author: Hooker, J.

text:
    PATRICK v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF KALAMAZOO.
    1. Dedication — Plats—Public Uses.
    2 Terr. Laws, 577, which provides that an acknowledged and recorded plat, describing lands intended for streets, commons, or “ other public uses,” shall be deemed a sufficient conveyance to vest the fee in the county, in trust for the purposes expressed, does not apply to land appropriated on a plat to religious denominations, theirs not being a public use, within the meaning of the act.
    2. Same.
    A common-law dedication does not convey a fee.
    3. Deeds — Reservation—Construction.
    A conveyance of a specified portion of a quarter-section of land, with the exception of the “streets and squares” in a village included within it, may, in the absence of other means of interpretation, be construed with reference to a recorded plat made by the grantor, although not alluded to in the deed, and held to except a parcel designated in the plat as a “ church square.”
    4. Same.
    The owners of certain land platted into village lots executed a deed of their interest, excepting, however, from the grant, certain specified lots, and inserting in the deed, after such exception, the following clause: “Together with all the ground intended for streets and public purposes,” etc. Held, that the clause was a further reservation, and not an additional grant.
    5. Common-Law Dedication — Plat as Evidence.
    Where land was marked “church square” on a plat filed by the owner, and a marginal reference stated that it was appropriated to the first four religious denominations erecting buildings thereon, it is evidence as an act in pais, though not within the existing statute respecting dedications of land to public purposes, of a dedication at common law to the denominations appropriating the square.
    6. Same — Adverse Possession.
    Where lands dedicated to the use of a religious denomination, after being occupied under the dedication for several years, are deeded away to a party not within the terms of the dedication, the latter cannot join the grantor’s occupancy with his own to establish an adverse holding against the owner of the reversion.
    7. Same — Denominational Use — Power of Transfer.
    A religious society holding lands under a dedication to the use of the denomination it represents cannot transfer the title to a society of a different denomination, or to one that is undenominational.
    8. Same — Abandonment.
    After a church society had erected a building on a lot dedicated to the use of one of the first four religious denominations forming a society in the town and erecting a building on the lot, it conveyed the lot to a Young Men’s Christian Association, which demolished the church building, and erected a building adapted to its own wants. Held, an abandonment of the use for which the lot 'was' dedicated, entitling the holders of the reversionary interest to the lot.
    Error to Kalamazoo; Buck, J.
    Submitted October 21, 1898.
    Decided May 23, 1899.
    . Ejectment by Howard M. Patrick and others against the Young Men’s Christian Association of Kalamazoo. From a judgment for defendant, plaintiffs bring error.
    Reversed. •

      Charles A. Withey (James B. McMahon, of counsel), for appellants.

      Boudemcm & Adams, for appellee.
   Hooker, J.

The plaintiffs are some of the heirs at law of Johnson Patrick, and the action is ejectment, brought to recover the undivided 15-32 of the N. W. i of Church Square, in the city of Kalamazoo (formerly known as the “Town of Bronson”), from its present occupant, the Young Men’s Christian Association. This property is situate upon the W. of the S. W. £ of section 15, which was located and paid for at the federal land office on November 1, 1830, by Stephen H. Richardson, and on June 1, 1831, a patent was issued to him from the United States. A few weeks before the patent issued, and on March 12, 1831, Richardson and one Titus Bronson caused to be placed on record in the office of the register of deeds of the county a plat of the village of Bronson, on which plat the land in dispute, with other land, was marked “Church Square,” with these explanatory words on the margin of the plat:

“The Church Square is sixteen rods square, and is appropriated to the four first religious denominations who may form societies in the foregoing town, and erect buildings thereon; one-fourth to the benefit of each society. ”

This plat was not signed by Richardson or Bronson, but was acknowledged by both.

On January 5, 1833, Richardson gave a warranty deed of the W.- £ of the S. W. £ of section 15 to 'Sally Bronson, excepting from the conveyance “the streets and squares of the village of Bronson.” On May 4, 1836, Titus Bronson and Sally Bronson, his wife, conveyed to John Berdan, by. warranty deed, the W. £ of S. W. £ of section 15, with certain exceptions. Counsel for the plaintiffs contend that Church Square was excepted; counsel for the defendant, that it was not. We are of the opinion that it was excepted, but defer a further statement of the contents of the deed until we reach the question in its proper order, if it' shall be thought necessary discuss it. On October 24, 1836, Berdan and wife gave to Sheldon and Burdick a warranty deed of the same land, making the same exceptions.

On March 8, 1838, Richardson and wife gave a quitclaim deed to Johnson.Patrick of the west half aforesaid, without any exception of streets or squares; and on April 2, 1838, Johnson Patrick and wife quitclaimed the same, without exceptions, to Dan Arnold. On January 3, 1839, Dan Arnold quitclaimed to Sheldon and Burdick “all that part of the west half [ aforesaid ] conveyed by Titus Bronson and wife to John Berdan by deed.of May 4, 1836,” and on the same day, viz., January 3, 1839, Arnold quit-claimed to Johnson Patrick all his right and title to the undivided three-fourths of the west half aforesaid. We interrupt the statement to call attention to the fact that the title conveyed to Patrick depends on what Arnold had left after his conveyance to Sheldon and Burdick, which in turn depends upon the .interest conveyed to Berdan by the deed from the Bronsons; and, if the deed from Richardson to the Bronsons excepted Church Square, it is manifest that Berdan received no title to Church Square. If it can be said that the title actually conveyed by Berdan is the test of the description in the first deed from Arnold, it is unnecessary to construe the deed to Berdan; but if we say that the measure .of the Arnold deed to Sheldon and Bur-dick is to depend on the meaning of the description in the deed to Berdan, irrespective of the question of his grant- or’s title, it is a vital question, because Patrick acquired no title whatever to Church Square if it can be said to have been conveyed to Sheldon and Burdick from Arnold, who apparently had it, unless the plat completely devested Richardson of the title, which is one of the questions in the case.

Passing the question for the present, and resuming the statement of fact, we find a number of other deeds, which do not affect the case, except as they aid in bringing outstanding claims of title into the defendant. Among them are conveyances from othef heirs of Johnson Patrick. - In 1837, St. Luke’s Protestant Episcopal Society was formed, and erected a church building on the premises, and occupied the lot until March 18, 1887, when it deeded the property by quitclaim deed to Senator Stockbridge, receiving from him therefor the sum of $6,500. He bought it for the purpose of donating it to the Young Men’s Christian Association with a view to the erection of an expensive building thereon, and -soon after deeded it to that society, to apply upon his subscription of $10,000 for that object. The building was thereupon erected at a cost approximating $25,000, and. it has since been occupied and used for the ordinary purposes of such society.

It is a trite axiom that in ejectment a plaintiff must rely upon the strength of his own, rather than the weakness of his adversary’s, title. We have seen that all of these claims of title come from Richardson, who made several instruments of conveyarice. First in order is the plat. If the plat was valid, and conveyed an absolute fee to the religious society, it is manifestly the end of the plaintiffs’ claim, because Richardson then parted with his entire title. If it was valid, but did not convey the fee, the plaintiffs must show that they own the reversionary interest. This plat appears to have been made and recorded under a territorial law, first enacted in 1821. 1 Terr. Laws, p. 816, § 1. In 1827 it was re-enacted, with some additional provisions relating to the vacation of plats. 2 Terr. Laws, 577. Section 2 of said act is the important one in this controversy, and is as follows:

“ Sec. 2. That such maps or plats as are required by this act to be recorded shall particularly set forth and describe all the public grounds within such town, by its boundaries, courses, and extent, and whether it be intended for streets, alleys, commons, or other public uses, and all the lots intended for sale, by progressive numbers, and their precise length and width; and the maps, made and acknowledged before a justice of the peace, a justice of the county court of the proper town where the town lies, or before a judge of the Supreme Court, and certified under the hand and seal of the judge or justice taking such acknowledgment, and recorded, shall be deemed a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended to be for public uses, in the county in which such town lies, in trust to and for the uses and purposes therein named, expressed, or intended, and for no other use or purpose whatever.”

