author: Hooker, J.

text:
    PEOPLE v. HIGGINS.
    1. Criminal Law—Homicide—Evidence.
    Evidence reviewed, and held sufficient, thougn circumstantial, to justify respondent’s conviction of murder.
    2. Same—Conduct on Arrest.
    Evidence of respondent’s conduct on being arrested for burglary is admissible on his trial for murder, where he did not know on what charge he was being apprehended.
    3. Same—Manuscript Story op Crime.
    A story in the handwriting of respondent, found among his effects several months after the commission of a murder for which he is on trial, and claimed to bear a close resemblance to the true narrative of the murder, is admissible in evidence as a circumstance in the case, though claimed by respondent to have been written prior to the murder.
    4. Same—Possession op Weapon.
    The fact that respondent owned and carried a revolver of the same caliber as that with which a murder was committed may be shown on his trial therefor.

      5. Same—Failure to Gall Witness.
    A-conviction of murder will not be reversed because of the failure of the prpsecution to call as a witness one of the physicians who participated in the autopsy, and who took the-bullet from deceased’s body, where all of the facts and circumstances were shown by the other witnesses present, and the omission was only brought to the attention of the court by a request for an acquittal.
    6. Same—Cross-Examination.
    The extent to which the cross-examination of a witness in a criminal case may be carried is largely within the discretion of the trial court.
    7. Same—Credibility of Respondent.
    It may be shown on the cross-examination of respondent in a murder case, as going .to his credibility, that he had been convicted of many atrocious crimes, and on his trials therefor-had denied his guilt.
    8. Same—Remarks of Rroseoutinu Attorney.
    A statement by the prosecuting attorney, in reply to a remark by respondent, “We ascertained that what you said to us was not true, ” which was at once condemned by the court, whereupon the prosecutor attempted to prove the truth of his statement by respondent, is not ground for reversal.
    Error to Lenawee; Chester, J.
    Submitted February 15, 1901.
    Decided July 2, 1901.
    John M. Higgins was convicted of murder in the first degree, and sentenced to imprisonment for life in the Stata prison at Jackson.
    Affirmed.

      Westerman & Wester-man, for appellant.

      J. N. Sampson, Prosecuting Attorney (John E. Bird, of counsel), for the people.
   Hooker, J.

On the night of April 16, 1897, a Dr.

Ladd, of Adrian, was shot and killed by a burglar, who was detected by him in his residence. The respondent was convicted of murder in the first degree, and the cause is before us on error.

An outline of the testimony tending to show his guilt is. as follows: Col. Avery, the supervisor of the First ward of the city in which the Ladd residence was situated, saw. him near the residence, when he went, on April 16th, to take Ladd’s assessment. Jennie King identified him as one who visited her at her home in Adrian the afternoon before the homicide. She stated that he left there towards evening. Edward O’Hearn, an old prison acquaintance, .saw. him soon after, and walked with him to the corners near Ladd’s house, about 7 p. m., which was about dusk. He states that they were personal friends, and he asked him what he was there for, and he said “for business.” He stated that he had spent the afternoon in a sporting house. They had some talk about Emma Lesh’s place, and, started along. When opposite the Ladd place, he asked who lived there, and whether he was rich or poor. O’Hearn gave him directions to Emma Lesh’s place, and he remarked that he would go down there, and see what he could do, and that, if he could not make a raise down there, the other place would be an easy mark. Witness .supposed he referred to Dr. Ladd’s place. • During the walk he showed the witness a sectional jimmy. The window at Ladd’s was entered by means of a jimmy. Mrs. English, a resident of Adrian, saw O’Hearn talking -with ■a stranger near the Ladd residence at the time stated. Bessie De Witt, an inmate of Emma Lesh’s place, testified that he came there between 7 and 8 p. m. of the night Ladd was killed, and stayed until near 2 o’clock in the morning. He was assigned a room in the house. He had some talk with her about robbing Emma Lesh. About 2 o’clock witness heard him going towards Mrs. Lesh’s room, and got up. She made a noise, and he ran out of the house. Ladd was killed in the early morning before daylight.

The theory of the prosecution was that, after shooting Ladd, he went south to the cemetery, and through it to a highway called the “Treat Road,” thence via that road to the Ohio line, and from there directly south to Delta, Ohio, where he took the Air Line Railroad train to the city of Toledo. George A. Williams saw him on the Treat road, about six miles from Adrian, between 5 and 6 in the morning of April 17th, hurrying south, and looking back “all the while.” He asked the distance and way to Delta, Ohio. Several farmers along the road saw him, and identified him by peculiar clothing which he wore. O’Hearn testified that, a week or 10 days after he saw him at Adrian, he received a letter from him to meet him at Air Line Junction, and that he rode down there on a night train, back of the engine. When he met him, respondent asked him what was said about the Ladd affair at Adrian. The witness told him that nothing was said concerning him, and he replied that, “if they ever find out who did that job, or croaked that old duck, it would be me that would tell them.” He also talked about his being at Emma Lesh’s that evening, and that he had a hard time going across the country to the Ohio town, and that he had a hard time making Toledo. Respondent told witness to let him know if he heard anything, and gave him a five-dollar bill to pay his expenses. He told him to address him “Dr. John Higgins, Toledo, Ohio, General Delivery,” and said “he could fix an alibi—prove an alibi—in Toledo.” A 32-caliber revolver was found on respondent’s person when he was arrested, and a ball of that size was taken from the body of Dr. Ladd. The defendant was arrested at Toledo for another offense, and this arrest led to the suspicion that respondent was the man who shot Dr. Ladd.

The defendant’s counsel claim that the testimony was insufficient to justify the submission of the case to the jury, and that the court should have directed an acquittal. We are of the opinion that the evidence, though circumstantial, was sufficient to support a verdict of guilty.

A witness named O’Brien testified that he was a detective in the employ of the city of Toledo, and, in company with one Oarew, went to the house where respondent lived, for a man of a given description, who was suspected of a burglary of silverware in Toledo. As they approached the respondent, who stood on the porch bareheaded, they recognized him as the man they wanted. When he saw them, he went into the house. Witness went around the house, and saw respondent escaping from the back door. He climbed a fence, and was captured in a field, with a revolver on his person. In answer to inquiries made, he said he had disposed of the silverware in' Adrian. This led the officers to suspect his connection with the Ladd affair, and the prosecuting attorney and sheriff of Lenawee county were sent for, and came to Toledo. In the interview that followed, he admitted that he knew Jennie King. During this interview he called Carew out for a private talk, and said he did not dispose of the silver in Adrian, but had sent it to his sister, in Jackson, and. signed a letter to her to return it. The officers secured the box, and found some silver in it, together with a story in manuscript, in the writing of respondent, entitled “A Life for a Life.” This story is claimed to bear a close resemblance to the true narrative of the Ladd murder, and it was admitted in evidence as a circumstance in the case.

Numerous objections attended the introduction of this evidence. It was contended that, as the arrest had ho connection with this offense, and the defendant did not know what he was arrested for, his conduct on that occasion was not admissible, and that it was not permissible to show that he had committed other offenses, and that the story was not so connected with the Ladd matter— especially as respondent testified that it was written before that occurrence—as to be admissible. We think that the learned circuit judge was commendably careful in receiving this testimony. The conduct of the defendant may or may not have been due to his fears of arrest for the Ladd matter, and the story may or may not show his knowledge of that affair. These are questions to be determined by the jury; but the circumstances were such as to make such inferences legitimate. Again, the fact that he owned and carried a 32-caliber revolver was pertinent. The testimony was none the less admissible because it necessarily involved a charge and arrest for other crimes. We think the court did not err in admitting the testimony of O’Brien, or in receiving the manuscript.

An autopsy was held upon the body of Ladd, at which several surgeons were present. Error is assigned upon the failure to call a Dr. Williams, who participated in the operation. Counsel say he took the bullet from the body. The evidence of several of the physicians was taken as to what occurred. This seems to leave no room for doubt that Drs. Jewett and Williams operated, and that Williams found and produced the ball, which was examined by all, marked, and given to the witness who produced it, for safe-keeping. The question was raised in a request for acquittal upon this ground, and we are not advised by the brief that counsel for respondent asked that such witness be produced for examination. The danger of injury to the defendant by the omission to call Dr. Williams is not apparent to us, nor does it seem to have been to the defendant’s counsel. If it was their right to have him called, it was their duty to ask that he be called seasonably, instead of omitting such request altogether, and seeking to take advantage of the omission by a request for an acquittal.

Exception was taken to the rigor of the cross-examination of Mary Wilcox and the defendant. These are matters largely within the discretion of the circuit judge, and, in view of the testimony elicited, we think that the propriety of such examination was vindicated. We thinkthe discretion of the circuit judge was not abused. The testimony of Mary Wilcox, a married woman, justified a searching examination into her relations with the defendant. The defendant was a witness, and it was proper to show by him not only that he had been convicted of many atrocious crimes, but that on his former trials he had denied his guilt. These things went to the question of his credibility.

The statement of the prosecutor to the defendant in a colloquy, “We ascertained that what you said to us was not true,” was a natural, if not proper, reply to a remark by the respondent. It was at once condemned by the court, whereupon the prosecutor attempted to prove the truth of his statement by the defendant himself. We think this statement does not require a reversal of the case, and the same may be said of the examination of the witness Deveaux.

There are other assignments of error, but none which require discussion.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    YOUNGS v. POVEY.
    State Tax Land—Purchase—Validity.

