Mortgages January 1, 1901, and Other Securities.
Mortgages ..................... $508,100 00
Real estate................ 57,800 00
Notes................... 24,926 00
Contracts ..................................... 38,605 00
Certificates deposits........................... 10,660 00
Bank stock.................................... 5,000 00
Deposit, Clemens........... 6,476 00
Deposit, Lansing.___________________ 4,000 00
School bond.................. 250 00
Deposit Lakeview................. 500 00
Geo. Ferris mortgage......... 2,100 00
Joe Wilson mortgage, other notes........ 5,160 00
$665,077 00
Dec. 25, gave to Richard Cottrell farm at New Haven, Mich., of 55 acres, worth............. $3,500 00
July 1, 1901, gave to George Macomber, Lake-view, Mich., in good real estate and cheap at valuation...................................$35,000 00
July 1, 1901, gave to Nora Macomber Miller of Greenville, Mich., in good real estate at low valuation, farms__________:.................. 35,000 00
July 1, 1901, gave to Allen Macomber, in his own note, $5,000 and int. on same $35........ 5,035 00
July 1, 1901, to Joe Clark and Allor attorneys, paid.....................-.................. 1,000 00
Sept. 13,1905, gave to Brother John Cottrell, 300 acres of farming land, Belvidere, Mich., worth (with good buildings and fences, well ditched) 13,000 00
$71,535 00
Dec. 30, 1900, deeded to Elmer L. Allor lots in Greenfield township, city of Detroit, being lots 43 to 50, both inclusive, of Ivanhoe, Smith, and Mathews’ subdivision of lot 3 of Dickison’s subdivision of part of the east half of the S. W. quarter of section 3, township 1, range 11 East, worth at least $150 per lot-................... $1,350 00
Jan. 30, 1903, to E. L. Allor, wedding present, assignment of Mulvey mortgage, on Detroit property, assignment to him and wife jointly, mortgage of Mary and Martha Mulvey........ 661 00
To Allor.-...................................$3,011 00
Brought down from above.................. 71,535 00
$73,546 00
Jan. 8, 1903, to Brother John Cottrell, discharge of mortgage on his farm, mortgage of date Jan. 8, 1883, $1,000, 7 per cent, interest annually, nothing paid figures.................... $3,700 00
Gave Jack his notes in 1887.................... 400 00
Gave Dick his notes in 1903 and 1904........... 450 00
$78,096 00
Find Securities Jan. T, 1903.
Jan. 1, 1903, find mortgs.......................$543,634 00
Bank deposit.......-.....-..................... 47,999 00
Real estate .................................... 56,100 00
Contracts............ 33,550 00
Notes............... 18,859 00
New Baltimore contract__________ 4,500 00
Bank stock............................ 5,000 00
$697,633 00
Jan. 1, 1903, find mortgs......-......-.........$591,128 00
Land contracts--------------------- 16,791 00
Real estate____________________________________ 55,900 00
Notes_________________________________________ 16,863 00
Bank stock____________________________________ 5,000 00
Deposit Lakeview_____________________________ . 800 00
Deposit Lansing______________________________- 5,000 00
Deposit Mt. Clemens_________________ 31,000 00
Duncan mortg_____________________ 5,500 00
Lydia Mosher note_______________________ 1,500 00
Richard Loose mortg.................-......... 1,000 00
Anna Parker mortg............ 2,000 00
Geo. Lovely mortg. ______ 945 00
Davenport House, Lansing..................... 1,700 00
$735,127 00
Jan. 1, 1904, find in mortgs....................$639,675 00
In notes___________________________ 21,684 00
Land contracts.................... 20,225 00
Real Estate________________________ 50,200 00
Frederick farm................ 2,000 00
Smith House, Three Rivers, Mich.-- 4,500 00
Foreclosed mortgs....... — .......- 3,183 00
Deposit Lansing................... 3,487 00
Deposit Mt. Clemens_______________ 24,000 00
Bank stock......................... 5,000 00
$773,954 00
Jan. 1, 1905, find in mortgs_____________________$716,886 00
Notes........-.................... 19,295 00
Land contracts.................... 14,985 00
Real estate______________ 52,062 00
Foreclosed mortgs. subject to redemption________________________ 8,900 00
Deposit Lansing................... 1,750 00
Deposit Lakeview_________________ 800 00
Deposit Mt. Clemens............... 7,590 00
Bank stock________________________ 5,000 00
Note E. A. Alvord, Detroit......... 225 00
$826,493 00
Jan. 1, 1905.
Jan. 1, 1906, find in mortgs. ....$764,310 00
Land contracts .... 22,026 00
Real estate____ .... 26,000 00
Notes_________ .... 17,056 00
Mortgs. foreclosed, subject to redemption---------------- §11,710 00
J. R. Trufant, mortg. foreclosed____ 8,043 00
Loans in transit to Lansing........ 3,300 00
J. W. Wolford........... 3,500 00
Bank stock....................... 5,000 00
Deposit Mt. Clemens______________ 8,500 00
Deposit Greenville................. 300 00
Lakeview ....,.............. 340 00
Notes and dividends and int. on deposit -.........-.................. 3,515 00
§861,399 00
Jan. 1, 1906.
Inventory List, Jan. 1, 1907.
Jan. 1, 1907, mortgs..___________________ .§811,630 00
3 Sbeahan mortgs. foreclosed...... 4,010 00
Lonsby mortg. foreclosed.......... 18,000 00
Real estate........................ 33,100 00
Land contracts_________ 16,307 00
Notes_________________ 15,976 00
Deposit Clemens_______________ 38,041 00
Mortg. in transit to Lansing_______ 8,800 00
$934,764 00
Rind Jan. 1, ’07.