Counsel for the plaintiffs contend that a statutory dedication was not effected, for want of a strict compliance with the statute; but we will pass this point.

In its early days the common law recognized dedication of land for highway purposes without grant or covenant, but it is doubtful if the rule went further. A discussion of this subject will be found in the opinion of the late Chief Justice Campbell in the case of Baker v. Johnston, 21 Mich. 340. The opinion' recognizes the fact, however, that the weight of authority in this country sustains the proposition that the mere want of a grantee will not defeat a dedication of lands for well-defined public purposes, upon an analogy to charitable trusts, which will not be allowed to fail for the mere want of a trustee, where the purposes are clear and well defined, and the instrument by means of which the trust is sought to be created is in other respects adequate to the purpose. In both cases the necessity of definiteness was recognized, while in cases of dedication to public uses it was as important that there should be some one authorized to accept land dedicated for different and specific purposes in their nature public before the dedication could be made effective as it was that there be some one to assume the management qí a trust before it could become operative. The opinion cited shows that the doctrine of the common law has been applied to public squares, commons, and parks, and there are cases that hold that gifts may be made to charitable and religious uses in the same way. In Hunter v. Trustees of Sandy Hill, 6 Hill, 411, it is said:

‘ ‘ Land may be dedicated to pious and charitable purposes, as well as for public ways, commons, and other easements in the nature of ways, so as to conclude the owner who makes the dedication. This is the general doctrine. Pearsall v. Post, 20 Wend. 111, 22 Wend. 425. Public highways, and sites for court-houses, churches, and other public buildings, are familiar instances of the application of the principle. It has been applied to the reservation of a spring of water for public use (McConnell v. Town of Lexington, 12 Wheat. 582; and see City of Cincinnati v. White’s Lessee, 6 Pet. 438; also 20 Wend. 120, 22 Wend. 452); to a public square in a village ( Trustees of Watertown v. Cowen, 4 Paige, 510 [27 Am. Dec. 80]); and to a public burying ground (Beatty v. Kurtz, 2 Pet. 566. See, also, 6 Pet. 431; 22 Wend. 454, 455, 473; Stater v. Trask, 6 Vt. 355 [27 Am. Dec. 554]).”

In the case of Benn v. Hatcher, 81 Va. 25 (59 Am. Rep. 645), it was held that a dedication of land for a cemetery was valid, and it was said that:

“In its technical legal sense, dedication is the appropriation of land for a public use, — as for a highway, a common, or the like, — but may be effectual, it seems, when made to a pious or charitable use, though not distinctively a public one.”

The statute in question provides in express terms that the plat shall have the effect to convey the fee of land dedicated to public uses to the county. A plat conforming to. the statute, then, operates as a conveyance of a fee, though probably it is a base fee. This was an innovation, for under the common-law rule the owner held the fee in trust to the use of the public; but some of the difficulties resulting from this innovation are elucidated by the opinion in the Michigan case last cited, indicating sufficient reasons for a statute which should give to a formal offer of dedication of public ground by a plat the effect of a conveyance by way of grant to uses, and providing a grantee.

A more important question, however, is whether the statute was designed to apply to any dedication other than those made for general public purposes, and whether it is broad enough to permit the plat to be made a medium for the conveyance of land for all kinds of charities or pious uses. In this country we have no established church, and religious uses are in the hands of corporations or voluntary associations. The same is true, with a few exceptions, of charities, such as colleges, hospitals, etc.; and, while dedications may be made to these, there is no apparent reason for requiring the owner to part with the fee, especially as it is after all only a conveyance to uses, and, if the fee were conveyed, it would be but a base fee, determinable on the happening of a collateral event. Again, by the language of the act this provision applies only to “public ground.” Public ground, in the ordinary sense, is ground in which the general public has a common use; and it would not accord with the common understanding of the language used to say that land devoted to the use of a local religious society, or hospital, or academy, created for church, hospital, or academic purposes, is public ground, even if the use be considered, in a sense, public; and, in the absence of a clear intention to include such, the statute ought not to be so construed. Again, the statute itself contains internal evidences that dedications for such purposes were not designed to be within its meaning; for it illustrates the class of public uses to which it alludes, viz., “streets, alleys, commons, or other public uses,” and thus, under the settled rule of ejusdem generis, its effect was restricted to public uses of a similar nature. See End. Interp. Stat. 405 et seq. "We are of the opinion, therefore, that there was no statutory dedication, and that the fee remained in Richardson until he conveyed it to Johnson Patrick.

Common-law dedications do not ordinarily convey the fee. In fact, under the strict rule they never do. See cases cited 9 Am. & Eng. Enc. Law (2d Ed.), 73, note 2; Baker v. Johnston, supra. And though it has been said that “there may be a dedication which is essentially a grant, in which the fee passes,” the cases cited in support of the proposition seem to depend upon formal conveyances or statutes. 9 Am. & Eng. Enc. Law (2d Ed.), 74. Thus, in Van Ness v. City of Washington, 4 Pet. 232, the question was whether the federal government acquired title in fee to the land occupied by streets and public squares in the city of Washington, and the case turned upon the construction to be given to a grant contained in a deed to the government. The case of Hoadley v. City & County of San Francisco, 50 Cal. 265, arose upon a statute, and the same is true in U. S. v. Illinois Cent. R. Co., 2 Biss. 174, Village of Grandville v. Jenison, 84 Mich. 54, and a large number of other cases; and even in such cases it has been held that a base fee only is conveyed, which is determinable on the happening of a given collateral event. 9 Am. & Eng. Enc. Law (2d Ed.), 74. In the case of Hunter v. Trustees of Sandy Hill, supra, it is said:

“ ‘Dedication,’ as the term is used in reference to this subject, is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner. The law which governs such cases is anomalous. Under it, rights are parted with and acquired in modes and by means unusual and peculiar. Ordinarily, some conveyance or written.instrument is required to transmit a right to real property; but the law applicable to dedications is different. A dedication may be made without writing, — by act in pais, as well as by deed. It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, and not the permanent estate. Its effect is not to deprive a party of title to his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. City of Cincinnati v. White’s Lessee, 6 Pet. 431, 438. The principle upon which the estoppel rests is that it would be dishonest, immoral, or indecent, and in some instances even sacrilegious, to reclaim at pleasure property which has been solemnly devoted to the use of the public, or in furtherance of some charitable or pious object. The law therefore will not permit any one thus to break his own plighted faith; to disappoint honest expectations thus excited, and upon which reliance has been placed. The principle is one .of sound morals and of most obvious equity, and is in the strictest sense a part of the law of the land. It is known in all courts, and may as well be enforced at law as in equity. , This being a case to which the law of dedication applies, the use for which the dedication was made must determine the extent of the right parted with by the owner of the land and acquired by the public. 6 Pet. 438. Where, as in the case of a highway, the public acquire but a mere right of passage, the owner who makes the dedication retains a right to use the land in any way compatible with the full enjoyment of the public easement.”

In that case land used for a cemetery was in dispute. The public having laid a road through it, the original owner claimed a forfeiture. In conclusion the court said:

“When the street was opened, a part of the dead, and a part only, had been exhumed, and removed to the new burial ground, and the residue of the bodies still remain. Before the suit was instituted, this part of the old graveyard was inclosed, and placed in its former condition; the whole constituting, as it formerly did, but one burial place. We think the judge ruled correctly that the plaintiff had no right to the possession, and the nonsuit was therefore proper. What right, if any, may hereafter arise in favor of those who can make title from the original owners, it is not necessary now to inquire. The land is still a public graveyard, inclosed, known, and recognized as such. When these graves shall have worn away, when they who now weep over them shall have found kindred resting places for themselves, when nothing shall remain to distinguish this spot from the common earth around, and it shall be wholly unknown as a graveyard, it may be that some one who can establish a good ‘ paper title’ will have a right to its possession, for it will then have lost its identity as a burial ground, and with that all right founded on the dedication must necessarily become extinct.”