       1. Application for a deed and payment of the taxes to the auditor general complete the purchase from the State. Eldridge v. Richmond, 120 Mich. 586.
    2. The land was advertised at the annual tax sale as “ State tax lands,” under section 8901, 1 Comp. Laws, but was not sold. This statute was not enacted for the benefit of the original owners, and the sale by the State is valid.
    ■3. The purchaser sent to an employé in the auditor general’s office a draft sufficient to pay the taxes, and asked such employ.é to ascertain from the hook kept for that purpose whether any applications were ahead of hisif not, then to present his application and hand the draft to the auditor general. Held, that this was not a violation of section 1321, 1 Comp. Laws, making it unlawful for an officer or clerk in the auditor general’s office to purchase, directly or indirectly, any lands for sale at said office.
    Appeal from Chippewa; Steere, J.
    Submitted March 8, 1901.
    Decided July 2, 1901.

      Petition by Clark W. Youngs against David Povey, Carrie Povey, and Patrick Needham for a writ of assistance. From an order granting the writ, respondents appeal.
    Affirmed.
    The applicant is the owner of a tax deed dated October 4, 1897. The respondent David Povey is the original owner, and respondent Needham is his tenant. The applicant was granted a writ of assistance to put him in possession. The tax deed is based on the taxes of 1893, and the premises were bid in by the State at the annual tax sale in December, 1895. The land was again offered at the annual tax sale in 1896 as “ State tax land. ” The first publication of the notice of sale was November 14, and the last December 5, 1896. The land, however, was not sold at that sale. June 15, 1897, the applicant applied to the auditor general to purchase five descriptions of land, including the one in question, for which he deposited $335 with the auditor general. The money was sufficient to pay all the taxes upon all the descriptions. On June 22d, supposing that there was overpayment of $15, that amount was returned to Mr. Youngs. When the deed was returned by the auditor general to Mr. Youngs, he also received $54, supposed at that time to be overpayment. 'It was subsequently discovered-that there was a mistake on one of the' other descriptions of land, and complainant, Mr. Youngs, was called upon to send the amount, which he did.

      W. S. Hill, for petitioner.

      John W. Shine ( Gahill & Wood, of counsel), for respondents.

       Head-notes by Grant, J.

   Grant, J.

{after stating the facts). 1. It is first urged in behalf of respondents that the purchase was not completed ' until the delivery of the deed, in October; that at that time another tax had become due, which was not paid; and that therefore the tax deed is void, under Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134). It was settled in Eldridge v. Richmond, 120 Mich. 586 (79 N. W. 807), that the application and payment complete the purchase, and that the acts of issuing a certificate and executing a deed are ministerial acts, necessary only to evidence the title. Owing to the press of business in the auditor general’s office, Mr. Youngs’ application was not reached for some months after his application and payment. Mr. Youngs’ deposit with the auditor general was sufficient to cover all the taxes then due.

2. It is next urged that the deed is void because the land was not sold at the annual tax sale as “State tax lands,” under section 3901, 1 Comp. Laws. This contention cannot prevail. This statute was not enacted for the benefit of the original owners. Muirhead v. Sands, 111 Mich. 487, 492 (69 N. W. 826); Garner v. Wallace, 118 Mich. 387 (76 N. W. 758).

3. It is next.urged that the purchase was made through one White, who was at the time an employe in the auditor general’s office, and that therefore the deed is void, under section 1321, 1 Comp. Laws, which reads: “That it shall be unlawful for any officer or clerk employed * * * in the office of the auditor general of this State * * * to purchase, either directly or indirectly, from the State, * * * any lands for sale at said office. * * * ” Counsel rely upon Hall v. Collins, 117 Mich. 617 (76 N. W. 72), and Wait v. Gardiner, 123 Mich. 236 (81 N. W. 1098). Mr. Youngs wrote a letter to White, giving him the description he wanted to purchase, inclosed a draft for the money, payable to the order of the auditor general, and requested White, before presenting his application, to ascertain if any applications for these lands were on file, and, if not, then to hand the draft to the auditor general and file his application. Mr. White made and filed an application, signing Mr. Youngs’ name to the same. It was the custom of the auditor general’s office to receive all applications and moneys for tax deeds, without at the time ascertaining whether there were any prior applications. The first applicant received a deed, and the money of the other applicants was then returned. A boob, known as “No. 11, ” was kept, in which these applications were noted. Mr. Youngs had ascertained from the county treasurers office that these taxes were not paid. Had he been in Lansing himself, he could have examined book No. 11, or asked Mr. White or any other person to examine it for him, and ascertain whether there were any previous applications. He simply wrote to Mr. White to file the application in case there were none ahead of it. Mr. White had no interest in the matter, received no compensation, and did it only as an accommodation to Mr. Youngs. He obtained the same information that a blind man or any one could obtain, either in person or by letter, from the clerk who had access to the book. Complainant did not desire to deposit the money if there was an application ahead. This information he might legally obtain from any one in the auditor general’s office. There was nothing reprehensible in the transaction, and nothing by which any fraud could be committed or any other person’s rights injured. This transaction is not within the statute or the rule of the cases above cited.

The order is affirmed, with costs.

The other Justices concurred.


text:
    CLARK v. WILLIAM MUNROE CO.
    1. Sale—Fraud—Rescission.
    Evidence that a sale of chattels was made on the purchaser’s representation that he was in as good pecuniary condition and had as good credit at the bank as ever, and could meet his paper when due; that in fact he had not as good credit at the bank as previously; and that a month later, on account of threatened suit by creditors, he formed a corporation, to which he conveyed all of his property except his home and some lots, which he conveyed to his wife,—is sufficient to support a finding of fraud in the purchase, justifying a rescission by the seller.
    2. Same—Confusion of Goods.
    Where lumber fraudulently purchased is so mingled by the purchaser with his own that it cannot be distinguished, the seller may retake an equal quantity from the common mass.
    Error to Wayne; Waite, "J.
    Submitted April 2, 1901.
    Decided July 2, 1901.
    Replevin by Arthur J. Clark against the William Mun-roe Company, impleaded with William Munroe. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clark, Durfee, Allor & Marston, for appellant.

      George E. Eckert, for appellee.
   Hooker, J.

The plaintiff replevied a quantity of lumber from the defendant company, and upon the trial obtained a verdict and judgment against it for the property replevied, and for $270, to cover property mentioned in the writ and not found. The court directed a verdict of not guilty as to Munroe, and set aside the judgment to the extent of the $270 damages. The company has appealed.

Plaintiff asserts that on or about December 5, 1898, he had some negotiations regarding the sale of some lumber with William Munroe, and that in accordance with an arrangement then agreed upon, and in reliance upon certain representations then made, he sold and delivered on different days up to and including January 4, 1899, the lumber in question. He took Munroe’s promissory notes for all except that delivered on January 4, 1899, said notes being dated ahead, and of the date of January 5, 1899, at Munroe’s request. On January 4, 1899, Munroe caused an incorporated company to be formed to take and carry on his business, and took all but two shares of the stock himself. Of these two his attorney took one share, and a friend the other. At the same time he conveyed to the company all of his stock in trade, including such lumber as he had on hand, and all of his real estate, except his home and some lots, and these he conveyed to his wife. On ascertaining these facts, the plaintiff delivered up the notes, and demanded his property, claiming a right to rescind the contract for fraud.

Counsel for defendant contend that the court erred in not directing a verdict for the defendant. The case went to the jury upon the theory that plaintiff might recover if the jury should find that, at the time of the purchase of this lumber, the defendant made false representations as to his pecuniary circumstances, ahd thereby procured the lumber, with the intention of not paying for it. Defendant’s contention is that there was no testimony tending to prove this. The plaintiff introduced testimony tending to show that the defendant said that he was in as good “pecuniary shape ” as he had been, and had as good credit at the bank as he ever had, and could meet his paper when due; but that, as a fact, he had not as good credit as he had previously at the bank, and that he formed the corporation for the purpose of avoiding embarrassment from some creditors who threatened to sue him. There was also testimony that he transferred all of his property at this time. Proof of fraud may, and usually does, consist of facts and circumstances from which the fraudulent purpose may be inferred. The question is one for the jury, and we are of the opinion that facts were shown in this cause justifying the submission of the question to the j ury. Counsel insist that there is no testimony tending to show a fraudulent intent, or even an intent to form a corporation for the conduct of his business as early as December 5th, when the negotiations were had. The devices resorted to for the purposes of fraud are as numerous and varied as the ingenuity of man permits, and it is not necessary that one claiming to have been defrauded be able to show the secret intentions of another byhis admissions or statements. It is enough if the entire transaction begets a well-founded conviction of the fraud. Kirschbaum v. Jasspon, 123 Mich. 314 (82 N. W. 69); Morgan v. Andrews, 107 Mich. 33 (64 N. W. 869); Skinner v. Michigan Hoop Co., 119 Mich. 467 (78 N. W. 547, 75 Am. St. Rep. 413).

Error is assigned upon the charge of the court. Counsel say that he charged the jury that, if plaintiff could not find all of the lumber that he was entitled to, he had a right to take such lumber as he could find to make up the loss. We think this is a misinterpretation of the language used, as the following quotation from the charge will show:

“But he is .entitled to recover only the property that was sold at that transaction. If he takes the property of another, he takes it at his peril, and, of course, must answer for it, with this exception: If the property is taken by the defendants, or if these defendants in this case, if the plaintiff had a right to recover, took his property, and mingled it with their property, so that it could not lie distinguished, and he had a right to the possession of his property, or a portion of it, he could take as much as he had a right to the possession of from the mingled property of the same kind, where he had not been at fault in the commingling of it, if the other parties had, either fraudulently or carelessly. If he had a right to the possession of it, then he could take the amount which had been taken from him, or which he had a right to take, from the mingled property in the possession of the defendant. But that would not give him a right to take property to the amount of that which he claimed, if that property was not there, or never had been, or had been rightfully used or taken away for any other purposes. If you should find that the plaintiff had a right to recover the property which was sold upon that occasion, and he went there, and it was not mingled, as I have told you, and he took other property belonging to the William Munroe Company, then he would have to answer for such property as he took from the William Munroe Company, or anybody else’s property, which was not included in this sale to him originally.”