We have thought best to print this entire account, as it appears to be the foundation of this proceeding. Complainant claims in the bill that Georgia owned something over one-half of the same.

(11) Complainant filed a claim in probate court for the allowance of $250,000, which he claimed as heir of Georgia. This claim was disallowed by the commissioners, and complainant took and perfected an appeal; that pending such appeal a compromise agreement was made in writing and this was approved by the probate judge, and an order entered authorizing the executor to pay complainant, and he did pay him the sum of $30,000, in full settlement of the claim, under such order. The probate proceedings and the settlement agreement are set out in the bill at length.

(12) While the claim was pending before the commissioners on claims, complainant-repeatedly applied to and requested Wolford for information within his knowledge concerning the interest of Georgia in the estate of William Cottrell and the validity of complainant’s claim as her heir, and particularly requested him to disclose any facts within his knowledge or information which would support said claim, but “said Wolford misapprehending and being unmindful of his duties and obligations” as executor refused to give any information whatever, and Wolford withheld and suppressed all information concerning said account book, and that complainant signed the compromise agreement “without any knowledge or information concerning the disposition the said Georgia Macomber Cottrell had made of the securities, money, and property she had received from her father, and without any knowledge or information of the fact that she had placed, or permitted her husband to place, her estate in his name and control to be held by him commingled with his own property as the joint property of her, the said Georgia Macomber Cottrell, and said William Cottrell, as husband and wife, as is fully disclosed by said book account in the handwriting of said William Cottrell, so fraudulently and wrongfully suppressed from your orator by said Joseph W. Wolford; that he also withheld and suppressed from your orator the fact that the accumulations and increase of the estate of said Georgia Ma-comber Cottrell from January 1, 1878, to January 1, 1907, had been very large, and that on the basis fixed by the account of said William Cottrell of the joint property of himself and wife, her estate or interest January 1, 1907, was of the value of $445,240 and upwards; that by this fraudulent suppression of the facts your orator was induced to sign and deliver said compromise agreement; that if your orator had had any knowledge of said book account in the handwriting of said William Cottrell, he never would have entered into said compromise agreement.”

(13) That after the payment of said $30,000 to complainant, Wolford disclosed said book account by producing it at the hearing of a petition filed by him regarding the payment of legacies. This petition is also set forth in the bill.