No fee having passed through the dedication, we must examine the deeds subsequently made by Richardson. His first deed was a warranty deed to Sally Bronson of the west half of the quarter section, in which he excepted the streets of the village of Bronson. What was meant by the expression, “with the exception of streets and squares in the village of Bronson?” No allusion is made in the deed to any plat, but we cannot conceive of any other method of interpreting the deed than by a reference to the plat, whether we treat it as a valid plat, or a mere private plat made by the grantor for the purpose of facilitating sales of land. There is nothing in the case, except the plat, to afford any light upon the subject. An examination of the plat shows the village laid out into blocks, some of which are squares and some parallelograms. Some of each are subdivided into lots, others are not. Of the squares, some are marked as squares, thus: “Church Square,” “Jail Square,” “Public Square or Court-House Square,” and ‘Academy Square,” “Burial Ground,” “School Lot;” the last two, however, not being squares. We think a reasonable construction of the deed, in view of the circumstances under which it was made, leads to the exclusion of Church Square from the lands conveyed by Richardson to Sally Bronson. It follows that Johnson Patrick acquired title to the reversionary interest by virtue of the deed from Richardson dated March 8, 1838, and, as we have seen, it was conveyed by him to Arnold. On January 3, 1839, Arnold made two deeds, and this title of the plaintiffs depends on which one conveyed the reversion to these squares; the St. Luke’s Episcopal Society being then in possession of the premises, and having erected a church edifice tbereon. The first of these deeds to be recorded was a quitclaim deed to Burdick and Sheldon, conveying the premises “conveyed by Titus Bronson and his wife to John Berdan by a deed ” therein described. The second was the deed to Patrick, recorded in 1856, and this also was a quitclaim deed.

We will next examine the deed to Berdan, for only by the construction of that deed can we determine whether the squares were included in the deed from Arnold to Burdick and Sheldon. The description was as follows:

“The undivided one-half of the west half of the southwest quarter, also the west half of the southwest quarter, of section number 15, in township number 2 south, and range 11 west, Kalamazoo, Mich., excepting and reserving from sale in the last-mentioned lot the following village lots and parcels of land, namely: One parcel of land, about 11 rods wide, extending from Water street north to east and west quarter section line of said section 15. Also one other parcel of land extending from Main street north to said quarter section line, being 8 rods wide. The former of said parcels having been heretofore deeded to Anthony Cooley. And also the following village lots in the village of Bronson, numbered, according to the last recorded plat of said lots, as follows, namely: 117-two lots north numbered, lying between said lots number 1 and 17. Also lots number 112, 22, 25, 37, 33, 34, 78, 39, 40, 44; said lot 44 being subject to a lease for ten years. Also lots 47, 48, 50, 52, 54, 60, 61, 62, 63, and 56. Also the lots lying between South street and the south line of said section 15. Also two fractional lots lying between lots 33 and 39 on the west line of said section 15. Also parcel of land 3 rods by 8 lying immediately behind lot number 32, fronting on Main street. Together with all the ground intended for streets and public purposes according to the plat of said village, and together with all the privileges and appurtenances to said land in any way pertaining. To have and to hold the said premises as above described, with the appurtenances, unto the said John Berdan, his heirs and assigns, and to his and their use and behoof forever.”

The instrument concluded with the usual covenants of warranty as contained in warranty deeds.

We have already said that the deed from Richardson to Sally Bronson excepted the squares, and it necessarily follows that Berdan took no interest in the squares by this deed. But it might not be a fair construction to put upon the deed from Arnold to Burdick and Sheldon to say that it was meant to convey only what Berdan had acquired title to by the former deed. If we interpret the meaning to be that the description in the deed to Burdick and Sheldon from Arnold should be the same as that in the deed to Berdan, the plaintiffs’ title fails if the clause reading, “together with all the ground intended for streets and public purposes according to the plat,” etc., is to be construed to be a conveyance, whereas it stands if it is to be treated as an exception. Our deliberate conviction, from the language used, is that it was intended as an exception, because it would seem improbable that Bronson and wife would sell the streets and public grounds and except the lots, and because it seems the natural effect of the language used. This brings us to the conclusion that the plaintiffs have at the least a reversionary interest in this land on the face of the conveyances.

It is contended that a title was gained by adverse possession. The defendant cannot well dispute the claim that its grantor has occupied by virtue of a dedication. Its counsel strenuously insist that it occupied under a statutory dedication, while counsel for the plaintiffs as earnestly assert that it occupied under a common-law dedication, or its equivalent. The testimony shows that the society erected its first church under the terms of the plat, and there is nothing to indicate that it asserted title in opposition to Eichardson’s rights for the statutory period necessary to a title by adverse possession. We have said that the dedication gains nothing by the statute. The plat only serves to show what the owner intended, and to make certain the terms under which the St. Luke’s Society erected its buildings and maintained possession, from which the offer ripened into a dedication. It is evidence as an act in pais of a dedication at common law. Lessee of Village of Fulton v. Mehrenfeld, 8 Ohio St. 440. The essential elements of hostility and an adverse claim for the necessary period are wanting. All parties at all times seem to have understood that the premises were occupied under the dedication by Eichardson, and during later years the recognition of this has been evidenced by efforts to secure deeds from persons in a position to set up claims to a reversionary interest. The evidence shows that the deed from St. Luke’s Society was a quitclaim, and that the defendant has secured an undivided interest therein, and that there is, therefore, under the paper title, an estate in common between the plaintiffs and the defendant in the reversion. Thus, in 1886 the heirs of Dan Arnold quit-claimed their interest to Sheldon, and in March, 1887, Sheldon gave a deed to Stockbridge, who also, about the same time, secured deeds from several of the heirs of Johnson Patrick.

There is no doubt of the abandonment of the premises by St. Luke’s Church. It sold and vácated the lot and building, and the defendant, after obtaining a deed, demolished the church, and erected a building adapted to its own wants, and, presumably, to the objects of its organization. It is said that these are religious, and that the lot is still devoted to the purposes designed by the proprietor in his offer of dedication. Had the proprietor dedicated directly to St. Luke’s Episcopal Society, the case would have been no different in effect than it is now. He gave to that society, when organized, the use of the premises upon condition of its erecting a building upon them. That a church was intended no one can doubt; and continued user of the gift was, as it is in all such cases, a condition. We cannot look upon this as a passing of title to land upon condition subsequent.. We do not mean to say that a misuser necessarily works a reversion to the holder of the fee, but a total abandonment does. Wanzer v. Blanchard, 3 Mich. 11; Board of Sup'rs of Kent Co. v. City of Grand Rapids, 61 Mich. 144; Hunter v. Trustees of Sandy Hill, supra. There was a total abandonment in this case, and the plainest principles of justice require that the original holder’s claim should be recognized.

The most forcible reasons given for maintaining a right to the fee in the defendant are the long occupancy of the premises by the St. Luke’s Society, its attempt to convey them, the erection of a costly building thereon without opposition, and the continuance of the devotion of the land to pious uses. As we have said, the abandonment was complete. The quitclaim deed from St. Luke’s Society does not raise a presumption that it was attempting to_ do more than to abandon the premises to Stockbridge, who had acquired an interest in the reversion. The erection of the building was at most an improvement of the land by a tenant in common, and therefore within the protection of a court of equity in proceedings for partition (Van Ormer v. Harley, 102 Iowa, 158); while to hold that a dedication of land for the use of a particular sect would justify the extension of the gift to any pious use by any other association of another denomination, or, indeed, not denominational, would be an arbitrary exercise of judicial power, without authority of law. The status of the parties is that the proprietor dedicated the property to a use. The gift was accepted, and the property occupied until the desire for a new church and a large money consideration induced an abandonment by the St. Luke’s Society. Whether the purposes for which the proprietor dedicated the land had been fully accomplished, and the expected benefits to him had accrued, does not appear, and the church does not seem to have concerned itself with that question. It was under no legal obligation to do so, and there may have been no moral obligation upon it to occupy longer than it chose. It certainly had no further legal or moral claim to any interest after abandonment, unless it be the alleged release by Johnson Patrick, which is neither produced nor proven to have been made. We are therefore constrained to hold that the land has reverted to the holder of the original title.