Some other questions are raised, but we think it unnecessary to discuss them.

The judgment is affirmed.

The other Justices concurred.


text:
    VREELAND v. MONNIER.
    Mortgages—Deed as Security—Tax Titles.
    One who takes a deed of mortgaged land as security, and, by arrangement with the grantor, acquires certain tax titles for the latter’s benefit, is merely a second mortgagee, whose interest is cut off by a valid foreclosure of the first mortgage.
    Appeal from Wayne; Donovan, J.
    Submitted April 2, 1901.
    Decided July 2, 1901.
    Bill by Eleanor B. Vreeland against Jennie M. Monnier to quiet title. Prom a decree for complainant, defendant appeals.
    Reversed.

      Atkinson & Atkinson, for complainant.

      Jay Fuller, for defendant.
   Hooker, J.

Eleanor B. Vreeland, the complainant, filed the bill in this cause to quiet her alleged title to lot 65 of Hannan’s Belt Line addition, being part of private-claim 678.

In December, 1891, Forrest R. Apger, who owned this lot, gave a mortgage for $150 upon it to defendant, Monnier, and in February, 1893, he conveyed the premises,' subject to the mortgage, to Ira Apger, his father, who-assumed and promised to pay the mortgage. On May 3, 1895, Ira Apger died, leaving a widow and several children as his heirs at law. Bolton was appointed administrator de bonis non. These parties were originally made defendants in this cause, but complainant permitted the bill to be dismissed as to them. Prior to Ira Apger’s death, defendant, Monnier, had instituted proceedings in chancery for the foreclosure of her mortgage, and these were revived against Bolton, the administrator, and defendant obtained a commissioner’s deed in August, 1897-

On June 6,1895,—being after the death of Ira Apger, and during the pendency of the foreclosure suit,—a quitclaim deed was made by the controller of the city of Detroit to James J. Atkinson, conveying the interest of the city in said premises to him,—i. e., for the term of 99 years,— which was acquired by the city at a sale for the taxes for the year 1893. Charles H. Apger, one of the heirs of Ira Apger, his wife joining, made a warranty deed of an undivided one-sixth of this lot to James J. Atkinson on June 14, 1895. On February 14, 1896, James J. Atkinson procured another quitclaim deed from the city for a special assessment for sidewalk laid in 1894, and on February 20, 1897, he procured and caused to be executed to one McGinn, by said city, a similar deed for the tax of 1894.

Bolton testified that he filed a bill to set aside the deed from Charles H. Apger to Atkinson upon the claim that it was given for security, and that he had a talk with Atkinson before filing it, in which Atkinson stated to him that it was an absolute deed, and not a trust deed. He then filed the bill. Atkinson’s answer is not shown, but is said by one witness—i. e., Apger—to have stated that it was not an absolute deed, but was taken as security. At all events, it is now conceded that it was taken as security for a loan; Mr. Atkinson himself so testifying, and stating that he “never negotiated a minute with Charles H. Apger for his interest in the estate at the time he got the deed.” Apger testified that in June, 1895, it was understood that there were some tax titles standing against this lot, and Atkinson suggested to him that he (Ápger) better buy them. He replied that he had nothing to buy them with, when Atkinson offered to loan him $75 on his interest in the estate, and take a trust deed as security. This deed was then executed and delivered, and the money paid over, less some $26, which was reserved by Atkinson to pay for the tax titles, and to settle a small indebtedness of $5 or $6. The amount paid for the three tax deeds Was about $20. The tax titles were to be bought in Apger’s name. Mr. Atkinson’s testimony shows that the complainant is a nominal party merely; that the deeds from McGinn and himself to her were for his convenience; and that he, and he only, has an interest in this proceeding, the bill being filed for his benefit.

Counsel for the complainant — i. e., Mr. Atkinson— makes the point (apparently for the first time) in his supplemental brief that Apger did not deed’ the premises in controversy to him, and that inspection of Exhibit A will show that lot 65, mentioned in that paper,— i. e., the deed from Apger,—is in private claim 78, instead of 678. This seems to be so in the printed record, but in the record of tiie deed introduced in evidence it is described as private claim 678. Exhibit A is not the original deed, but an alleged copy, attached to the answer; and, as the testimony tends to show that the deed was not produced at the trial (Atkinson testifying that it had been stolen from his office), it is probable that it was taken from the record, and that a mistake was made in transcribing it. The record of tho deed is the only evidence upon the subject, and that has been shown to describe the land correctly. The clerical error should be disregarded, even if complainant’s counsel had seasonably raised the point by calling attention to it in the trial court, which appears not to have been done.

The defendant attacks the validity of the tax deeds, but we think it unnecessary to discuss' them. The testimony convinces us that these deeds were taken for the benefit of the estate, under an arrangement made with Apger. This places complainant, at best, in the attitude of a second mortgagee, whose interest is cut off by the foreclosure sale to the defendant under the first mortgage.

The decree of the circuit court is reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.


text:
    LOWES v. LOWES.
    Deed to Infant—Setting Aside—Fraud—Bill of Review.
    Parents executed and recorded a deed of a farm to their 18-year-old son, subject to a mortgage, which, by the terms of the deed, he assumed and agreed to pay. A year and a half later a decree setting aside the deed was made in a suit by next friend; the minor swearing to a petition that the deed was made without his knowledge or consent, and was without consideration; that he had no use for the farm, and no means to pay the mortgage or interest; and that his parents had an opportunity to sell the farm, and purchase with the proceeds property which would benefit the whole family. Immediately thereafter, pursuant to negotiations commenced before the suit, and in which he was an active participant, the farm was exchanged for a hotel, in which he was thereafter employed. A year later he instituted proceedings by next friend to review and set aside the decree, filing a petition and giving testimony contradicting the former petition, and alleging that he did not know its contents. He also alleged that, as consideration for the deed, besides assuming the mortgage, he agreed to support his parents. He did nothing towards performing his contract, except that' his parents had part of his wages, to which they had a legal right. Held, that the attempt to set aside the decree was in fraud of those who had traded the hotel, and should not he sustained.
    Appeal from Oakland; Smith, J.
    Submitted April 3, 1901.
    Decided July 2, 1901.
    Bill by Clarence B. Lowes, an infant, by next friend, against Miles F. Lowes, Augusta E. Lowes, Mary E. Martin, and Charles C. Pennell, to review and reverse a decree setting aside a deed. Prom a decree for complainant, defendant Martin appeals.
    Reversed.

      Davis & Bromley, for complainant.

      Watson & Chapman and Perry & Perry, for appellant.
   Hooker, J.

Miles F. Lowes and Augusta E. Lowes were husband and wife, and Clarence B. Lowes was their son. In the year 1893 they resided upon a farm of 106 acres, held as tenants in entirety by Miles and Augusta Lowes, and on September 19th of that year they (Miles and Augusta) executed and caused to be recorded a deed of the same, running to the son. The son states in his testimony that this was done because his father was addicted to drink and might squander the property. There is also testimony that-on one occasion the son stated that it was done through fear of obligations outstanding. It does not clearly appear what the reason was. We are not able to find from the proof that it was an illegal transaction, designed to hinder, delay, or defraud creditors; and, while the son now states in his testimony that the conveyance-was accompanied by a promise upon his part to support his parents, he was then a minor, and does not appear to have done any more than use a part of his wages for that purpose for a short time, if he did that; and to these his father had a right under the law. Perhaps it is as probable that it was done through the influence of the mother, for the reason first assigned. It may have been through the influence of the son. No consideration, other than as above stated, was paid for the conveyance. It is not clear that the deed was ever delivered to the son, except by putting it on record. He was then nearly 18 years of age.

On April 27, 1895, Clarence B. Lowes filed in the Oakland circuit court, in chancery, a petition alleging that he was upwards of 19 years old, and that a suit was about to be instituted in his behalf for the purpose of setting aside a deed made by his parents to him, dated September 19, 1893, and recorded the same day. The petition described the farm as the land deeded,- and stated that the deed was made without his knowledge or consent, and was without consideration; that it was owned by his father and mother, and was incumbered by a mortgage of $1,500; that they had afterwards removed from and rented the farm, and that petitioner had no use for it, and no means to pay the mortgage, or even the interest upon it; that he knew of no good reason for making the deed; and that it was of no benefit to him or any one else. It stated further that his parents had an opportunity to sell the farm, and to purchase other property with the proceeds, where all the family could live and find employment, and that the same would be for their benefit. He made oath to this petition, and a next friend was appointed, a bill filed, and the suit pushed to a decree setting aside the deed. No appeal was taken from the decree.

Thereupon the land was conveyed to Mary E. Martin, subject to the mortgage, who in exchange therefor conveyed a hotel and other property, taking a mortgage back on the hotel for a balance her due. Clarence Lowes was an active participant in bringing about this trade, which was in process of negotiation before the suit was commenced. It was in view of this prospective trade that such action was taken; a contract having been previously made, which could not be performed without a conveyance of the farm. Clarence Lowes testified that he did not know the contents of this petition when he signed and swore to it, and it seems that a jury acquitted him on a charge of perjury growing out of it; but we think the statement of the witness Sawyer more probable, and are convinced that the petition was signed and sworn to intelligently and deliberately.

The Lowes, including Clarence, moved into the hotel, where they remained for a time, and a bar was maintained there; Clarence himself conducting it at times. A few weeks after he became of age, which was in November, 1896, he abandoned the hotel and took possession of the farm. The Lowes took away with them considerable of the persona] property bought from Mrs. Martin. Soon after taking possession of the farm he asked and obtained leave to file a bill of review in his former proceeding, and upon a hearing of the case the former decree was set aside, and the parents and Mrs. Martin held to have taken the farm subject to the right of Clarence to disaffirm the transfer. The petition for leave to file this bill of review contradicts unqualifiedly most of the allegations of his former petition, and Clarence Lowes supplemented it by testimony that he was ignorant of its contents. The learned circuit judge gave no credence to this statement.