(14) On the hearing of said petition complainant first saw said account book.

(15) A petition for an administrator de bonis non, with a view to the filing of a bill in chancery for an accounting, was made and dismissed upon motion; the probate court declining to hear evidence. An appeal has been taken from the order of dismissal and it is now pending in the circuit court.

(17) Complainant offers to pay the sum received in settlements into court, to abide its order.

The bill prays:

(1) The appointment of an administrator de bonis non, who shall be permitted to become complainant in this case.

(2) That the executors and heirs of William Cottrell be required to account, and the amount due from the estate of W illiam to the estate of Georgia be determined and payment enforced.

(3, 4) That the assignment of July 3, 1901, and agreement of January 18, 1909, be set aside and complainant restored to all his rights as heir of Georgia Cottrell.

(5, 6) That the court take control and possession of the estates of William Cottrell and Georgia Cottrell by a receiver and administer and distribute both estates.

(7) General relief.

It is manifest from the foregoing that the only claim made in the bill as a ground for reopening this controversy is the alleged fraudulent suppression of the book account, but for which the assignment and compromise would preclude relief. The gist of the claim is that the two settlements should be reopened, because Wolford, administrator of Cottrell, did not disclose to a claimant evidence which claimant now asserts would have established his claim, had he known of and been able to produce it. It goes without saying that if the administrator of Cottrell had possession of a fund belonging to Georgia, justice demanded that he account, and pay over such sum as should be allowed. Such a claim was made by the complainant while Cottrell was alive, and suit was begun or threatened, and the matter was adjusted and settled upon the claim that Georgia had, prior to her death, transferred her property to William Cottrell by way of gift, and $55,000 was the price at which William Cottrell bought his peace, in July, 1901, and obtained a broad and comprehensive assignment of all complainant’s interest in Georgia Cottrell’s estate. If this claim was untrue, and was believed by complainant, and was the inducement by which he was led to compromise his claim, it might perhaps be renewed and a bill might lie for rescission and to cancel his assignment in a proper case.

Cottrell died in August, 1907. Complainant thereupon filed a claim for a share of Cottrell’s estate, upon the ground that it comprised a portion of property that belonged to Georgia at the time of her death, notwithstanding the fact that he had compromised the claim and assigned all of his interest to Cottrell. The petition does not appear to have been dated, signed by complainant, or sworn to by any one. It was made by his “ attorney in fact ” and sets up the assignment, and states-

“ That about this time your petitioner made a claim upon the said William Cottrell for one-half of said estate as the heir at law of the said Georgiana Cottrell, but the said William Cottrell represented to your petitioner that she had practically no estate; that the negotiations with the said Cottrell continued over several weeks, Mr. Cottrell contending that his wife left no estate, but finally stated to your petitioner that he desired to present to each of the daughters of your petitioner, namely, Nora Miller and Georgia Macomber, certain property valued, as he claimed, at about $50,000, and stated that if your petitioner would make and execute an assignment to him of all his right, title, and interest to any and all estate and property of which the said Georgiana Cottrell died seised, that he would convey to your said petitioner’s two daughters the property aforementioned, and your petitioner thereupon did make and execute and deliver to the said William Cottrell an assignment in due form of all the right, title, and interest in said estate, and the said Cottrell thereupon did convey and transfer to the said Nora Miller and Georgia Macomber certain real estate claimed by said Cottrell to be worth $50,000, but as your petitioner is informed and believes and charges the truth to be, was worth much less than that.
“ Your petitioner further shows that he is informed and believes and charges the truth to be that the statements of the said William Cottrell, to the effect that the said Georgiana Cottrell died without any estate, were false and were made for the purpose of defrauding and defeating your petitioner from recovering his proportion of said estate and for the purpose of obtaining from your petitioner an assignment of all your petitioner’s right and interest in and to said estate, but that, on the contrary, the said estate did amount to some $100,000 and upwards, all of which was unknown to your petitioner.”