The record shows that all of the testimony in the case is before us, and from the undisputed facts we are able to say that the plaintiffs should have recovered.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    SCHMITTDIEL v. MOORE.

    1. Mortgages — Tender.
    A tender of payment of a mortgage by a junior incumbrancer, accompanied by a demand for an assignment, does not extinguish the mortgage.
    2. Same — Conversion by Senior Mortgagee — Trover.
    A junior mortgagee may maintain trover against a senior mortgagee who converted the security after the junior incumbrancer had tendered him the amount of the senior mortgage.
    3. Same — Measure of Damages.
    The measure of damages in such action, where the property equaled in value both mortgages, is the amount of the junior lien.

      Error to "Wayne; Donovan, J.
    Submitted November 15, 1898.
    Decided May 23, 1899.
    Trover by John S. Scbmittdiel, trustee, against Joseph B. Moore, trustee, John Hurley, and John H. Walsh. Fropi a judgment for plaintiff, defendants bring error.
    Affirmed.

      W. F. Atkinson and John Miner, for appellants.

      George W. Radford and T. F. Tarsney (Moore & Moore, of counsel), for appellee.

       Rehearing denied July 11, 1899.

   Montgomery, J.

This case has once been considered in this court. A report of the former hearing will be found in 101 Mich. 590. The facts of the case as they appeared on that hearing are fully set out, and we need not repeat them here. It will suffice to refer to such additional facts as were made to appear on the second trial. On the former hearing the case was reversed for the reason that the testimony failed to show that the tender made on behalf of plaintiff was absolute, but that it was made a condition to the acceptance of such tender that the first mortgagee assign to plaintiff, not only the first mortgage, but certain notes containing the indorsement of John Hurley. On the second trial the testimony tended to show, and the jury found, that a tender was made, accompanied by a demand of an assignment of the mortgage only. This occurred after the 'first tender was made, and there is in the record abundant testimony to support the finding of the jury in that regard.

It is contended by defendants’ counsel that the effect of the tender, accompanied by a demand of an assignment of the mortgage, did not operate to discharge the first mortgage, and that the plaintiff’s remedy for the refusal to accept the tender is equitable, and not legal. This precise question was not considered in our former opinion, and, so far as the record discloses, has never been decided in this State. The decisions are abundant that a tender of absolute payment discharges the lien of the mortgage. It is equally clear that a subsequent incumbrancer may tender payment. Sager v. Tupper, 35 Mich. 134; Proctor v. Robinson, Id. 294; Lucking v. Wesson, 25 Mich. 443. But does a tender of payment, accompanied by a demand for an assignment, extinguish the mortgage ? It is not the purpose of such a tender. The purpose on the part of the subsequent incumbrancer is to keep the lien alive, and to enforce it against the general owner. In Proctor v. Robinson, supra, the question was whether Robinson had discharged the incumbrance by a tender. The court said:

“Before yielding to a defense of such a nature, and causing such a result, the court is bound to insist on clear proof, and such proof has not been given. On the contrary, the whole facts lead to an opinion that there was no tender, in the sense of an offer made and understood as one to cancel the lien, and the theory of the defense required the establishment of a tender of that kind. An offer of money by a subsequent incumbrancer for the purpose of acquiring a prior incumbrance, or as a step preparatory to a bill to redeem, is quite different in its spirit and equitable bearings.”

In Frost v. Yonkers Savings Bank, 70 N. Y. 553 (26 Am. Rep. 627), which was a case of refusal by the first mortgagee of a tender by a subsequent mortgagee, with a demand for an assignment, such as made in this case, the court say:

“ If one desires to make a tender which shall destroy the lien of an incumbrance, and have, so far as concerns it, the effect of payment, he must make an absolute tender of payment, which, if received, will discharge the debt and the incumbrance. Here no such tender was made. "What the plaintiff did was a tender in the exercise of his right of redemption, with a demand that the mortgage and judgment be transferred to him. He desired to become a purchaser of the securities, and in such case the tender does not operate to destroy the securities, but gives the party a footing in equity to compel the transfer demanded, if he is otherwise entitled to it. Hence it was properly held below that the tender did not cancel or discharge the lien of the mortgage or judgment.” •

In Sheld. Subr. § 16, the English rule is stated as follows:

“The prior mortgagee ought, without judicial proceedings, to accept an offer of payment made to him by a junior incumbrancer, and thereupon to convey to him the mortgaged estate', with or without the concurrence of the mortgagor; and, if he refuses to do so on demand, and subsequently acquires from the mortgagor the equity of redemption, which was of sufficient value to pay the junior incumbrance, he will be himself held for the amount of the latter. ”

We think that these authorities, to the extent that they assert that a tender of payment on condition that an assignment be made does not operate to discharge the prior incumbrance, state a reasonable and just doctrine.

The second mortgagee may or may not be damaged by the refusal of the prior incumbrancer to assign. If the prior incumbrance exceeds in amount or equals the value of the property, it is difficult to see how the second incumbrancer is in any way damaged by such a refusal. True, in the protection of his interest, the second mortgagee has the right to become a purchaser, but it would seem that, if this right be enforced in his favor iit equity, and particularly if he is fully protected to the extent of the value of his security as it was at the date of the tender, this is the extent to which the law ought to go in his protection. While the cases cited contain expressions indicating that there is a remedy in equity, we do not think it follows that the sole remedy is equitable. After such a tender, the first mortgagee is not entitled to cut off the right of the junior incumbrancer to the value of the property in excess of his (the first mortgagee’s) lien. The plaintiff, as mortgagee, may maintain trover for conversion of the property by one who, as against him, has no right to dispose of the property. Grove v. Wise, 39 Mich. 161; Wright v. Starks, 77 Mich. 221. After the tender by the plaintiff, the mortgagee had no right to dispose of the equity of redemption in such manner as to impair plaintiff’s rights.

The circuit judge stated in his charge that it was conceded that there was property enough to pay both mortgages. This does not appear to have been challenged at the time, although error has since been assigned on it; but we think it a fair statement of the testimony. This being so, the plaintiff’s damages would be the amount of his mortgage.

It is contended that Moore and Hurley were not responsible for the conversion. The assignment to Walsh was made after the demand, but with the intention of continuing the foreclosure proceedings to sale. This was in fact done, Mr. Atkinson acting on 'behalf of all the parties. We do not think any injustice was done in holding them all responsible.

Error is assigned on the charge of the court; but, in view of the special findings by the jury, we think no err'or to the prejudice of the defendants was committed.

Judgment affirmed.

The other Justices concurred.


author: Long, J. Per Curiam.

text:
    MORROW v. MURPHY.
    1. Master and Servant — Profit Sharing — Partnership.
    A contract whereby one agrees to superintend and manage the business of another for a specified yearly compensation, together with a certain share of the net profits, does not make the parties partners.
    2. Same — Accounting—Unliquidated Damages.-
    In fixing the amount due an employé entitled to receive a certain percentage of the net profits, pending actions in tort brought against the employer, in which the damages are unliquidated, and over which the employé has no control, cannot be taken into consideration.
    3. Same — Interest on Investment.
    In estimating the amount of the profits in which the employé is entitled to share, the employer should not be allowed interest on his investment, where not provided for in the contract.
    4. Same — Custom.
    A custom of charging to the expense account material and labor furnished to the superintendent of a manufacturing concern for his private use will not bind the employer unless he knows of it.
    Error to Wayne; Frazer, J.
    Submitted January 4,. 1899; original opinion May 23, 1899.
    Rehearing (plaintiff’s application) granted July 11, 1899;
    final opinion, modifying the earlier one, October 3, 1899.

      Assumpsit by George L. K. Morrow against Thomas Murphy to recover a balance due on a contract for services. From a judgment for plaintiff, defendant brings error.
    Modified and affirmed.

      Moore & Moore, for appellant.

      Thomas T. Leete, Jr., for appellee.
   Long, J.