The deed, on its face, shows that it was made subject to a mortgage of $1,500, which the grantee was to assume and pay. Clarence Lowes testified that he was to suppoi't his parents as a part of the consideration. It is manifest that this was a contract which, by reason of his infancy, it was beyond his power to make. . He never attempted to perform.it. Not only this; when it suited his purpose to have this land exchanged for a hotel, he did not hesitate to swear that he did not make the promise, for he said in his first petition that the deed was made without his knowledge or consent; and he did this for the purpose of taking legal proceedings which should make it possible to satisfy the Martins with the title which he and his parents proposed to give to this farm in exchange for the hotel. The only theory upon which his attempt to reopen this chancery decree can be excused is that he did not know the contents of his petition, which he undertook to make the court beliove was concocted by his parents and his lawyer. If that is not true, and he made the first petition with full knowledge of its contents, we know of nothing lacking to make it a part of a fraud upon the Martins, and in such case he ought not to be relieved.

This dutiful son (whom the court finds to have been reasonably bright, with a fair education), if he is now to be believed, accepted from his parents a deed of all they had in the world, except a little personal property, upon a promise to pay a' mortgage debt owed by them and to support them. He does not hesitate to give plausibility to the story by making it appear that his father was an inebriate, who needed protection against a habit so strong that it would swallow up the land held by himself and wife in entirety, although just how that could be accomplished without the death or consent of the wife is not stated. Having obtained the title, he proceeds to negotiate a trade for a hotel where he and his father can sell the dreaded liquor; and, in order to make it possible to convey the farm, which he finds is tied up by reason of his infancy, he does not hesitate to charge his parents with attempting to impose obligations upon him that he did not want to assume, by surreptitiously making and recording a deed in which he was named grantee; and later, finding it to his advantage to repudiate his trade with the Martins, he again charges his parents with conspiring with a lawyer to deprive him of his rightful title to the farm, and intimidating him by threats into signing a petition without knowing its contents, which he now admits to contain a tissue of falsehood.

There is no doubt that when a grantor makes and causes to be recorded a deed, with intent to pass title, it may be a good delivery; but it is not unless the grantee is willing to receive it, and even an infant cannot have title and obligations forced upon him in such a way against .his will. Now, that is what this late infant solemnly swore was done. He insisted on being relieved therefrom, and a court of chancery adjudicated upon the matter. It had jurisdiction, and its decree is binding until set aside. How are we to tell when this bright and educated young business man told the truth ? Has he come into equity with clean hands ? Is he here as ready to do equity as to ask it ? What has he paid to any one for this 100-acre farm which he asks us to restore to him ? The whole fabric of his case rests on no broader foundation than that during his infancy a deed was made to him without consideration, and, although he has since caused another to buy it in reliance on the truth of his statements showing that he never received the title, nevertheless he acquired title, and is now entitled to take it from her. We feel justified in treating his first petition as one justifying the relief he obtained, and in holding that this attempt to review and set aside the decree is a fraudulent effort to cheat the Martins out of- their title to the lands.

The decree of the circuit court is reversed, and the bill of review dismissed, with costs of both courts.

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


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    CRAWFORD v. DETROIT, GRAND RAPIDS & WESTERN RAILROAD CO.
    Railroads—Injury to Brakeman—Assumption op Risk.
    A brakeman who knows of a custom of the company to maintain a hook on the rear of the locomotive tender to support the hose of the air brake when uncoupled (he having found such hook replaced after each of the several occasions when he removed it) assumes the risk of being caught by the hook when he continues to ride on the brake-beam of the tender, and cannot recover against the company for an injury so received.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted April 4, 1901.
    Decided July 2, 1901.
    Case by Robert L. Crawford against the Detroit, Grand Rapids & Western Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frederick W. Stevens, for appellant.

      Maher & Salsbury, for appellee.
   Hooker, J.

The plaintiff, a brakeman of many years’ experience, lost a foot and suffered other injuries by getting under the wheels of the locomotive tender upon which he had been riding. His* version of the accident is substantially as follows: He was engaged in switching cars, and climbed upon the engine to ride back to the car to which it was to be coupled. He crawled over the tender and descended a ladder 'on the back end, intending to get down on the brake-beam, and from thence to the ground. The engine was fitted with air brake, hose, and coupling; and, to support the loose end of the hose when not coupled to a car, there was a hook, suspended to the back end of the locomotive by a chain. He testified:

“I went from the elevator track to the house track to pick up this car, and I got onto the engine at the switch, and got down from the back of the tank, and took a link from the drawbar, which I put up on the back of the tank. I crawled over the top end and got on the ground to make the coupling to the car on the siding, and I was caught by the pants and throwed under in getting off at the back end. When I was backing down the siding to pick up the car, I had taken the link out of the drawbar and put it on the top of the tank. This link was seven or eight inches long and double, closed at both ends; and when I made a jump for the ground, when I came to the end of the chain, it jerked me back under the wheels of the engine. The hook caught upon the right leg when I made the j ump. I was fast to the hook, and it dragged me back. I tried to save myself, and through the exertion my leg (right) got loose, but the engine was so close to me that it caught my pants and held me while passing over my left leg. * * *

“I had seen this hook on this tender before. I cannot say how many times. When I saw it, it would sometimes be there half a day, and sometimes not more than 15 minutes, if I could get it off. It was attached to the tender by a staple driven into the woodwork. It was attached on the back side of the sill of the tender, and the movement of the engine kept this hook swinging. It was so that it could be caught by the brake-hanger, which is a piece of iron that goes from the brake-beam to the back end of the tank, and holds the brake-beam off the ground.

“I was hurt on Tuesday. I had last seen this hook on the tender Monday morning. On Monday I took it off. I had taken it off twice, I think, before that. I do not know why it had been replaced, nor whether it was replaced at Grand Ledge or Ionia. We had that locomotive in use all the time for the regular train, unless she had to go to the shop, and then they gave us another one. * * *

“In the air system, it is necessary to connect the pipes between the cars by using air hose. This is a piece of hose on each car, with a coupling fastened to it, and it is necessary to the working of the brakes. It has been in use I could not say how many years. The first experience I had with air was in 1883. The first I knew of its being used on a freight train was in '1886. They were using it on the defendant road when I came there, and I expected to find it in use. It is quite essential that the hose should be kept in proper condition. If there is a leak in the hose, of course, it will destroy the pipe; and, if there was dirt or accumulations in there, it might destroy its efficiency to some extent,, though very little. The loose end of the hose is mostly left hanging down. With prudent railroading, they should hang it up, where they have anything to hang it on. It is regarded as good railroading to hang them up, and it would be regarded as bad railroading to let it hang down, if there was no protection for it. There could be no protection. On trains where I have been at work, some cars have something-provided for hanging it up, and some have not. On this train that day there was a place to hang this hose.

“ Q. You would admit it would be proper to hang that hose up, won’t you ?

“A. Not the way we had that hose fixed.

“Q. It would be proper to hang it up, to keep it from dragging in the dirt and dust ?

“A. Not this hose.

“Q. Do you mean to say you would not hang up a hose of that kind ?

“A. They would hangup a hose that had no protection. * * *

‘ ‘ The engine was moving three or four miles an hour at this time, and, after I had put the link on top of the tank, I came down again onto the brake-beam, and went to get off on the ground,—stepped off, as we always do, and jumped towards the outside of the rail. After I made the jump and let go, it jerked me back, and I found I was caught. The bottom part of my pants caught on the hook. I could not exactly say how far from the hook, —from the brake-beam. I could not say how many times I had seen this hook that I caught my pants on, or one like it. I have seen lots of them. The engines all have that hook on. Every time I have seen an engine running, you see one of them. I have seen, at the lowest calculation, three or four hundred of them. I cannot state how many times I had seen it on this engine. Every time I had seen it there I knocked it off. * * * That was our regular engine at that time. I had been using it eight or nine months, anyway, and I had been acting as head brakeman most of that time.”

A photograph shows the patent automatic coupler on he center of the back end of the tender. Some 10 or 12 inches to the right of it, as one faces the end of the tender, is the hose for coupling, while 6 or 8 inches still farther to the right are the hook and chain. The plaintiff claims that he did not approve of this device; that some months before the accident he wrote a letter to the master mechanic about it, saying it ought to be changed to the other side, to which no attention was paid. He testified further:

“ I took the hook off every time I saw it. When it came from Ionia, I noticed it and knocked the hook off. Sometimes with a pin and sometimes with a hammer. I knocked the staple out. I knocked it both ways until I got it loose so that I could pull it out. It would probably take a couple of minutes to take it off. I felt it my duty to take it off every time I saw it, and did so We did not need it, with the hose we had. When I took it off, sometimes I threw it on the tank, and sometimes on the ground or outside the track.”

He testified that it was unnecessary to use the hook with the coupling that was on the engine, which was unlike those in general use on the road, and had a cap to cover the end of the hose when uncoupled. This he accounts for by saying that it was the first one of the kind he had seen, and was on a foreign car, from which it was taken and put upon this engine by the conductor with his assistance.'

The negligence complained of is that the defendant furnished an unsafe appliance, by reason of the presence of this hook. It is shown to a demonstration that this appliance was in common use; that it was in a place upon the tender not uncommon, and was adapted to the purpose for which it was intended. Moreover, the plaintiff knew it was the policy of the company to keep it there; for he found it replaced as often as he knocked it off, which, he says, was a thing of frequent occurrence. It was evident to him that the defendant proposed to use this locomotive with such appliance attached; and, whether it might have been improved upon or not, the defendant had a right to determine for itself the kind of locomotive it would use, within reasonable bounds, and to ask its employés to use it. Where, as in this case, the alleged condition is apparent, and its danger known, as this plaintiff shows it to have been to him, the employé assumes the risk, if he continues to use it. Johnson v. Hovey, 98 Mich. 343 (57 N. W. 172); Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Sakol v. Rickel, 113 Mich. 476 (71 N. W. 833); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907).