It is noticeable that this petition made by his attorney, and set up in the bill, does not contain the allegation that complainant ever believed Cottrell’s statements, and made the compromise in the bona fide belief that they were true. We have no means of knowing how much proof was taken or what trial of the real merits was had before the commissioners, and it does not matter, as this question before us must turn on the allegations of the bill. The claimant was defeated, and appealed. In January, 1909, an agreement was made which appears in the bill. We incorporate it entire in this opinion.

“ Agreement entered into this 18th day of January, A. D. 1909, between Allen E. Macomber, Lake View, Montcalm county, Michigan, party of the first part, and Richard Cottrell, George Cottrell, John Cottrell, Copley Cottrell, Mary Watt, David Boyd, and John Boyd, heirs at law and distributees of William Cottrell, deceased, of the second part, and Joseph W. Wolford, as executor of the will of said William Cottrell, of the third part; Mary L. Cottrell, widow of said deceased, consenting thereto.
“ Witnesseth:
“Whereas, George Macomber died in the year 1880, leaving surviving him two children as his sole heirs at law, namely, Allen E. Macomber, party of the first part, and Georgiana Macomber Cottrell, then wife of said William Cottrell, now also deceased, and
“ Whereas, prior to the decease of said George Macomber he transferred and conveyed to each of his said children by way of distributing his estate, a large amount of property consisting of money, mortgages, and real estate, and
“Whereas, the portion so transferred and conveyed by the said George Macomber to his daughter, Georgiana Macomber Cottrell, amounted in value to $100,000, or upwards, and became and was received by her as her sole and separate property and estate; and
“Whereas, the said Georgiana Macomber Cottrell, upon receiving such property, committed the care, management, and investment of the same to her husband, William Cottrell, now deceased, and he took upon himself the care, management, and investment of the same for her benefit; and
“Whereas, for a time after the receipt of said property by the said Georgiana Cottrell, it was invested in her name, but later intermingled by the said William Cottrell with his own moneys, and with the profits and proceeds thereof was invested and from time to time reinvested in his own name, and so remained at the death of said Georgiana Cottrell on the 28th day of August, 1900, and still so remained at the time of his death on the 7th day of August, 1907, and yet remains as a part of his estate; and
“Whereas, administration of the estate of said Georgiana Cottrell was had in the county of Macomb, in this State, upon a petition of her husband, William Cottrell, wherein such estate was given as of the value of |100 and upwards, and in which procedings the said estate was appraised at the sum of $127, or thereabouts; and
“Whereas, during the pendency of such administration in consideration of certain real estate conveyed by said William Cottrell to the daughters of said Macomber, and in further consideration of a certain note for five thousand ($5,000) dollars made by Macomber and Bale, surrendered by said Cottrell to said Macomber, the said Allen Macomber, by an instrument in writing, bearing date July 3, 1901, sold, assigned, transferred, set over, released and conveyed to the said William Cottrell all his right, title, and interest in and to any and all of the estate, real and personal, of every kind and character, wherever situated of the said Georgiana Cottrell, deceased, which assignment or a true copy thereof was filed in the office of the judge of probate of Macomb county, as a file and record in the estate of said Georgiana Cottrell; and
“Whereas, afterwards and during the year last aforesaid an order based upon said assignment was made and entered in the matter of said estate of Georgiana Cottrell by said probate court, declaring the said William Cottrell sole heir at law and distributee of said Georgiana Cottrell, and assigning all of her said estate to the said William Cottrell; and
“Whereas, the said William Cottrell at the time of his death, on August 7, 1907, remained and was in possession and control of the property so received by his late wife, the said Georgiana Cottrell, from her father and of the proceeds and profits thereof, claiming the same as his own property; and
“Whereas, the said Allen Macomber now claims that the said William Cottrell, so obtained and received from him the assignment by falsely and fraudulently representing to him, the said Allen Macomber, that the said Georgiana Cottrell had, prior to her death, transferred her said property to him, the said Cottrell, by way of gift, and that she had no property or estate at the time of her death, and that he, the said Macomber, made and delivered the said assignment to the said Cottrell, relying upon and believing such false and fraudulent settlement; and
“ Whereas, the said Macomber now asserts and alleges that the said William Cottrell always held, managed, and controlled said property, as the property of said Georgiana Cottrell and in trust for her, and that the same remained and was her property at the time of her death, and that his said representations as to gift were false and untrue; and that such property amounted in value at the time of her death to the sum of $400,000 and upwards, and at the time of his death to $500,000 and upwards; and
“Whereas, inasmuch as the said Georgiana Cottrell died intestate and without issue, the said Allen Macomber now asserts that he, as her sole heir and next of kin, was at the time of her death and is now, entitled to one-half of her estate and property so held in the possession of William Cottrell; and that said assignment so made by him ought to be set aside and held for naught; and
“Whereas, he also claims that he is legally entitled to damage from the estate of said William Cottrell for the fraud and deceit so alleged by him to have been practiced by the said William Cottrell; and