Plaintiff brought suit in assumpsit against defendant for services, claiming that he had- worked for defendant for a number of years under an agreement that he should receive for his services $1,'200 a year as salary, and 8 per cent, of the net profits; that the services had terminated; and that there was a balance due him of $5,000. Defendant pleaded the general issue, with notice of set-off and recoupment. The case was referred, and the referee made findings, and settled a bill of exceptions, from which it appears that, in 1889, the plaintiff entered into a contract with defendant to superintend and manage the defendant’s factory, for which he was to receive $1,200 a year, and 8 per cent, of the net profits. The business was done in the name of the Murphy Iron Works. The original contract was renewed from time to time, without material change, sometimes by a new contract, and at other times by a verbal continuance of a former one, until December 31, 1896, when the contract relations ceased. When the time came for a final separation and settlement, defendant caused an inventory of the property on hand to be made. Plaintiff refused to settle on that basis,- and brought this suit. The referee found that plaintiff’s salary had been paid in full; that he had drawn $17,970.12 on account of profits; and that there was still due him, on net profits, the sum of $1,455.62. A bill of ■ exceptions, with assignments of error, was settled, and filed with the report of the referee. Exceptions to the report were also filed, 'the exceptions were overruled by the court below, and defendant brings error.

Defendant claims here that the plaintiff cannot recover in this action, because (1) the parties were partners, the accounts unsettled, and the sole remedy is in equity; (2) it is impossible in the present suit at law to settle the accounts or fix the rights of the parties.

It is unnecessary to set out the whole contract here to ■ determine the question whether the parties were partners. The contract recites that—

“ This contract is made * * * between Thomas Murphy, proprietor of the Murphy Iron Works, of the one part, and George L. K. Morrow, * * * of the other part, whereby the said George L. K. Morrow agrees to manage and superintend the machine and foundry business carried on by the said Thomas Murphy, under the name of the Murphy Iron Works, * * * for which the said Thomas Murphy ágrees to pay the said George L. IC Morrow the sum of * * * ; also that, should Thomas Murphy desire to sell out part or the whole of the business, then this contract ceases at that time. * * * ”

From the wording of the contract, the pleadings in the case, and testimony given by Mr. Murphy, it is evident that the parties did not become partners. The notice under the plea sets out that the work and labor for which the action was brought was done under a special contract or agreement in writing, by the terms of which defendant agreed to hire the plaintiff at an agreed compensation; that the plaintiff left his employment; that he neglected his duties as superintendent, and that defendant was entitled to his best mechanical ability; that, by such inattention to his duties as superintendent and manager, the business of the defendant was injured. Mr. Murphy’s testimony is in keeping with this notice. The fact that the contract provides that the plaintiff should have a share of the profits does not necessarily make the parties partners. The contract simply fixes the measure of plaintiff’s compensation for his services as superintendent and manager. Stockman v. Michell, 109, Mich. 349.

It appeared that three suits were pending against Mr. Murphy at the time this action was brought, and that those suits were still undetermined at the time of the report of the referee. It is contended by defendant that no settlement and adjustment of the accounts could be made, and no' determination of the net profits had, until after these suits were disposed of. Two of these actions were in tort, and the damages unliquidated. In the first suit, defendant was sued in Chicago for libel. The second suit was for the unlawful discharge of an apprentice. The third suit was a case in which Mr. Murphy sued to recover on an account of $625. The defense in that case was that the Murphy Iron Works guaranteed that the furnaces put in should be smokeless, and that they were not as guaranteed. The referee did not take these matters into consideration in fixing the amount due plaintiff on percentages. We think that the referee was correct in this. There was no indebtedness in the actions of tort, and could be none, until they were in judgment, and there was no amount which the referee could deduct from the profits. Hill v. Bowman, 35 Mich. 191. Plaintiff had no control over these suits. The .contract, in effect, provides for a settlement at the end of the year, and that the percentages on accounts unpaid at the time of the year’s settlement, which were contracted during the year, were to be paid as soon as such accounts were collected or paid. The referee found that there were certain accounts due and unpaid, which remained uncollected. These accounts were not determined in fixing the amount of the plaintiff’s percentage, and the suits were not considered in the computation. Of the third suit, which was to recover on the account of $625, we think no competent evidence was given which would have warranted the referee in taking it into account.

It is contended that the referee charged the defendant too much for the iron castings. Castings had been sold during the year 1896 at from two to five cents per pound. The referee fixed the price at two and a quarter cents. The testimony supports this finding.

Defendant claims that the referee erred in refusing to credit -him interest on the part of the purchase price of the plant paid by him. The defendant was receiving 92 per cent, of the profits as a consideration for the investment he had in the business. He also received $3,000 salary per year. We find nothing in the contract which provided for interest on the investment by the defendant, and the referee was not in error in that respect.

There is one item in the account in which we think the referee erred. He found that the plaintiff, while superintendent and manager, was indebted to the Murphy Iron Works for material and labor furnished to him by it for his own private use to the amount of $388.19. He also found that it was the custom to charge this to the expense account; that Mr. Murphy was also indebted for material and labor furnished for his private use, but the amount could not be exactly determined. He refused to charge ' plaintiff this, because he says it was the custom to charge this to expense account. We think the evidence does not show that Mr. Murphy knew of any such custom, and, in fact, it appears that Mr. Murphy’s private work was charged to himself. Under the contract, Mr. Murphy ■was entitled to 92 per cent, of this $388.19, which would amount to $357.13. This amount must be deducted from the plaintiff’s judgment. Aside from this we find no error in the case. With this deduction from the judgment, it will he affirmed. Defendant will recover the costs of this court.

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

ON REHEARING.

Per Curiam.

A rehearing having been granted in this case, we have re-examined the record, and find that an error was committed in charging the plaintiff in the former opinion, ante, 204, in his account, the sum of $357.13. It should be but $128.25, and the judgment will be corrected in that respect.

Counsel for plaintiff contends that, in view of this deduction from the original judgment, the plaintiff should be entitled to his costs in this court. We cannot agree with this contention. The plaintiff recovered judgment and his costs in the court below. That judgment for costs will stand. The judgment will be reduced here by the $128.25, and the costs of this court awarded to the defendant. No costs on the rehearing will be allowed.


text:
    BEAKLEY v. ROBERT.
    Recording Laws — Quitclaim Deeds.
    The recording of a quitclaim, deed by a grantee for value, without notice, does not give priority over a senior warranty deed defectively recorded; a pui’chaser by quitclaim not being a bona fide purchaser within the recording laws (3 Comp. Laws 1897, §8988).
    Error to Houghton; Hubbell, J.
    Submitted January 6, 1899.
    Decided May 23, 1899.
    Replevin by Albert Beakley and George Hall against Prosper Robert. From a judgment for plaintiff's, defendant brings error.
    Affirmed.

      W. E. Gray, for appellant.

      Chadbourne & Rees, for appellees.
   Hooker, J.

The defendant has appealed from an adverse judgment in an action of replevin. On the trial, his defense consisted in a claim of title to the land from which the cord-wood replevied was cut. Streeter was the common grantor of the parties. March 20, 1873, he conveyed, by warranty deed, to Moralee and Olds, and the deed was recorded, but with a mistake in the description. They afterwards deeded ‘to the plaintiffs, these deeds being duly recorded. On July 17, 1886, Streeter gave a quitclaim deed of the premises to Cameron, and on December 24, 1887, Cameron quitclaimed to Prosper Robert, the defendant, who took his deed without notice, unless the erroneous record was notice. His deed being recorded, it is now claimed that he acquired title by virtue of the recording laws (3 Comp. Laws 1897, § 8988), which make the deed» of a bona fide purchaser in good faith, for a valuable consideration, valid, in preference to a prior unrecorded deed. In this instance, however, the defendant’s chain of title from the common grantor to himself contains nothing but quitclaim deeds. Streeter, having once sold and conveyed it, had nothing left to convey. Authorities are numerous that one who takes by deed of quitclaim is not a bona fide purchaser. Thus, it is said in May v. Le Claire, 11 Wall. 217, that “one who has acquired his title by a quitclaim deed cannot be regarded as a bona fide purchaser without notice;” in Oliver v. Piatt, 3 How. 333, “A purchaser by a deed of quitclaim, without any covenant of warranty, is not entitled to protection in a court of equity as a purchaser for a valuable consideration, without notice, and he takes only what the vendor could lawfully convey;” in Dickerson v. Colgrove, 100 U. S. 578, “A grantee by deed of quitclaim is not a bond fide holder;” and in Baker v. Humphrey, 101 U. S. 494, “No one taking a quitclaim deed can stand in the relation of a bona fide purchaser.” In the case of DeVeaux v. Fosbender, 57 Mich. 588, the late Mr. Justice Campbell expressed a doubt of the bona fide character of such a holding; while the case of Peters v. Cartier, 80 Mich. 129 (20 Am. St. Rep. 508), expressly holds such grantee not to be a bona fide purchaser in a case substantially like the present. See, also, Johnson v. Williams, 37 Kan. 181 (1 Am. St. Rep. 243), where many authorities are cited.