The judgment of the superior court is reversed, and no new trial ordered.

The other Justices concurred.


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    HALLWOOD CASH-REGISTER CO. v. MILLARD.
    1. Sale—Written Contract—Warranty—Parol Evidence.
    A warranty cannot be added by pai-ol to a written contract which, -upon, its face purports to contain the whole agreement of the parties.
    2. Same—Fraud and Deceit.
    Hence, in an action for the price of a cash register sold on written contract, evidence that, as an inducement to the purchase, it was represented to defendant that the machine could not be manipulated to his prejudice, which representation proved to be untrue, is inadmissible to supply a warranty to the contract and establish its breach, though it may, under proper notice, be received in support of a claim of fraud and deceit in the sale.

      3. Same—Offer of Proof.
    In this case, however, defendant’s offer of testimony is held not to embrace a claim of fraud and deceit.
    Error to Kent; Wolcott, J.
    Submitted April 4, 1901.
    Decided July 2, 1901.

      Assumpsit by the Hallwood Cash-Register Company against Baltis L. Millard for the price of a cash register. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. L. Dunham, for appellant.

      J. Byron Judkins and N. J. Brown, for appellee.
   Hooker, J.

The defendant has brought error upon a judgment rendered against him for the price of a Hall-wood cash register. This is a device designed to receive cash paid for purchases, and, at the same time that it registers the amount, exhibit to the purchaser the amount thereof. The plaintiff produced a written order substantially like that in the case of National Cash-Register Co. v. Blumenthal, 85 Mich. 465 (48 N. W. 622), and proved its execution, and the delivery of the machine, and a refusal to pay. The defendant admits the foregoing, and by way of defense offered to show that, at the time the writing was signed, plaintiff’s agent stated, by way of inducement to his giving the order, that the machine was one that could not, by any means or system, be manipulated so as to register incorrectly, by any clerk or other person, and could not be so worked as to show the purchaser one figure and register another, and that, if defendant would purchase one, it would be a full protection to him against any dishonest employé. The proof shows that the machine does not conform to such representation. It appeared that a few days after the purchase, up to which time the machine had worked satisfactorily and accurately, an agent for the National Cash-Register Company, a competitor of the plaintiff, called upon the defendant, and after telling him that the machine could be beaten, showing him how to do it, and advising him. to rescind the contract, sold him a National cash register, and defendant took the usual steps to rescind the contract for the Hailwood machine. Upon the trial he sought to show by parol the representations alleged to have been made by plaintiff’s agent; but they were excluded by the court upon the ground that the contract was in writing, and could not be altered or added to by parol, and that, in the absence of fraud, such testimony could not be received.

The general rule is as stated by the court. Warranties cannot be added by parol to written contracts which upon their faces purport to contain the whole agreement of the parties. The authorities are considered in the case of McCray Refrigerator Co. v. Woods, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599), and the recent case of Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554), which recognize the existence of implied warranties in written as well as oral contracts. See, also, Tufts v. Verkuyl, 124 Mich. 242 (82 N. W. 891). It cannot be claimed that a warranty such as defendant’s counsel sought to prove can be implied.

It was competent, however, under the pleadings in this case, to show that the purchase was induced by deceit, and there was some testimony from which it might have been inferred, had the court permitted and counsel been able to prove the representations alleged. It follows that the judgment should be reversed for this reason, unless the conduct of the case was such as to forbid. Defendant’s counsel asserts that the offer to prove fraud and deceit was made upon the trial. The question was raised, if at all, upon the offer to prove the representations. The substance of what occurred is as follows:

“Q. What was the conversation you had with him ?

“Mr. Judkins: I object to that as immaterial and irrelevant. The contract is the best evidence of the arrangement. Also incompetent.

“Mr. Dunham: The contract is the best evidence as far as it goes, but that is not all there is of it.

“Mr. Judkins: The contract goes the full length. In a case it has been decided by the Supreme Court, in 85-Mich., that that contract cannot be modified by parol testimony.

‘ ‘ The Court: I suppose under your opening statement, Mr. Dunham, you seek to show that there were some oral representations of warranty made contemporaneously with the making of the written agreement, whatever it was?

“Mr. Dunham: Yes; that is what I seek to show; which was the inducement for his signing it,—a statement made with reference to this machine. Now, if your honor has any question about it, I will submit the authorities.

“Mr. Judkins: It has been expressly held against it, and we have an authority in 85 Mich., a case exactly like this, on the same kind of contract.

The Court: We might as well dispose of that question now.

“Mr. Broten: I want the court to take this contract and compare it with the one in 85 Mich. As my associate has stated, if your honor please, we claim this is incompetent. This is the case of Blumenthal v. The National Cash-Register Company, that I spoke about some time ago.

“The Court: Where is it reported?

“Mr. Broten: 85 Mich. p. 464.

‘Mr. Dunham: What I propose to do is to show other things that were said concerning the machine. I propose to show that the agent stated to him what this would do, and what could not be done with it. It in no way varies the contract, because the contract is absolutely silent upon that proposition. If there was anything in there about it, then we could not produce parol evidence; and that is the trouble with their 85 Mich. Now, I submit that the question here is this: I am not seeking to change this contract, but I propose to show what was said by the agent that induced him to make that contract, and what he said about the machine, and I say that is what the authorities all hold. But, just as soon as you offer proof that will change the contract itself, you cannot do it.

“The Court: I was going to ask you, Mr. Dunham, if you would contend, under these authorities, that a parol warranty in relation to the machine might be added to such a contract as this,—a written contract.

“Mr. Dunham: Yes, your honor.

“The Court: A parol warranty ?

“Mr. Dunham: Yes, your honor. Now, see what the court says. This may not answer your honor’s question, but in this case it is permitted to be done, and the Supreme Court affirmed the case, and that is why I say this case answers your honor’s proposition. (Reading from report.)

“The Court: That case, it seems to me, is a little aside from the question here. I concede that in the sale of any instrument there would be an implied warranty that it was reasonably fit for the purpose intended, where sold for a specific purpose. And that case seems to hold that it was claimed the written agreement excluded any implied warranty, and the court held that could not be done.

“Mr. Dunham: What I propose to show by this witness,—I say there is no authority in Michigan contrary to that,—that what was said as to what could be done with this machine, explaining what the machine was, and the representations made that caused him to sign that order, are admissible. That is the position I take. I think I have read cases here that expressly held that in just that many words; because this I propose to show does not change or vary what is in the contract. But now, if the contract expressed anything about what this machine would do, they would be bound, by it, because they have attempted—. Where they attempted to say something in the contract, it is assumed that was all on the subject; but, where they say nothing on the subject, it is simply supplementing the contract, and is admissible. A number of cases hold that.

The Court: I understand Mr. Dunham’s claim is that the representation was made as to what the machine would do as an inducement to the making of the contract of sale.

“Mr. Dunham: That is the proposition.

“The Court: It seems to me, as the matter stands at present, this contract must be held to contain the agreement between the parties, in the absence of fraud and mistake. I think there is of necessity an implied warranty with the sale of a machine that it is fit for the purpose for which a cash, register is intended; but whether this testimony that is sought to be called out here touches what would be an implied warranty of the machine or not the court is not advised. I think the case in 85 Mich, fairly construes that kind of a contract. Although the matter that was offered there was clearly incompetent, yet at the same time what the court say in relation to this particular contract is, in substance, that it contained the agreement between the parties, and in fact states that it does, although that would not be necessarily conclusive. I think the objection will have to be sustained.

“Mr. Dunham: I just want to get it on record. I offer to prove by this defendant what statements were made by the plaintiff to him about how the machine would work, what it would do, and that it could not be ‘ manipulated ’ by a user so as to cheat and defraud him, and all representations made by the company—the plaintiff—to him that caused him to sign the contract offered in evidence. I make that offer.

“The Court: You offer that in the nature of a warranty, on which the defendant relied in making the purchase, I suppose ?

“Mr. Dunham: Well, I did not say that. That might be the effect of it. Whether it is in the nature of a warranty or not, it is simply what this machine would do. I will offer, in the same connection, to show by defendant that he relied upon these representations, and by reason of those representations that he purchased this machine.

The Court: I will sustain the objection.”

It is obvious that the court was ready to try the question of deceit if it was in the case, and that he was fully justified in understanding that 'no such claim was made. This being the only ground of error assigned so far as the trial is concerned, we are of the opinion that the judgment should not be reversed for such reason.

Error is assigned upon the denial of a motion for a new trial; but we think the reasons given by the learned circuit judge for such order are justified by the record, and show that his ruling was not erroneous.

The judgment is affirmed.

The other Justices concurred.


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    ROSECRANCE v. ROSECRANCE.
    1. Divorce—Evidence—Citing Appearance op Dependant.
    Under Circuit Court Rule No. 25, adopted by virtue of 1 Comp. Laws, § 211, the circuit judge has authority to require the defendant in a,proeonfesso divorce caseto appearand testify.
    2. Same—Declarations op Parties.
    3 Comp. Laws, § 8652, providing that no decree of divorce shall be granted solely on the declarations of the parties, refers to confessions, and not to the testimony of a party as a witness.
    3. Chancery Appeal—Review—Credibility op Witnesses.
    A certification by the circuit judge of his disbelief in the testimony adduced by a party to a chancery cause, notwithstanding the advantage possessed by such judge in seeing and hearing th^Mfcpesses, will not conclude the Supreme Court from reviewql^he case on the merits.
    Appeal from Ingham; Wiest, J.
    Submitted April 5, 1901.
    Decided July 2, 1901.
    Bill by Stella Rosecrance against Scott Rosecrance for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      (x. Edward Foerster, for complainant.
   Hooker, J.