“Whereas, the said Allen Macomber asserts and alleges that in his judgment and belief he has, and is, in possession of and can produce before the proper tribunals, ample and sufficient legal evidence to maintain all of his claims and assertions aforesaid, and to procure said assignment to be set aside, and to prove the amount and value of the estate of said Georgiana Cottrell as aforesaid, and to establish said trust, and to obtain and maintain a judgment or decree awarding him the one-half of her said estate, and to procure a judgment, decree, or award in his favor and against the estate of said William Cottrell for the aforesaid fraud and deceit; and
“Whereas, the said Allen Macomber- filed before the commissioners on claims, in the matter of the estate of said William Cottrell, a claim for his alleged share of the said estate of said Georgiana Cottrell, or for damages for said fraud and deceit, or both, which claim was rejected by said commissioners, and is now pending on appeal in the circuit court for Macomb county; but
“ Whereas, there exists a question of law as to whether the said Allen Macomber, party of the first part hereto, can prosecute his claim against the estate of William Cottrell in the manner now attempted, as aforesaid, or whether it may be necessary to file a bill in equity to set aside said assignment and for an accounting; or to procure the reopening of the estate of Georgiana Cottrell and the filing of such bill by her personal representative; and
“Whereas, there is in prospect long litigation before the party of the first part can recover what he claims to be equitably entitled to as heir at law and distributee of his sister, said Georgiana Cottrell, deceased, or damages for such alleged fraud and deceit; and
“Whereas, other difficulties and uncertainties may inconvenience, delay, or prevent recovery by the party of the first part of what he claims to be equitably or legally entitled to from or against the estate of said William Cottrell, deceased, he has, in consideration of such facts and situation, made a proposal to the parties of the second part to compromise and settle for the sum of thirty thousand ($30,000) dollars any and all claims which he has asserted, or may, or might assert against the estate of said William Cottrell, deceased, either directly or through the estate of Georgiana Cottrell, and all claim that he has, or might assert to or against the estate of Georgiana Cottrell or any part thereof, and to ratify and confirm in all respects the assignment heretofore made by him to the said William Cottrell.
“Wherefore the parties hereto have and do hereby agree as follows:
“ ‘ First: The party of the first part hereto, in consideration of the premises and the promises of the parties of the second part, hereinafter set forth, has promised and agreed, and does hereby promise and agree to and with other parties hereto, that he will accept and receive the said sum of thirty thousand ($30,000) dollars, of and from said parties or either or any of them, if paid or tendered to him, or to his attorney or attorneys, within 30 days from the date hereof, in full payment, satisfaction, and discharge of any, all, and every claim which he has asserted or can, could, or might assert, against the estate of said William Cottrell, deceased, either personally or directly, or indirectly, through the estate of Georgiana Cottrell, or her personal representative; and in full payment for all his interest or asserted interest in or to the estate of said Georgiana Cottrell, deceased; and that upon such payment to him, or his attorney, or attorneys, of the sum of thirty thousand ($30,000) dollars within said 30 days from the date hereof, he will fully release and discharge the estate of said William Cottrell, and the executor thereof, of and from every claim and demand which he has or might assert against them, or either of them, either directly or indirectly, as heir and distributee of said Georgiana Cottrell, and that he will ratify and confirm the aforesaid assignment of July 3, 1901, to William Cottrell in all respects and will discontinue his aforesaid claim now pending on appeal in said circuit court without costs, and will execute and deliver to said parties and each of them, such further assurance in the premises as they or either of them may reasonably demand.
1 Second: The parties of the second part, in consideration of the premises and the promises of the party of the first part, hereinbefore set forth, promise and agree that by and with the consent of Mary L. Cottrell, the widow of said William Cottrell, deceased, and of his executor and of the probate court of Macomb county, to be obtained, the said sum of thirty thousand ($30,000) dollars, shall be paid to said first party out of the intestate portion of the estate of said William Cottrell, within 30 days from the date hereof and they unite in a request to said executor that he make application to said probate court for leave to effect such compromise, and if permission is granted by said court, that he make such payment as aforesaid.
‘ ‘ ‘ Third: And the said Joseph W. Wolford, not having advised or requested such settlement, but consenting to the request of the parties of the first and second part, and in consideration of the premises herein set forth, and of the benefits accruing to the estate for such a settlement and adjustment, does hereby as such executor, promise and agree to petition said probate court for leave to make the settlement aforesaid, on the terms aforesaid, and if he shall be authorized so to do by said court, and if said Mary L. Cottrell, widow as aforesaid, shall consent thereto in writing, that he will pay on or before said 80 days from the date hereof, to said party of the first part, the said sum of thirty thousand ($30,000) dollars out of the intestate portion of said estate for the purposes and to the ends aforesaid.’
“ It being understood by all parties that this agreement is made and entered into for the purpose of securing relief from prosecution or defense of existing litigation, and from the prosecution and defense of any and all litigation of any and every kind that might possibly be instituted by the party of the first part, directly or indirectly, against the estate of said William Cottrell, or to recover any portion of or interest in the estate of said Georgiana Cottrell.
“In witness whereof, the parties hereto have hereunto set their hands and seals and executed this agreement in triplicate, the day and year first above written.”