I am of the opinion that the judgment should be affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    JONES v. PREFERRED BANKERS’ LIFE ASSURANCE CO.
    1. Life Insurance — Nonpayment of Assessment — Waiver.
    The secretary of an insurance company, who was its managing officer, informed an insured, who was delinquent in payment of an assessment, and desired to pay the same and be reinstated, that he would have to furnish a health certificate from the company’s physician, for which he provided the insured with proper blanks, which were properly executed and returned to the secretary. Held, that a forfeiture for nonpayment was waived.
    2. Same — Avoidance of Waiver.
    The waiver could not be avoided by the secretary’s procuring from the physician, without the knowledge of the insured, a supplemental statement that the insured’s heart action was somewhat irregular, and he could not recommend him as a good risk.
    8. Same — Custom—Statements of Decedent.
    In an action by the beneficiary in a life-insurance certificate, where a forfeiture for the nonpayment of an assessment is set up in defense, and the plaintiff claims that such defense was waived by the company in accord with its settled custom to reinstate delinquent members in good health, a statement of the deceased in a talk with the secretary of the company, tending to show the deceased’s knowledge of the custom, may be shown by witnesses who overheard it.
    4. Same — Estoppel.
    Where it is the custom of an insurance company to accept payment of delinquent assessments if members are in good health, it is estopped to claim a forfeiture if a member, relying on the custom, fails to pay an assessment within the time required, and is in good health when he offers payment.
    6. Same — Instructions—Reading Testimony to Jury.
    For the court to read to the jury in . his instructions, in an action on a life-insurance certificate, the testimony of one of defendant’s witnesses, on which the question of waiver of a forfeiture pleaded in defense mainly depends, does not give it such undue prominence as to require the reversal of a judgment for plaintiff.

      6. Same — Assessments—Tender—When not Required.
    Where an insurance company claims a forfeiture of an insurance certificate for nonpayment of assessments, and refuses absolutely to receive such assessments when payment is offered, the holder is not required actually to produce and tender the money in order to protect his rights.
    7. Same — Physician’s Testimony — Privilege.
    An insurance certificate provided that it should be void if any of the answers in the application were untrue. The applica- . tion contained the representation that the applicant had not consulted a physician except for la grippe, when he was attended by a specified .physician. Upon the trial of an action on the policy, the physician was called as a witness for defendant, and was asked if he had treated the applicant for any disease of the heart. It appeared that any information possessed by the witness as to the insured’s condition was acquired by observation, and from the latter’s statements, while witness was acting as his physician. Held, that the question was properly excluded, in view of 2 How. Stat. § 7516, rendering inadmissible the testimony of physicians as to information acquired in attending patients, necessary to enable them to prescribe.
    8. Same — Lapse—Reinstatement.
    Where an insured, whose certificate of insurance has lapsed for nonpayment of an assessment, does all that the company requires to procure his reinstatement, and reinstatement is then refused, he may rest there upon his rights, and need not apply at once to the courts for the relief desired.
    Error to Ingham; Person, J.
    Submitted January 6, 1899.
    Decided May 23, 1899.

      Assumpsit by Lucy Jones against the Preferred Bankers’ Life Assurance Company on certain insurance certificates. From' a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant is organized under Act No. 187, Pub. Acts 1887 (3 How. Stat. § 3960c et seq.), and acts amendatory thereof. One Owen Jones became a member of said company, January 20, 1894, receiving three certificates of insurance, for $1,000 each; his wife, the plaintiff, being the beneficiary. Under the terms of these certificates and the by-laws of the company, assessments were made quarterly, payable at any depository bank, or at the office of the company at Lansing, on any business day during the month succeeding the notice, viz., January, April, July, and October. Mr. Jones paid his assessments at the office of the company until the March assessment, 1896-, for $6.30. Notice of this assessment was dated March 16th, was received by Mr. Jones, and was. payable any time during the month of April. He failed to pay. A few days after the time for payment had expired, Mr. Jones applied to the secretary of the company, at his office, and offered to pay the premium. Mr. Randall, the secretary, informed him that he would have to furnish a health certificate. A blank health certificate was furnished him. He went to Dr. Hagadorn, the physician for the company, by the direction of the secretary, obtained the certificate, and returned it to the company. This certificate was signed by Mr. Jones, stated that he was in good health, and closed as follows:
    “This statement is given as a part of the consideration for a certificate of reinstatement, which shall .be void if the above representation be untrue; and I agree to furnish, at my own expense, a medical examination, if required by said assurance company, and submit to the action of said board of trustees on the question of my reinstatement to membership.”
    Dr. Hagadorn attached his certificate, saying: “I believe the same to be correct in every particular, and that he is now in perfect health.” Some time between one and four weeks afterwards Mr. Randall took this certificate to Dr. Hagadorn, and, as the doctor testified, “asked me if I could not put something else on there, so it would help him out somewhat.” At Randall’s request, the doctor added, underneath his certificate and signature, the following: “Heart action very rapid, and somewhat irregular. Cannot recommend him as a good risk.” This statement was unsigned. Mr. Jones knew nothing about it. Mr. Randall testified that he had heard that Mr. Jones was not in good health, and he declined to reinstate him on account of this information. Whether the matter was ever placed before the board of trustees does not appear. It is perhaps a fair inference that it was not. At any rate, there is no evidence of any action by them. A witness, Thomas Smith, testified that he heard a conversation in May between Mr. Randall and Mr. Jones, which he relates as follows:
    “Mr. Jones wanted him [ Randall] to accept his money for the insurance, and Mr. Randall would not do it, and Mr. Jones said he ought to be used the same as the others were used, — the other members.”
    Mr. Jones was not reinstated, and defendant gave testimony tending to show statements made by him that he had abandoned the insurance in this company. He took no other steps to secure his reinstatement, and died January 12, 1897. Soon after his death, plaintiff, through her attorney, wrote to defendant, requesting it to furnish blank proofs of death. The defendant refused this request, stating ‘ ‘ that at the time of his death he was not a member of the company.” Thereupon this suit was instituted to recover upon these three certificates, claiming that they were in force at the time of Mr. Jones’ death.
    Three defenses were interposed:

      First. That by the failure to pay the assessment in April, 1896, his rights as a member and his certificates became forfeited and lapsed.

      Second. That the statements in his application were untrue, by reason of which the policies were void.

      Third. That he became intemperate prior to his death.
    The provisions of the certificates in regard to forfeiture were:
    (1) That upon failure to pay any assessment for death loss, or annual dues, his guaranty deposit ($21) shall be forfeited, and his membership shall thereupon cease.
    (2) They shall become null and void if the member is or shall become habitually intemperate in the use of intoxicating liquors.

      (3) If such certificates shall have been obtained or continued contrary to, or in violation of, the articles of association, by-laws, rules, or regulations of this assurance company.
    The provision in regard to forfeiture and reinstatement is section 2 of article 2 of the by-laws, and reads as follows:
    “Upon the failure of any member to pay his assessments or annual dues within the time provided by the by-laws, his membership shall be forfeited, and his right to any share or interest in the funds or property of this assurance company shall cease absolutely at the expiration- of the time stipulated in which such payments are required to be made: Provided, however, that the board of trustees may reinstate delinquent members on such terms as to them may be deemed just and equitable.”
    The case was submitted to the jury upon the theory that the forfeiture for nonpayment of dues was waived, and upon this theory verdict and judgment went for the plaintiff.