The complainant has appealed from a decree denying her a divorce in a pro confesso case. The important testimony was given by herself, and her husband, the defendant, was called by order of the court. A decree was denied by the court upon two grounds:

First. That, “ considering complainant’s testimony, and viewing the manner in which she gave it, I cannot say that it satisfies me clearly, and I decline to make a judicial determination that it proves the cause for divorce alleged in the bill.”

Second. “ The complainant has not made a case. The statute provides (section 8652, 3 Comp. Laws), that‘no decree of divorce shall be made solely on the declarations * * * of the parties, but the court shall require other evidence of the facts alleged in the bill for that purpose; but either party may, if he or she elect, testify in relation to such facts.’ If the testimony of the complainant had been clear and satisfactory, I should still hesitate, until it was supported by other evidence of the facts alleged, to grant a decree.”

We think the court had authority to require the husband to appear and testify, under the statute (section 211, 1 Comp. Laws).

We think the court’s construction of section 8652 erroneous. The declarations there referred to are confessions, as contradistinguished from testimony as a witness.

While the conscience of the court is not to yield to testimony of a witness whom he disbelieves, and while we recognize the advantage of seeing and heajjj^rthe witness, and the presumption arising therefrom, tS^court is not concluded by the certification of disbelief, and by the presumption, from reviewing a case upon the merits. In the present case we are of the opinion that a divorce should have been granted upon the proofs.

The decree is reversed, and a decree of divorce granted, with costs of both courts.

The other Justices concurred


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    WARNER ELEVATOR MANUFACTURING CO. v. CAPITOL INVESTMENT. BUILDING & LOAN ASS’N.
    1. Conditional Sale — Mechanic's Lien — Concurrent Securities.
    The retention of title on a sale of chattels until payment of the purchase price is not inconsistent with the right of the seller to a mechanic’s lien against the property to which the chattels are attached.

      2. Same—Election of Remedies—Waiver.
    Nor is there such au inconsistency between the remedies of the-seller under his respective liens that, by an unsuccessful attempt to enforce a mechanic’s lien, he waives the right to claim title under the reservation.
    Case made from Ingham; Wiest, J.
    Submitted April 5, 1901.
    Decided July 2, 1901.
    Trover by the Warner Elevator Manufacturing Company against the Capitol Investment, Building & Loan Association. There was a judgment for defendant, and plaintiff assigns error.
    Reversed.

      Smedley & Corwin, for appellant.

      Cahill & Wood, for appellee:
    Cited, in support of the claim that plaintiff waived its lien under the contract, Thompson v. Howard, 31 Mich. 309; Nield v. Burton, 49 Mich. 53 (12 N. W. 906); Button v. Trader, 75 Mich. 295 (42 N. W. 834); Thomas v. Watt, 104 Mich. 201 (62 N. W. 345); Cooper v. Smith,. 109. Mich. 458 (67 N. W. 516).
   Hooker, J.

The plaintiff sold an elevator and attachments to the Imperial Hotel Company, of Petoskey, and erected it in its hotel, under a written contract reserving title to the machinery sold in the plaintiff, with the right to remove it in' case of a failure on the part of the hotel company to pay for it. The contract was made June 13, 1895, and it was shipped eight days later. On July 6, 1895, the hotel company borrowed $15,000 from the defendant, giving a mortgage upon the hotel by way of' security, which was recorded July 9, 1895. The erection of the elevator was completed on July 31, 1895. Payment not being made according to the terms of the contract, a statement of lien was filed on August 30, 1895, and on February 24,. 1896, a bill of complaint was filed to enforce the lien. A copy of the contract was attached to. the bill of complaint, and Us pendens was filed; but the proceedings were discontinued before this action was commenced, though after defendant had acquired title to the premises. Defendant did not foreclose its mortgage, but on January 26,1898, took a quitclaim deed of the premises from the hotel company. Subsequently the plaintiff made demand upon the defendant for the elevator, and* possession being refused by it, this action of trover was commenced to recover its value. The cause was tried before the court without a jury, and findings of fact and law were filed. The court held that the proceeding to enforce the lien was inconsistent with the claim of title, and that, having elected to file and attempt to enforce a lien, the right to claim title was waived; and the only question before us is whether the court erred in so holding and rendering judgment for the defendant.

The gist of the defendant’s contention is that a mechanic’s lien can only exist where work or materials have be. come a part of the realty. 'It is said that this is not so when the title to personal property is reserved in the vendor; that in such a case the personal property does not, in law, become a part of the realty, although affixed to it. The reason given is that the theory upon which the justice of the lien is sustained is that the labor and materials furnished by the lienor have enhanced the value of the land. If this is true, and by setting up a claim under the statute the vendor has admitted that the materials have become a part of the realty and cannot be separated from it, is the converse true, viz., that, until such admission is thus made, they had not become a part of the realty, and there was no fight of lien, because title was reserved? ‘That would seem to be a corollary of the former proposition. If so, the statutory lien could not co-exist with a reserved title, and the case would be within the rule' of McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719), and Sullivan v. Ross’ Estate, 113 Mich. 319 (76 N. W. 310). But the authorities forbid the assumption that a reservation of title is inconsistent with the existence of a statutory lien, holding that there may be cumulative remedies, and -consequently that absolute inseparability is not a condition to the existence of the statutory lien. Phil. Mech. Liens, § 9, states that the lien is a cumulative remedy provided by statute, and an incidental accompaniment to the contract, which may be pursued in connection with ordinary remedies. Case Manfg. Co. v. Smith, 40 Fed. 340 ( 5 L. R. A. 231), was a case where one reserving title set up a statutory lien. It was held that the retention of the title was in the nature of a specific lien upon the identical machinery furnished, and not inconsistent with the statutory lien. See, also, Clark v. Moore, 64 Ill. 273; Chicago & Alton R,. Co. v. Union Rolling-Mill Co., 109 U. S. 719 (3 Sup. Ct. 594).

Defendant contends that, admitting the fact that there may be cumulative liens, an election to enforce one of them waives the other, because it would be inconsistent with a claim of the right to enforce the other. It must be admitted that one who should sell the premises under a mechanic’s lien would lose the right to claim the material placed thereon under a reservation of title, and it may be that one who should take away the material under such a reservation might not be permitted to make up a deficiency by proceedings against the real estate under the statutory lien. However this may be (and we intimate no opinion), it does not follow that, in all cases where a futile effort to collect the claim is made, the creditor is thereafter limited to the' remedy first sought to be applied. Thus, in Fuller v. Byrne, 102 Mich. 461 (60 N. W. 980), where a judgment was taken for the purchase price of a piano, it was held that the effort to collect the debt by execution against the piano did not preclude the judgment creditor from setting up and relying upon his title to the piano. It is not an answer to say that the contract in that case clearly shows the intention. The remedies would be no less inconsistent on that account. The case of Kirkwood v. Hoxie, 95 Mich. 66 (54 N. W. 720, 35 Am. St. Rep. 549), holds that something more than the taking of judgment is necessary to waive a right to a statutory lien. The cases are numerous which hold that taking other security will, in the absence of evidence to the contrary, warrant the presumption that the lien is waived; but this presumption yields to the evident intent of the parties. This presumption is not to be indulged where there is only the substitution of one form of personal liability for another. Kirkwood v. Hoxie, supra, and cases cited; Hooven, Owens & Bentschler Co. v. Featherstone, 99 Fed. 180. The doctrine is indorsed in Peninsular General Electric Co. v. Norris, 100 Mich. 506 (59 N. W. 151).

The fallacy in this case is in the premise that the enforcement of a statutory lien necessarily implies that the debtor has acquired absolute title to the materials constituting the basis of the lien. We have seen, from the authorities cited, that both liens may exist up to the point of an attempt to enforce one or the other. Why should the attempt to apply the entire property (i. e., land and materials) to the extinction of the debt, under the statute, preclude the subsequent attempt to assert the lien upon the material under the reservation of title for the purpose, when the greater remedy fails ? The former rests upon the assumption that the landowner has acquired such a title as sets the statute in operation. We have seen that a conditional title will do this, and, if this is so, does it necessarily follow that an attempt to enforce the statutory lien is a recognition of more than the title necessary to its creation, i. e., a conditional title? We think not; and, that being so, there is no inconsistency in after-wards resorting to the reserved lien for the same purpose sought to be accomplished by the futile proceedings under the statute,—i. e., the collection of the debt. See, in this connection, Matthews v. Lucia, 55 Vt. 308; Child v. Allen, 33 Vt. 476; McMeekin v. Worcester, 99 Iowa, 243 (68 N. W. 680).

We are of the opinion that the court erred in entering judgment for the defendant. The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    DAWSON v. CHIPPEWA CIRCUIT JUDGE.
    1. Ejectment—Writ oe Possession—Notice.
    A writ of possession in ejectment may issue without notice to defendant.
    3. Same—Taxation oe Costs.
    And it is not necessary that costs be first taxed; 3 Comp. Laws, § 11201, providing that one entitled to such writ may include ■therein an execution for costs, being permissive only, and implying the right to elect to take separate writs.
    3. Same—New Trial.
    The fact that defendant has a statutory right to a new trial does not militate against plaintiff’s right to the writ, since 3 Comp. Laws, § 10986, recognizes the fact that plaintiff may lawfully have obtained possession before a motion for a new trial, and provides that he may retain possession pending such trial.

      Mandamus by Carrie A. Dawson to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate an order recalling a writ of possession.
    Submitted April 16, 901.
    Writ granted July 2, 1901.

      E. 8. B. Sutton and John W. Shine, for relator.

      George A. Cady (John H. Goff, of counsel), for respondent.
   Per Curiam.