The fraud now alleged consists of the failure of Wolford to divulge to complainant the account hereinbefore set forth, and nothing else. This account is at most evidence that at the time of Cottrell’s death he had in his possession certain property of his deceased wife, and the amount, and that Cottrell had falsified and fraudulently obtained a compromise. It is doubtful if even this can be properly said. It is contended that the first item indicates that he then had her property and that the presumption is that it continued hers, as the account does not expressly state the contrary. We do not feel so sure of this. Never afterward was the property mentioned in the statement, separated. This is at most an admission of Cottrell. He might have separated the securities in the way he did, and yet have had the right to claim them as a gift, but grant that he did not, the whole admission must be taken together. The parties were childless and it is not so very unnatural that at some time later the wife should have given this property to her husband, who was clearly competent to preserve property. But, aside from these considerations, we have stated all that can be claimed for this testimony, viz.,.that Cottrell had it; that it was Georgia’s when she died; the amount thereof; and that he falsified about it when the first settlement was made, thereby inducing its acceptance.

Now, that complainant knew all of these things (except perhaps the amount) when he settled the second time, is placed beyond dispute by the agreement made. It states the fact that Cottrell had his wife’s property; that it was hers when she died (and consequently it had not been given to him); that he obtained the assignment by falsehood and fraud. Knowing all of these things, and stating that he believed he could prove them, and desiring to avoid a question of law as to procedure, and contemplating the possibility of a necessity for the filing of a bill in equity, and the prospect of long litigation which he desired to avoid, the complainant agreed to and did take $30,000 more to settle the controversy. All of this appears in the bill, and if ever a claim in litigation can be called settled, it would seem that the facts as stated in this bill accomplish it. We are of the opinion that the bill is without equity. It fails to state a case.