      Frank E. Robson, for appellant.

      L. B. & H. M. Gardner, for appellee.
   Grant, C. J.

(after stating the facts). 1. It is contended by counsel for the defendant that there is no dispute on the testimony; that the policies were forfeited by the failure of Mr. Jones to pay his assessments in April; that the company had a right to refuse to reinstate him, if in their judgment he had become impaired as an insurance risk; that their action, in the absence of fraud, was final; that there was no waiver by reason of the statements made by any officer of the company; and that, therefore, the court should have directed a verdict for the defendant. This presents the principal question in the case. Mr. Randall was the managing officer of the company, and appears to have been intrusted with the full management of its business. The office was at Lansing, and under his control, and he resided there. If it be conceded that Mr. Jones' policies had become forfeited by the nonpayment of these assessments, the authorities are quite uniform that this-forfeiture might be waived. The law does not favor forfeitures, in fact, abhors them, and will avoid them whenever any reasonable ground can be found for so doing. Hartford, etc., Ins. Co. v. Unsell, 144 U. S. 439, and authorities there cited. It ‘is undisputed that Mr. Randall informed Mr. Jones, within a few days after the time limited for payment, that he would have to furnish a health certificate from the physician of the company, and that he gave Jones such a certificate to be filled out. This he did, and the certificate, in due form, was given to the company, through Mr. Randall. This was a waiver of the failure to pay, and entitled Mr. Jones to reinstatement. This action of the company was not avoided by the subsequent act of Mr. Randall in taking the certificate to the physician, and inducing him to make the indorsement thereon which he did. Miesell v. Insurance Co., 76 N. Y. 115; Jackson v. Relief Ass’n, 78 Wis. 463. The learned counsel for the defendant argues that there is nothing in the testimony to indicate that Mr. Jones was informed that his payment would be accepted after maturity if he were in good health. We think it a fair inference from the testimony that it was the understanding between Mr. Jones and Mr. Randall that the only thing required for him to do, in order to be reinstated, was the procurement • of this certificate and the payment of his money. It was in accordance with the usage of the defendant. It is not necessary that there be an express waiver; it may be implied from circumstances. Mobile Life Ins. Co. v. Pruett, 74 Ala. 487, and authorities there cited.

2. While it is true that Mr. Jones paid all his assessments, except this last, at the office of the company, it is established by the testimony of Mr. Randall, not only that he was in the habit of collecting delinquent assessments both with and without certificates of health, but that he told Mr. Jones that the company undertook to go and see its members who lived here at Lansing, upon the street, that he could get at handily, and collect their assessments. This was in reply to a question from Mr. Jones asking where he should make his payments. Randall had then collected his membership ,-fee. Besides, the statement made by Mr. Jones tí) Mr. Randall, which the latter did not at the time deny, that “he [Jones] was entitled to the same treatment as other members,” is evidence tending to show that Jones understood this method of doing business. It is urged that this statement of Mr. Jones was hearsay, made in his own interest, and against the interest of the defendant, and after the controversy had arisen. The conversation took place while Mr. Jones was insisting on his rights, and referred to the custom testified to by Mr. Randall. We think it was legitimate evidence to show knowledge on the part of Mr. Jones of the custom. In our opinion, there was enough in the case to go to the jury upon the question of waiver, and to justify the conclusion of the jury that Mr. Jones acted upon it. Upon this point the court instructed the jury as follows:

“Now, if you find that the language and actions of this company, through Mr. Randall, the head of its executive management, clearly indicated on the part of the society that it would not take an advantage of the default of the member here situated as Mr. Jones was, if he did not pay within the 30 days, but that it would accept his payment after that time, providing he were in good health, and if, after the expiration of this month of April, he was in good health, and Mr. Jones knew of this, and relied upon it, 'and believed it, and was honest in it, the company is estopped from setting up the forfeiture. If the company’s conduct was not such as to fairly indicate an intention so to do, but was merely the extension of favors here and there, then it would not be an estoppel. But if the conduct was such as to give people — give Mr. Jones— to understand, as I said, that he might pay after the 30 days, and it would 'be accepted if he was in good health, then the company is estopped, if he honestly believed that, and acted upon it, providing he was in good health at the expiration of that 30 days, and during the time following, when the negotiations took place between the .parties.”

This instruction is fully sustained by the authorities. Nibl. Acc. Ins. & Ben. Soc. § 299; 2 Bac. Ben. Soc. §§ 361, 433; Loughridge v. Endowment Ass’n, 84 Iowa, 141; Helme v. Insurance Co., 61 Pa. St. 109 (100 Am. Dec. 621).

3. It is urged that undue prominence was given to the testimony of Mr. Randall, which the .court in its instructions read to the jury. We think not. The question of waiver depended mainly upon the testimony of Mr. Randall, and, under the circumstances, we do not think that such undue prominence was given to it as to justify a reversal of the case upon this ground.

4. Error is assigned upon the statement made in the instructions to the jury, viz., that they must determine “whether the probabilities are that he [Jones] knew it.” The court in this portion of the instructions was referring to this question of waiver. That expression was used in the following connection:

“ The plaintiff in this case asserts that the forfeiture of the policy alleged and insisted upon by the defendant has been waived by it, and that it is now estopped to assert it as against the plaintiff. The burden of proof to sustain such waiver rests upon the plaintiff. I have told you that, in order to create an estoppel as against this company and in favor of Owen Jones, under the claim of the plaintiff herein, it must appear that there has been such a course of dealing between Mr. Jones himself and the assurance company, and between the assurance company and others here in the city, known to Mr. Jones, that Owen Jones was led to believe, and had a right to believe, that if he failed to make his payment in April, 1896, it would be accepted thereafter, or that he would be reinstated upon the payment of his assessment at some date after the maturity of the date of payment, and that, in omitting to make this payment, he did rely upon such a course of dealing. Now, I charge you, gentlemen, further, Mr. Jones not being here to tell for himself what he relied upon or what he knew, that you must determine that from all the evidence in the case, from the conversations between him and Mr. Randall, from the length of time that he was here, the extent of the company’s conduct as detailed by Mr. Randall, the extent of the district that defendant went over, and from all the circumstances, what Mr. Jones did and said, so far as the evidence discloses it, you are to determine from that whether Mr. Jones did know about this course on the part of the company, whether the probabilities are that he knew it, and you believe that he knew it from the evidence, and whether he relied upon it, and whether he was honest in that reliance.”

The court was dealing with a case where the party with whom the transaction was had was dead, and could not speak. The jury, therefore, were charged with the duty to determine the question of waiver from the conduct of the parties, the deceased’s knowledge of the method of business, and the actual facts of the transaction. The charge, taken as a whole, cannot be construed to have turned the jury loose in the field of speculation, and to have permitted them to find a verdict without any substantial evidence.

5. The court instructed the jury that, if Mr. Randall refused to receive the assessments from Mr. Jones upon his offer to pay, no actual production of ‘the money was necessary. We think the instruction correct. Where the company absolutely denies liability, a tender would be useless, and the law does not require useless things to he done.

6. Mr. Jones, in his application, was asked the questions :

Q. Are you now in good health?
“A. Yes.
Q. Do you usually enjoy good health?
“A. Yes.
Q. Who is your physician ?
“A. Dr. Hayden. * * *
Q. Have you ever had any serious illness or injury, and, if so, when and of what nature?
“A. La grippe slightly, several times. * * *
Q. Have you had any sickness in the last five years?
“A. Nothing more than la grippe, or cold.
“ Q. Give name and residence of the attending physician.
“A. Dr. Hayden.
Q. How long since you consulted a physician?
“A. Four weeks ago.
“ Q. For what disease?
“A. La grippe, or cold.
Q.‘ Give the name and residence of such physician.
“A. Dr. Hayden. * * *
‘ ‘ Q. Have you ever had any of the following diseases: * * * Disease of the heart ?
“A. No.”