This is an application for mandamus requiring respondent to vacate an order recalling a writ of possession. The writ was issued in an action of ejectment upon a judgment for plaintiff affirmed in this court (Dawson v. Falls City Boat Club, 125 Mich. 433, 84 N. W. 618), and after remittitur filed in the circuit. Two reasons are urged why the writ of possession should not have been issued: First, that no notice of an application for the writ was filed; and, second, that costs had not yet been taxed.

The writ was issuable without notice and as of course, and might be issued in vacation as well as term time. Christler v. Locke, 103 Mich. 86 (61 N. W. 263 ).

Nor was it necessary to wait for taxation of costs before issuing the writ. Section 11201, 3 Comp. Laws, providing that one entitled to a writ of possession may include in the same writ an execution against the property, is permissive, and implies the right to elect to take separate writs.

The fact that in ejectment the defendant has a statutory right to a new trial does not militate against plaintiff’s right to a writ of possession. 3 Comp. Laws, § 10986, recognizes the fact that plaintiff may lawfully have obtained possession before a motion for a new trial, and provides that he may retain such possession pending a new trial.

The writ will issue.'


text:
    WHEELER v. CITY OF DETROIT.
    1. Municipal Corporations—Negligent Injuries — Claim for Compensation—Secondary Evidence.
    Where, in an action against a city for negligent injuries, plaintiff’s witness testified that he presented her petition for compensation to the city clerk, that he afterwards applied to the clerk for the petition, and that neither the clerk nor the witness was able to find it among the files, parol evidence of the contents of the petition was admissible, though no formal notice to produce it had been given.
    •2. Same—Sufficiency of Notice to City.
    Under a statute requiring notice to be given to a city of “the time, place, and cause ” of an injury for which damages are claimed, a notice stating that claimant was injured by stepping into a hole in a sidewalk “ on the east side of F. street, between L. and P. streets,” is sufficiently definite as to locality, where received and acted on by the council without objection.

      3. Courts—Judicial Notice—Public Highways.
    A court may take judicial notice that a designated street in a city where it presides is a public, highway.
    4. Trial—Remarks oe Counsel—Appeal.
    An exception to the remarks of counsel in addressing the jury will not be considered on appeal where the attention of the trial court was not called to the language complained of.
    Error to Wayne; Waite, J.
    Submitted April 17, 1901.
    Decided July 2, 1901.
    Case by Ethel Wheeler, an infant, by next friend, against the city of Detroit, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    P. J. M. Hally (T. E. Tarsney, of counsel), for appellant.

      Frederic T. Harward, for appellee.
   Hooker, J.

The defendant has appealed from a verdict and judgment rendered against it in an action for negligence. The plaintiff, a young woman, is alleged to have stepped into a hole in the sidewalk upon one of the streets of the city, existing by reason of the loosening or removal of one or more of the boards of which the walk was constructed.

Under the provisions of the charter, it was essential that a claim should be presented to the common council before suit. See Detroit City Charter, § 86; Springer v. City of Detroit, 102 Mich. 302, 118 Mich. 69 (60 N. W. 688, 76 N. W. 122). Proof of the presentation of a notice to the law department of the city was made. This, described the accident as occurring while she was walking on the sidewalk on the east side of Fifteenth street, between Linden and Poplar streets. It is claimed that this description of the place was not sufficiently definite. The. records of the common council were offered, and showed that a petition was presented by Charles. Gf. Wheeler, on behalf of Ethel Wheeler, for 'compensation for injuries suffered through a fall upon a defective sidewalk; that a committee reported that there was no legal liability, and a recommendation that compensation be denied, which report was accepted and adopted. It was objected that the petition referred to in these proceedings was not produced by the plaintiff. Thereupon it was shown that a petition was presented to the city clerk, that the clerk looked through his files in the witness’ presence, and that he looked, and they could not find it. It was contended that this did not warrant secondary evidence of the contents of the petition. We think the testimony was competent. The paper was traced to the city, and, though no formal notice to produce it was given, application was made to the proper custodian, who was unable to produce it. Had a formal notice been given at the time of the trial, it would have been sufficient, subject to a reasonable delay, if, in the opinion of the court, one was required. The offer of the proof was tantamount to a notice, under the circumstances. There was no claim of surprise, or intimation that time was desired to contradict this proof. We think, also, that it was competent to permit the jury to find that the petition referred to this claim.

A more important question relates to the description of the place. We have recently held that, under the circumstances of the case, a limitation of the place to a point in front of a lot in a certain block was sufficient. Here the statement is that it is on a walk on the east side of Fifteenth street, between two other streets; hence, within a distance of not less than a block,—possibly many blocks. But presumptions are in favor of the validity of the action of the trial court, who might lawfully take judicial notice that these were public streets. Porter v. Waring, 69 N. Y. 250. If, therefore, we conclude that this was a limitation to one block, is that sufficiently definite ? In the recent case of Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256), we held that it was not the object of the lawmakers to require technical accuracy in a notice, and that one which fairly apprised the council of the required facts was sufficient, where it was accepted and acted upon without objection. We think the present case is fairly within the rule laid dow-n, as it appears that the council' did not ask for more specific information, but, by its consideration of the claim, allowed the plaintiff to infer that it was satisfactory.

Complaint is made of the language of the circuit judge in excluding certain testimony. The defendant’s counsel sought to show by a truant officer that the girl was out nights, and by a physician that she had other ailments, and the judge evidently thought it an attempt to disparage her character. If it be thought that the judicial equilibrium was slightly disturbed, the effect of the offer, if intended to introduce such an element into the case, was w.ell calculated to induce it, for the testimony was not admissible for such a purpose. It is now contended that the offer had another object; but we do not discover that counsel apprised the trial court of such object. Had he done so, the court would doubtless have given full consideration to the question raised. ,

The record shows the following:

“ During the opening argument of plaintiff’s counsel to the jury, defendant’s counsel took exception to the following remarks: * Mr. Hamoard: This crowd of detectives here for the city would as soon besmirch the reputation of a girl or woman, if they could thereby win a verdict. They have brought in here everything which they could find to blacken her reputation, and then they couldn’t prove anything.’ This exception was noted without the court’s ruling upon the remark.”

It is said in plaintiff’s brief, and not contradicted by the supplemental brief of the defendant, that the judge’s attention was not called to these remarks, and the exception was noted without taking the ruling of the court. If. this is so, the defendant is in no situation to raise the point. Bedford v. Penney, 65 Mich. 669 (32 N. W. 888 ); Henry G. Hart Manfg. Co. v. Mann's Boudoir Car Co., 65 Mich. 565 (32 N. W. 820).

Several other points are raised, but we think none of them require discussion. We find no error, and the judgment is therefore affirmed.

Montgomery, C. J., Moore and Long, JJ., concurred. Grant, J., took no part in the decision.


text:
    McWETHY v. DETROIT, GRAND RAPIDS & WESTERN RAILROAD CO.
    Carriers—Tickets—Conditions—Breach oe Contract—Assumption oe Risk by Passenger.
    Plaintiff purchased of defendant’s agent a ticket for transportation to a point beyond defendant’s line of road. The agent represented that the ticket included a berth on a connecting boat; and the words on the ticket, “ berth and meals extra,” were stricken out in red ink. The purser refused to give plaintiff a berth without extra pay, whereupon, though having with her the sum demanded for a berth, she lay all night on a couch in the cabin. She afterwards sued in case, claiming to have contracted an illness from the exposure, due in part to the fact that the cabin door stood open during the night.

      Held, that she assumed the risk of occupying the couch, and could not recover.

      Held, further:
    (1) That, if her ticket entitled her to a berth, the wrong in refusing it was not the wrong of 'defendant.
    (2) That she was chgrgeable with notice of the conditions printed on her ticket, to the effect that defendant acted merely as agent in selling it, and was not responsible beyond its own line, and that no liability should arise by reason of any statement by any employé not in accordance with the' contract.
    Error to Wayne; Waite, J.
    Submitted April 18, 1901.
    Decided July 2, 1901.
    Case by Emily McWethy against the Detroit, Grand Rapids & Western Railroad Company for injuries sustained by reason of defendant’s failure to supply her with a proper ticket. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Baker & Clark, for appellant.

      Frederick W. Stevens ( Charles McPherson, of counsel), for appellee:
    Relied on VanDusan v. Railway Co., 97 Mich. 439 (56N. W. 848, 37 Am. St. Rep. 354), and the cases there cited.
   Hooker, J.

The plaintiff’s husband purchased round-trip tickets for the plaintiff and their son from Detroit to Chicago. It seems to bo conceded that these tickets were purchased from an agent of the defendant. The ticket consisted of several coupons, and provided for a continuous passage over several railway lines and by steamboat. The husband testified that tho agent represented to him that these tickets entitled passengers to berths on the steamer, and that he looked tho ticket over, and did not remember of seeing any réd-ink marks upon it. Thé plaintiff- testified that the tickets called for berths, but, on presenting them to the purser and asking for berths, he told her sho would have to pay extra for them, whereupon she decided to take no berth, and lay on a couch in the cabin all night, both going and coming. The purser tore off her berth tickets, and kept them. The plaintiff offered in evidenco a copy of the ticket sold to her husband for plaintiff’s use. It was as follows:

“DETROIT, LANSING & NORTHERN RAILROAD.

“Excursion Ticket.

“Good for one first-class passage, station stamped on back to Chicago, Illinois, and return, when officially dated, stamped on back hereof, and presented with coupons attached.