The decree is reversed and the demurrer sustained, and the bill dismissed with costs of both courts.

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


author: Per Curiam.

text:
      In re VETTER’S ESTATE.
    Appeal and Error — Probate Appeals — Record—Contents.
    The record of an appeal to circuit from probate court, uncertified by the circuit judge, showing no entry of judgment, is not in condition for hearing in the Supreme Court.

      Error to Berrien; Coolidge, J.
    Submitted April 13, 1910.
    (Docket No. 78.)
    Decided July 14, 1910.
    Nellie M. Roesing filed a petition as guardian of the estate of William A. Yetter, a minor, to require the executors of the estate of George Covell, a deceased guardian of the infant, to pay over funds to the petitioner.
    The petition was denied in the probate court, and she appealed to the circuit court, where an opinion was filed denying the petition, but no judgment entered.

      Alfred J. Parker\ for appellant.

      William H. Andrews, for appellee.
   Per Curiam.

This proceeding is brought here by writ of error. We have before us what purports to be a record. It has never been certified to this court in any form by the trial judge, nor has a judgment ever been' entered.

The case is not ip a condition to be heard


author: McAlvay, J.

text:
    PRIEBE v. TOWNSHIP OF MOORLAND.
    1. Bridges — Contributory Negligence — Knowledge of Danger-Insufficient Railing.
    The question of contributory negligence in failing to take another road, or to lead his team, is one of fact, where, in crossing a bridge which plaintiff knew had no sufficient railing, one of his companions, who was driving, guided the horses off the edge, in the darkness.
    3. Damages — Sufficiency of Evidence — Medical Services.
    The damages for physicians’ services and for the value of groceries lost in driving off the bridge were properly left to the jury, under evidence showing approximately the respective, amounts.

      Error to Muskegon; Sessions, J.
    Submitted April 12, 1910.
    (Docket No. 67.)
    Decided July 14, 1910.
    Case by Ferdinand A. Priebe against 'the township of Moorland for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Stephen H. Clink, for appellant.

      James E. Sullivan and B. J. Macdonald, for appellee.
   McAlvay, J.

This case is before this court upon writ of error to- review a judgment obtained by plaintiff for personal injuries received, and property lost, by driving off from a certain bridge in a public highway over a ditch in said township, on a very dark night," through the failure of defendant township to maintain such bridge in a reasonably safe and fit condition for travel, and particularly because no railing or guards were maintained on the bridge.

Early in the morning of the day he was injured, plaintiff, who was 38 years of age, started from his farm in company with his brother-in-law, aged 25 years, and Charles Erickson, of the same age, with his team and wagon to drive a long distance for the purpose of attending an auction sale three miles east of Ravenna village. It was a gentle team, 9 and 10 years old. The near (left-hand) horse was blind. Ravenna was the village where plaintiff did his trading and was a distance of 6£ miles beyond the bridge in question. In going to this sale that morning he had taken this highway and crossed over tbi« bridge. The day was cold and rainy. He remained at the sale until 3 o’clock in the afternoon, when, in company with the two young men mentioned, he started to return. He had purchased 25 chickens at the sale which were in a box in the wagon. He stopped at Ravenna and purchased some groceries to the amount of about #20, and then went to a saloon where the coats of the party were dried by the stove. The weather was cold and it was, part of the time, raining hard. They remained there about an hour and the record indicates that they each had two or three drinks. The testimony is that they did not drink on the way home afterwards. They started from Ravenna about 5 o’clock with the chickens, groceries, a jug of whisky and some beer in the wagon. On account of the cold and rain they from time to time changed drivers during the 6£ miles to the bridge; each of them driving part of the way. At the time they came to the bridge Erickson was driving. His statement is that he was a careful driver; that it was dark; that he kept the road all right until he heard the horses’ feet strike the bridge.

“As I struck the bridge Mr. Priebe says to me: ‘Look out, you are right on the edge of the bridge,’ he says. ‘ Haw over5 (turn to the left). He had no more than said that before we were over on the left-hand side in the ditch.”