The policy provided that, if any of these answers were untrue, the policy should become null and void. Dr. Hayden was called as a witness for the defendant, and, after testifying that he had been consulted by Mr. Jones for la grippe, he was asked: “Were you consulted by Mr. Jones during this period for any other disease than la grippe?” Objection was made to this as incompetent, under 2 How. Stat. § 7516. The doctor also testified that all the information he had pertaining to any alleged complaints of Mr. Jones was acquired during the relation of physician and patient, and that he had no information pertaining to has condition aside from what he obtained by observation and from his statements while acting as his physician. Dr. Hayden was also asked if he treated Mr. Jones at any time for any disease of the heart. These questions were objected to as incompetent under the statute, and the objection sustained. The statute is as follows:

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which informatioia was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”

It is sought to sustain the admission of this testimony under Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894). In that case the deceased had taken out two policies of iaasurance, wa’itten application being made for each. In her first application she stated that some nine or ten years before she had had typhoid fever, and that' her attending physician was Dr. Henderson. In her second application she stated that she had never been sick. In that case the majority of the court was of the opinion that Dr. Henderson might testify to the fact that he had treated her for typhoid fever, and that it did not come within the prohibition of the statute. That decision must be limited to the facts in that case. Mr. Jones had made no other application, and had made no reference to Dr. Hayden as having treated him for a specific disease, aside from that stated in the application for membership in the defendant. We think this case clearly within the prohibition of the statute, and the questions were properly excluded.

7. The court was requested to give the following instruction: .

“If the jury find that Owen Jones made no,payment of the assessment of April, 1896, and made no payment of this assessment afterwards during his lifetime, and stated to other persons that he had dropped it or would pay no more assessments upon it, and took no steps to be reinstated other than to make an application, and took no further steps to keep his membership good or to keep the certificates in force, then I charge you that he .had abandoned the certificates and his membership, and the plaintiff cannot recover, and your judgment should be for the defendant.” _

This was refused. That one may acquiesce in a forfeiture is undoubtedly true. The request assumed certain things to constitute of themselves an abandonment of the policies and acquiescence in the forfeiture. This request would permit a jury to consider, as evidence of such acquiescence, the fact that he had made no payment of the assessments, leaving out of consideration the fact that the company absolutely declined to accept and that he had offered to pay. It also would permit them to find that the failure to take steps to keep his membership good or to be reinstated was evidence of such abandonment and acquiescence. If Mr. Jones had done all that the law required of him to procure his reinstatement, he had a right to rest there upon his rights. The law did not compel him to at once apply to the courts for reinstatement, or to have the policies adjudged to be alive. Miesell v. Insurance Co., supra. The request, as framed, was properly refused.

Judgment affirmed.

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


text:
    WOOD v. GENETT.
    1. Payments — Application.
    A creditor to whom distinct debts are owing may apply payments to either indebtedness, in the absence of a direction by the debtor as to their application.

      2. Mortgages — Foreclosure—Denial op Execution — Evidence.
    In proceedings to foreclose a mortgage, defendant claimed that the mortgage in suit had been satisfied in full by payments which the mortgagee had wrongfully applied to certain other notes and mortgage, the execution of which defendant denied. It appeared that such other notes, which were produced by defendant in court, had been surrendered to him when the payments were made, that he had cut off the signature, and filed the notes with his other papers. While it was shown that defendant was unable to read, or to write other than to sign his name, it appeared that he was methodical in his business, and careful in the matter of tak- ' ing and preserving receipts. The aggregate of all the payments made by him was §2,500, while the total amount of the mortgage in suit was only §2,000. Held, that the improbability of the mortgagor’s overpaying his indebtedness §500 without being aware of the fact, and of the mortgagee’s surrendering into the possession of the defrauded party notes he had never executed, rendered untenable the theory that the notes and'mortgage to which the payments were applied were not executed by the defendant.

      Appeal from Charlevoix; Corbett, J.
    Submitted January 4, 1899.
    Decided May 23, 1899.
    Bill by Mary H. Wood against Maxim Genett and wife to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.
    The bill in this case was filed to foreclose a mortgage dated October 1, 1877, for $1,000, signed by the defendants, who are husband and wife, and given to the complainant. Five promissory notes executed by defendant Maxim, for $200 each, accompanied the mortgage. The first note had been paid and taken up. The others were due in 1880, 1881, 1882, and 1883, respectively. The defense was payment. Many payments were made by defendant Maxim to the complainant after this mortgage was given, — some money, but mostly in horses, cattle, hay, and other personal property raised upon defendants’ farm. There is little dispute over these amounts. The difficulty arises as to their application. Complainant claims that on September 1, 1878, defendant Maxim gave her a promissory note for $361.96, payable on December 1, .1880, and another note for $775, dated November 1, 1878, payable on or before three years thereafter, which was secured by another real-estate mortgage. Sufficient of these amounts paid by defendant to complainant were applied in payment of these notes, and indorsed thereon, the notes surrendered to the defendant, and the mortgage discharged. Complainant’s husband was her agent, and did the entire business with Mr. Genett. Proofs were taken in open court, and the court below dismissed complainant’s bill, holding that the amounts which had been indorsed upon the last two notes mentioned should have been applied in payment of the mortgage and notes involved in this suit. The learned circuit judge in his opinion gives the reasons for his decree as follows:
    “I find from the evidence that it was the desire of Mr. Genett, when he made the various payments, that they should go in discharge of the mortgage now sought to be foreclosed, and that O. D. Wood, the agent of the complainant, so understood it.”
    He further finds that on November 16, 1885, the total amount due upon the mortgage was $2,034,64; that payments had been made thereon amounting to $2,504.80; and that the mortgage was overpaid by $470.16. Any further statement of facts material will be found stated in the opinion.

      Fred W. Mayne, for complainant.

      A. D. Cruickshank, for defendants.
   Grant, C. J.

(after stating the facts).- We cannot concur in the conclusion reached by the learned circuit judge. Counsel for the defendants does not cite any testimony on their part showing any instruction to apply the payments they made upon these specific notes and mortgage. On the contrary, Mr. Wood testified that Mr. Genett directed him to apply payments first upon the $775 mortgage, because it covered more land than did the other mortgage. If no directions were given, then complainant might apply them on either indebtedness. Four indorsements of payments were made upon the $775 note; the last one being made April 2, 1881, at which time the note was surrendered and the mortgage discharged. Several indorsements were also made upon the $361 note, a receipt in full being indorsed thereon November 16, 1885. Mr. Genett took these two notes, and, as was his custom, cut off his signature thereon, and filed them away with other papers. Defendants could not read or write the English language, except that each could write his or her name, and did so upon these mortgages and notes and also upon others. Mr. Genett was a man of considerable business, was evidently methodical, and, while he could not read, was careful to take receipts and to preserve his evidences of payment. There was an open account running between complainant or her agent and the defendant. They had settlements from time to time. Defendant kept no account. Complainant kept no regular book account of the transactions, but «Mr. Wood testified that he made these indorsements upon these various papers at or about the time the payments were'made. Mr. Wood did not surrender the $775 mortgage at the time the note was paid. The disputed notes were produced by Mr. Genett at the hearing. The defendants claim that they never executed the disputed notes and mortgage, but the circuit judge did not decide this question.. Their denials, however, are not very satisfactory. If they, however, are as strong as their counsel claims, and amount to a flat denial, this places Mr. Wood in the position of having committed both the crimes of forgery and perjury, and also of being simple enough to place the evidence thereof deliberately in the possession of the defendants. We think the clear weight of evidence is against the defendants. It does not seem reasonable that Mr. Genett, as early as 1885, had overpaid this mortgage nearly $500 without knowing it. It is alike unreasonable to believe that he took the two disputed notes, with his signature attached' and these payments indorséd thereon, without knowing what they were.

Decree reversed, with the costs of both courts, and decree entered for the complainant in accordance with this opinion. The cause will be remanded to the court helow for further foreclosure proceedings.

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