“Subject to the following conditions: In consideration of the reduced rate at which this ticket is sold, the purchaser agrees to and with the several companies over whose lines this ticket entitles him to be carried, as follows, to wit: (First) That in selling this ticket and checking baggage hereon this company acts as agent, and is not responsible beyond its own line. (Second) That any alteration whatever of this ticket renders it void; that the coupons belonging to it will not be received for passage if detached. (Third) That for the going journey it is good for continuous passage only, and not later than following date of sale as stamped on back hereof. (Fourth) That it will be valid only for continuous passage returning, and not later than- October 8th, 1898. (Fifth) That baggage liability is limited to wearing apparel, not exceeding $100 in value. (Sixth) That the purchaser will not hold any of the lines named in this ticket liable for damages on account of any statement not in accordance with this contract, made by any employé of said lines. (Seventh) That it is especially agreed and understood by the purchaser that no agent or employe of any of the lines named in this ticket has any power to alter, modify, or waive in any manner any of the conditions named in this contract. (Eighth) That, unless all the conditions of this ticket are fully complied with, it shall be void, and the conductor of either companies over which this ticket reads may, upon its presentation, take it up, and collect full fare.

“George DeHaven,

“General Passenger Agent.

“Detroit, Lansing & Northern Railroad. 276.

Detroit, Lansing & Northern Railroad. Grand Rapids to station stamped on back, on conditions named in contract.

“* Punch star. 2654 x. First-class. This check not good if detached. [And on the margin marked:] Destination : Chicago and return.

“Detroit, Lansing & Northern Railroad. 181.

“Chicago & West Michigan Railway. Holland or, Ottawa Beach to Grand Rapids, on conditions named in contract.

“* Punch star. 2-654 x. First-class. This check not good if detached. [On margin:'] Destination: Chicago and return. 10. 11.

“Detroit, Lansing & Northern Railroad.

“ Holland & Chicago Transportation Company. Chicago to Holland or Ottawa Beach. Berth and meals extra

* [stricken out in red ink]. On conditions named in contract. 2654 x. First-class. This check not good if detached. [ On margin:] Chicago and return.

“Detroit, Lansing & Northern Railroad.

“ Holland & Chicago Transportation Company. Holland or Ottawa Beach to Chicago. Berth and meals extra [stricken out in red ink]. On conditions named in contract. 2654 x. First-class. This check not good if detached. [On margin:] Chicago and return.

“Detroit, Lansing & Northern Railroad. 181.

‘ ‘ Chicago & West Michigan Railway. Grand Rapids to Holland or Ottawa Beach, on conditions named in contract.

“* Punch star. 2654 x. First-class. This check not good if detached. [On margin:] Destination: Chicago' and return.

“Detroit, Lansing & Northern Railroad. 276.

“Detroit, Lansing & Northern Railroad. Station stamped on back to Grand Rapids, on conditions named in contract.

“ * Punch star. 2654 x. First-class. This check ’ not good if detached. [On margin:] Destination: Chicago and return.”

[Under each one of these is “ D., L. & N., C. & W.. M., Tr., H. & C. T. Co.”]

“ Detroit, Lansing & Northern Railroad.

‘ ‘ Omnibus transfer. C. & W. M. Ry. station (Holland )■ to H. & C. T. Co.’s dock (Holland), on conditions named in contract. 2654 x. First-class. This check not good if detached. [On margin:] Destination: Chicago and. return.

’ “ Detroit, Lansing & Northern Railroad.

“ Omnibus transfer. H. & C. T. Co.’s dock (Holland) to C. & W. M. Ry. station (Holland), on conditions named in contract. 2654 x. First-class. This check not good if detached. [ On . margin:] Destination: Chicago and return.”

[On the back of each of the coupons is marked: “De-

troit A.”]

Testimony was introduced tending to show that the plaintiff suffered from cold owing to want of covering, and the fact that the cabin door stood open during a cold and stormy night, and that she suffered from rheumatism and other illness in consequence thereof. It was shown that she had money enough to have paid for her berth, but expected to put it to other uses. She was going to visit her sister fop about three weeks. The court directed a verdict for the defendant, holding that she did not use ordinary care to protect herself by trying to avoid drafts or shut the door, or by paying the cost of a berth, and afterwards asking to be repaid if she was entitled to it.

We think the court might have added that if, as the witness testified, her ticket entitled her to berths, and the purser refused them to her, the wrong was not that of this defendant, who sold the ticket. Moreover, the ticket shows upon its face that it was sold at a reduced fare, upon conditions printed thereon, that the defendant acted merely as agent, and was not responsible beyond its own line, and that the purchaser should not hold any of the lines named liable for damages on account of any statement not in accordance with this contract, made by any • employe of said lines. There was ample opportunity for the plaintiff and her husband to read and understand these conditions before she started on her trip. She saw fit to take the risk of occupying the couch, rather than to pay the small sum demanded for a' berth, and should be held to have accepted the risk

The judgment is affirmed.

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


text:
    CHIPPEWA HARDWARE CO. v. ATWOOD.
    1. Taxation—Assessment—Partnership Associations—Identity on Parties.
    A seizure oí the property of a partnership association to satisfy a tax assessed against its predecessor in business cannot he sustained on the ground that the parties are xiractically identical, where such association was not in existence at the time the assessment was made, and some of its stockholders had no interest whatever in the former business.
    3. Same—Sale oe Personalty—Tax Lien.
    A bona fide purchaser of personal property prior to the 1st day of December in any year takes it free from any lien for taxes assessed against the seller for that year. 1 Comp. Laws, §§ 3840, 3863.
    Case made from Chippewa; Steere, J.
    Submitted April 18, 1901.
    Decided July 2, 1901.
    Replevin by the Chippewa Hardware Company, Limited, against Frank B. Atwood, treasurer of the city of Sault Ste. Marie, to recover property seized for taxes. There was a judgment for defendant, and plaintiff assigns error.
    Reversed.

      E. S. B. Sutton (C. L. Collins, of counsel), for appellant.

      John W. Shine, for appellee.
   Hooker, J.

The Ferguson Hardware Company did business in Sault Ste. Marie for many years. In 1896 it was succeeded by the Ferguson Hardware Company, Limited. The property replevied was originally purchased by the Ferguson Hardware Company, Limited, in the usual course of its business. Subsequently, and in 1898, it gave a chattel mortgage upon the same to George E. C. Seaman, as trustee for its creditors, and in April, 1899, he took possession under the mortgage. On May 12th he sold it at foreclosure sale to Sutton, trustee for a Mr. Chesbrough, who was both a stockholder and a creditor of the Ferguson Hardware Company, Limited. Between May 12th and June 26th, Sutton, in good faith, transferred his title to Chesbrough, and on or before June 26th Chesbrough gave a bill of sale to the Chippewa Hardware Company', Limited, whose articles of association are dated June 1st, and acknowledged on that date by Chesbrough and wife, and on June 22d by Seaman and other stockholders. The plaintiff continued to own the property until after the date of the commencement of this action. The stock of hardware was assessed on the roll for the' year 3899 to the “Ferguson Hardware Company,” as it had been for the years 1896, 1897, and 1898, the taxes for those years having been paid by the Ferguson Hardware Company, Limited, in whose name they should have been assessed. Petrie Lumber Co. v. Collins, 66 Mich. 64 (32 N. W. 923); Iron Star Co. v. Wehse, 117 Mich. 487 (76 N. W. 66). The defendant, who is tax collector for the city, levied upon this property for the purpose of enforcing payment of the tax, and the plaintiff replevied it. The cause was tried by the court without a jury, and a judgment was rendered for the defendant, from which plaintiff has appealed.

The findings of fact show the foregoing facts, and, further, that Chesbrough and Church’ organized the Ferguson Hardware Company, Limited. In April, 1899, Chesbrough, who had acquired the interest of Church in the Ferguson Hardware Company, Limited, caused the trust mortgage to be foreclosed. The principal owners of the stock of these companies were Chesbrough and Church, some others, holding small interests, being associated with them; but there have at all times been some stockholders of the plaintiff company who were not stockholders in the Ferguson Company. Chesbrough had no ownership of any of this property, except such as the ownership of his shares of stock gave him.

The court was of the opinion that the parties seeking to replevy are practically the same against whom the property was assessed, and that the assessment under the name of the Ferguson Company was not, therefore, fatal ■ to defendant’s right to collect; citing the cases of Petrie Lumber Co. v. Collins, supra; Gratwick, etc., Lumber Co. v. Village of Oscoda, 97 Mich. 221 (56 N. W. 600); Fletcher v. Post, 104 Mich. 424 (62 N. W. 574); Iron Star Co. v. Wehse, 117 Mich. 487 (76 N. W. 66); Gray v. Finn, 96 Mich. 62 (55 N. W, 615). We consider the' first four cases cited by the court not in point, for the reason that the plaintiff did not exist, and was not, therefore, subject to be assessed, until June 1st. Moreover, it had no property until some time after it was organized. The case of Gray v. Finn might be in point if we were able to say that this was a pretended and fraudulent sale, and the property had been levied upon as the property of the Ferguson Hardware Company, Limited. But this was not found by the circuit judge. The two companies were different persons in the law, composed of different stockholders. The judge found that the foreclosure proceedings were regular, and the sale and transfer made in good faith; and the fact that Chesbrough and Church were largely interested throughout is not enough to make them liable for the tax of the Ferguson Company, Limited, or “in privity with the [former] owners to such an extent as to be precluded by the statute from bringing replevin ” for these goods. 1 Comp. Laws, § 3836, requires personal property to be assessed to the owner on the second Monday of April of the year for which the assessment is made; and section 3840 provides that “no change of location or sale of any personal property after the first day of May in any one year shall affect the assessment made in such year.” No lien had attached to these goods, and they weré lawfully sold. The purchasers took them free from any obligation to pay any tax assessed against the Ferguson Company, which was still liable for the tax. There is no occasion to discuss other questions.

The judgment is reversed, and a judgment will be entered in this cause in favor of plaintiff, with damages assessed at six cents, and with costs of both courts. .

The other Justices concurred.