The record shows that they could not see the road or the bridge, but could sometimes see the water alongside of the road. The approaches and the bridge are altogether 49 feet in length. The ditch under the bridge is about 18 feet wide with the water 3 feet deep. Side ditches at the north end of the bridge opened into the main ditch. The team fell into the smaller ditch. The wagon was bottom-side up in the main ditch with plaintiff under it; his head just above water. Erickson, by jumping, when they were going over, caught the bank of the ditch and climbed out. He then helped the other man and together they got plaintiff out from under the wagon. Erickson then ran for help to the next house, and when be returned the horses were gotten out. In the accident plaintiff’s arm was broken at the elbow and is stiff. The testimony of the physician who treated him shows that the injury is permanent. Plaintiff had lived in the locality but one month. He testified that he knew the condition of the bridge.

Two errors are assigned and relied upon, as follows:

(1) That the court should have directed a verdict for defendant on the ground of contributory negligence.

(2) That the court should not have permitted the jury to find damages on account of groceries lost, and for doctor’s bill paid because the proofs were too indefinite.

The first proposition is based upon the knowledge of plaintiff of the condition of the bridge for some time before the accident, and the claim that his conduct as shown by his testimony was negligent. It is urged that he did not use even ordinary care, when the law required him with his knowledge of the danger to use extraordinary care. Defendant insists that, because plaintiff did not take some other road home, or, having taken this road, did not get out and go ahead of his team, he was guilty of contributory negligence as a matter of law. We are not prepared to say that there was no question of fact for the jury upon the contributory negligence of plaintiff. In the case of Benedict v. City of Port Huron, 124 Mich. 600 (83 N. W. 614), the latest case cited and relied on by defendant, this court approved the submission of the question of contributory negligence of plaintiff to the jury, in what would appear to be a stronger case in support of the defendant’s contention than the case at bar, where plaintiff’s d.ecedent on his wheel rode into the open draw of a bridge, with which he was perfectly familiar.

The charge of the learned circuit judge in the case at bar was at least as conservative as in the case last cited. He said, among other things, upon the matter of contributory negligence:

“He must satisfy you that he was exercising due care at the time of the alleged injury, and if want of due care on his part or on the part of the driver contributed in any degree to the injury he cannot recover, though it would not have occurred except for the neglect of the township in performing its duty in keeping the bridge reasonably safe and fit for travel. No matter how negligent you may find the township to have been, and no matter how defective you may find the bridge in question to have been, yet if the plaintiff was himself guilty of any negligence which contributed in any degree to his injury he cannot recover.
“It is the claim of defendant that this plaintiff had knowledge of the defective condition of this bridge, and if you find that he did have knowledge of its defective condition, then the duty devolved upon him to exercise a greater degree of care than he would have been called upon to exercise had he known nothing about the defective condition of the bridge. In other words, no man has a right to put himself in jeopardy, and if he does, he must exercise an amount of care and caution corresponding to the danger which he incurs. And in all cases before a plaintiff is entitled to recover in a case of this character he must have satisfied the jury by a fair preponderance of the evidence in the case that upon the occasion when he received his injury he was exercising due care, and such care as a reasonably prudent and cautious person would have exercised under the same or like circumstances.”

The court then proceeded to instruct the jury what it might consider in determining the case, giving at length and with great care each and every specific item of evidence in the case bearing upon the question, and covering the entire case. No other portion of this charge is questioned. We think that the question was properly submitted to the jury.

The second proposition is of a minor importance. It relates to the groceries lost, and doctor’s services paid. There was evidence in the case that the doctor’s bill was paid; that it was about $5.0; that plaintiff was treated by the doctor for about six weeks. The account was in the doctor’s books, but he had been called to testify without time to get it. The testimony of plaintiff was that he paid about $20 for these groceries. Both witnesses were cross-examined. Both of these items were properly submitted to the jury. We find no error in the case.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.